P L D 1966 Supreme Court 357 (PLP)

B. Z. KAIKAUS, J.‑The facts relating to this appeal by special leave are the following. Sardar Muhammad Akbar Khan Bughti was convicted by a Special Military, Court constituted under Regulation 1‑A of an offence under section 302, P. P. C. and was sentenced to death as well as to a fine of Rs. 5,00,

000. In accordance with Martial Law Order No. 5 the sentence of death was subject to confirmation by the Chief Martial Law Administrator who instead of confirming the sentence commuted it to a sentence of transportation for life and reduced the sentence of fine to Rs. 50,

000. On the 29th June 1961, after Sardar Muhammad Akbar Khan Bughti had been in detention for eighteen months the sentence of transportation for life was commuted to a sentence of imprisonment for a period of fourteen years by the Chief Martial Law Administrator and the sentence of imprisonment was at the same time suspended. Sardar Muhammad Akbar Khan Bughti paid the fine of Rs. 50,000 and got himself released from prison on the 13th July 1961. On the 22nd August 1962, he was arrested under a warrant issued by the District Magistrate, Karachi, which warrant was based on an order passed by the Commander‑in‑Chief of the Pakistan Army on the 16th August 1962, directing that the sentence of fourteen years' rigorous imprisonment which had been suspended be put into execution forthwith. Mir Ahmad Nawaz Khan Bughti, the brother of Sardar Muhammad Akbar Khan Bughti then filed the petition under Article 98 of the Constitution out of which this appeal arises, on the 13th of September 1962, challenging his brother's arrest and detention. The order passed by the Commander‑in‑Chief superseding the order of suspension of sentence did not refer to the provision of law from which he derived the authority to pass this order. However, during the pendency of the writ petition, the President of Pakistan promul gated, on the 22nd October 1962, Ordinance 78 of 1962 which would have the effect of validating the order of the Commander‑in‑Chief. This Ordinance consists of only two sections. According to the first section it was to come into force at once, but was to take effect from the 8th day of June 1962. The second section is reproduced below: "2. (1) Notwithstanding anything contained in any other law for the time being in force, the Commander‑in‑Chief of the Pakistan Army may (a) either with or without any condition pardon any person convicted of an offence by any Special or other Military Court or any other Martial Law Authority constituted under any Martial Law Regulation or Martial Law Order, or remit, reduce, commute or suspend any sentence passed 'on him by any such Court or Authority; and (b) revoke or set aside any order, suspending any such sentence made either by him under clause (a) or by any other Martial Law Authority, including the Chief Martial Law Authority, before the commencement of this Ordinance, and may put into execution any sentence the suspension of which has been so revoked or set aside. (2) Any order made by the Commander‑in‑Chief of the Pakistan Army before the commencement of this Ordinance which would have been competent to him under subsection (1) shall be valid as if this Ordinance had been in force at the time when the order was made." In view of the importance of the questions of law which arose in the writ petition there was a reference of the case to a Full Bench. The Full Bench held that the order of the Commander‑in‑Chief stood validated by the Ordinance and dismissed the petition. It may be stated here before proceeding further that according to the allegations of the appellant the Ordinance had never been placed before the Assembly as required by Article 29(2) and it was on this basis that the High Court proceeded to determine its validity. Before us too this allegation was repeated, but it was withdrawn on information given by the Deputy Attorney‑General that as a matter of fact the Ordinance had been placed before the National Assembly, but no resolution was moved with respect to it so that it was not approved by the Assembly. Although during argument there was a reference to a number of Martial Law Regulations as well as to the Army Act it ultimately emerged that there were only two questions for decision or before us. The orders relating to the imposition, and com mutation, and suspension of sentence ware admitted to be valid by both parties. The questions to be decided were: (i) was the impugned Ordinance intra vires in so far as it gave retrospective effect to orders of the Commander‑in‑Chief? (ii) what was the effect of the Ordinance not being approved by the National Assembly? The argument that the Ordinance was ultra vires is based on Article 2 of the Constitution in accordance with which it is the inalienable right of every citizen and of "every other person for the time being within Pakistan", "to enjoy the protection of law and to be treated in accordance with law and only in accordance with law". The contention put forward is that the order of the Commander‑in‑Chief had not the support of any law on the date on which it was passed and therefore Sardar Muhammad Akbar Khan Bughti had not been treated in accordance with law when the order was passed and he was arrested in pursuance of it. To validate this action of the Commander‑in‑Chief, .it is urged, would be tantamount to up holding the treatment of a citizen otherwise than in accordance with law. As the contention put forward would appear to lead to the, conclusion that Article 2 was ‑ a bar to the grant of retrospective effect to any enactment learned counsel for the appellant was questioned as to whether according to him Legislatures in Pakistan were not empowered to legislate with retrospective effect at all. Learned counsel answered that he was not taking up that extreme position and that he was only objecting to the validation of an order of arrest already passed or the validation of a detention which was illegal. The form which learned counsel chose to put forward his contention was that retrospective effect could not be given to any enactment which effected rights or liabilities of citizens or other persons who are "for the time being within Pakistan". The distinction which learned counsel has drawn between