P L D 1988 Lahore 49 (PLP)

MUHAMMAD AFZAL LONE, J:‑‑This judgment deals with Writ Petitions Nos. 3623, 4705, 659, 571, 599, 660 and 518, all of 1986, as common constitutional and legal issues have been raised therein. All the petitioners in these cases were tried by Special Military Courts, convicted and sentenced for different offences, except the petitioners in Writ Petition No.659 of 1986, who are Ex‑Army Officers and were arraigned before the special Court constituted under Presidential order 2 of 1982 C.M.L.A. Order I of 1982, A notice was issued to the respondent to despite some Law Officer to appear at the pre‑admission stage_ Accordingly, the learned Attorney General entered appearance, 2. 'the petitioners have inter alia assailed the validity of the actions taken against them by Martial Law Authorities, the constitution of the Courts which tried them, the authority of the Chief Martial Law Administrator/ President to amend the Constitution; the powers of the Parliament to incorporate Article 270‑A in the Constitution validating the legal measures issued and acts done by the Martial Law Regime; ouster of jurisdiction of the Superior Courts and the constitutionality of the assent given by the President to the Constitution (Eighth Amendment) Act, 1985. Quite lengthy and elaborate arguments have been advanced and very complicated constitutional and legal ,issues raised before us, which have a strong bearing on the political arena of the Country. Copious references were made by the parties to the case law which developed during the previous constitutional break‑down. It, therefore, appears appropriate to begin with brief survey of the unfortunate constitutional vicissitudes and the 'case law B connected therewith, which the Country had to face after its appearance on the map of the World.

3. Under the Independence Act, 1947, Pakistan was to be governed by the Government of India Act, 1935 as adapted by the Pakistan (Provisional Constitution) Order, 1947, until a Constitution was framed by the Constitution Assembly of Pakistan, which also performed tile functions of the Federal Legislature The Constituent Assembly, however, failed to frame the Constitution even after the lapse of 7 years and was accused of acting as if it was a permanent Legislature. On 24th October, 1954 Mr. Ghulam Muhammad, the then Governor‑General, dismissed the Constituent Assembly on the ground that it had become un‑representative. Maulvi Tameez‑ud‑Din Khan challenged the action of the Governor‑General under section 223‑A of the Government of India Act, 1935. before the Chief Court of Sind and prayed for issuance of writs of mandamus and quo‑warranto. The Federation of Pakistan raised the plea that section 223‑A under which the issuance of writ was prayed for, was not validly enacted for want of assent of 'the Governor‑General. The Chief Court, however, over‑ruled this objection . maintained that when the Assembly functioned as a Constituent Assembly and not as a Federal Legislature. such assent was not needed and issued writs applied for. The Federation of Pakistan and the re‑Constituted Council of Ministers, went in appeal. The Federal Court took the view that the Constituent Assembly while enacting section 223‑A exercised powers under section 8 (1) which within the meaning of (1) of the Indian Independence Act was legislature of the dominion and such legislation under subsection (3) of section 6 of the Act required assent of the Governor‑General which was lacking. Federation of Pakistan and others v. Maulvi Tameez‑ud‑Din PLD 1955 FC

240. The writs issued by the Chief Court were recalled.

4. The decision of the Federal Court had far reaching consequences, as a number of enactments promulgated by the Constituent Assembly since 1950 had not received the assent of the Governor‑General. For removal of the lacuna, to validate these enactments, the Governor‑General issued the Emergency Powers Ordinance, 1955 (Ordinance No.IX of 1955) and accorded assent thereto retrospectively. The validity of the Ordinance fell for consideration before the Federal Court in Yusuf Patel and others v. Crown PLD 1955 FC

38. The Court held that validation amounted to legislation, the Constituent Assembly alone was competent to legislate on constitutional matters and by its dissolution, the powers held by it were not transferred to the Governor‑General; and what was invalid could not be validated by him. It was also held that his powers to promulgate Ordinances under section 42 could not be enlarged by promulgation of Emergency under section 102 of the Government of India Act, 1935 and Ordinances issued in constitutional matters. He could only either accord or refuse his assent to the enactments passed by the Constituent Assembly. Ordinance No. IX of 1955 was, thus, found to be invalid, is so far as it conferred validity on the laws of constitutional character, rendered invalid on account of the lack of assent of the Governor‑General.

5. This decision had the effect of creating a serious constitutional vacuum in the country as there was no competent legislature to validate the laws in question. Whithin one month of this decision, the Governor‑General made a reference under section 213 of the Government of India Act, PLD 1955 FC 435, seeking Federal Court's opinion to overcome the crisis with which the country was faced. The questions referred to the Federal Court inter alia included, .... is there any provision in the Constitution or any rule of law applicable to the situation by which the Governor‑General can by order or otherwise declare that all orders made, decisions taken and other acts done under those laws shall be valid and enforceable and those laws which cannot without danger to the State be removed from the existing legal system shall be treated as part of the law of the land until the question of their validation is determined by the new Constituent Convention?"

6. In answering the Reference, Muhammad Munir, C.J. in his very learned and lucid opinion, elaborately discussed the maxim "id quod allas licitum nonesset necessitas faciat licitum salus populi suprema lex"; and "salus reipublicae est suprema lex"; and expressed the view: ... The powers and responsibilities of the Head of State in preserving the State and Society during an extraordinary emergency and preventing from disruption the Constitution and Government of the country are analogous to the powers which an Army Commander had during Martial Law, He also referred to the following opinion of Lord Mansfield in George Strattion and others (1979‑21 Howells State trial 1045), ..the only question for you to consider is this: Whether there was that necessity for the preservation of the Society and the inhabitants of the place as authorised private men . . . . to take possession of the Government; and to take possession of the Government to be sure it was necessary to do it immediately, x x x x x x x x ..to amount to a justification, there must appear imminent danger to the Government and individuals; the mischief must be extreme, and such as would not admit a possibility of waiting for a legal remedy. That the safety of the Government must well warrant the experiment The necessity will not justify going further than necessity obliges; for though compulsion takes away the criminality of the acts, which would otherwise be treason, yet it will not justify a man in acting farther than such necessity obliges him or continuing to act after the compulsion is removed. The Chief Justice then expressed his own opinion: ". . . . subject to the condition of absoluteness, extremeness ,and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity ...... (it) affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful that which otherwise is not lawful. Since the address (of Mansfield) expressly refers to the right of a private person to act in necessity, in the case of Head of the State justification to act must a fortiori be clearer and more imperative." The Chief Justice further observed:‑ The disaster that stared the Governor