retrospective legislation which affects rights or liabilities or persons and that which does not do so is without any foundation. All legislation affects rights or liabilities the words being used in A their widest sense. Legislature either creates a right or takes away a right or restricts or enlarges a right or similarly affects liabilities. It should be clear that if the contention of learned counsel is accepted there could be no retrospective legislation. Article 2 is intended to negative any claim by a Government that any category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. Claims have in the past been made by Governments that a particular act which was challenged was an act of State and was therefore not liable to be challenged. The view taken by the Courts has been that if an act was in fact an act of State it would not be subject to law, but that there could be no act of State with respect to citizens of a country and that in respect of citizens the Government has only such powers as are granted to it by the municipal law, that is, the law of the country. The acts of the Government, however, in relation to other Governments or some times in relation to nationals of other States or in relation td enemy aliens are not subject to law. So far as the effect of Article 2 on retrospective legislation is concerned the argument in the form in which it has been put on behalf of the appellant is not acceptable for as we have pointed out, all legislation deals with rights and liabilities. But there is another form in which the argument on behalf of the appellant can be put. It can be urged that if a person suffers some harm on account of the illegal act of a public servant, that is not a treatment of that person in accordance with law, and Article 2 does not permit the validation of that which was not treatment in accordance with law, because if this was allowed the protection of Article 2 will disappear. To apply the argument to the facts of the present case the detention of Sardar Muhammad Akbar Khan Bughti in pursuance of the order of the Commander‑in‑Chief being a treatment of Sardar Muhammad Akbar Khan not in accordance with law, no enactment could beg permitted to validate it. This contention if accepted would prevent a validation of illegal acts of the executive government) or public authorities. We do not find it necessary, to decide this question in the present case because even if the contention be accepted the treatment of Sardar Muhammad Akbar Khan Bughti after the coming into force of the Ordinance on the 22nd October 1962 is treatment in accordance with law. The best that learned counsel for the appellant can urge is that the appellant was not being treated in accordance with law from the time when he was arrested up to the 22nd October 1962 but it was obviously open to the Legislature to enact that his detention after the 22nd October 1962 till the expiry of his sentence of fourteen years would be legal. There is no bar to the Legislature enacting that a person in respect of whom an order had been passed by the Commander‑in‑Chief (which order was not justified in law when it was passed), shall be detained in accordance with that order. Henceforth the detention would be legal. The question before us is whether the present custody, of Sardar Muhammad Akbar Khan Bughti is legal or illegal and there is little doubt that it is legal As regards the second contention the case of the appellant is that the Ordinance not having been approved by the National Assembly lapsed and the effect of the lapse was that the Ordinance would be deemed never to have existed except for transactions past and closed. Before the Constitution of 1962 came into force the legal position was that an Ordinance which was not approved by the Assembly lapsed and the situation was the same as it would be on the lapse of a temporary statute. It has been held in a Full Bench case of Lahore High Court reported as Crown v. Haveli (1) P L D 1949 Lab. 550 that when a temporary statute expires it is deemed never to have existed except for transactions past and closed. This conclusion was stated to have been based on an English case which was assumed to have taken this view. It is not necessary, however, to consider the correctness of this conclusion because by the express words of Article 29 an Ordinance promulgated by the President does not lapse, but is deemed to have been repealed so that all the effects of a repeal follow. According to Article 29 if the Assembly disapproves of the Ordinance or does not approve of it the Ordinance is "deemed to have been repealed" on the expiry of forty‑two days from the commencement of the meeting of the National Assembly. Even if there was a lapse of the Ordinance there would still arise a question as to whether the validation of the order of the Commander‑in‑Chief by the Ordinance did not constitute a transaction past and closed so that the lapse would not affect the validity of the order. However, this is a case of a repeal and Article 250 of the Constitution which states the effect of repeal would prevent the order of the Commander‑in‑Chief becoming invalid by the repeal of the Ordinance. Learned counsel for the appellant has relied in this connection on clause (b) of Article 250 in accordance with which the repeal would not affect anything duly done or suffered under the law. Learned counsel argued that, it was only something which was duly done or suffered under the law that would be unaffected. Had Article 250 been confined to "anything duly done or suffered" under the law there may have been some force in the argument of learned counsel. However, Article 250 goes further and says that the repeal does not affect "the previous operation of the law" and it also does not affect any "penalty incurred" or any "right acquired" or "liability incurred". A liability for detention for a particular period was incurred by the detenue on account of the Ordinance and that liability continues in spite of the repeal of the Ordinance. Also the validity which the order of the Commander‑in Chief acquired by the Ordinance is a "previous operation of the law" and is not affected by the repeal of the Ordinance. This appeal is dismissed, but there is no order as to costs. K. B. A. Appeal dismissed.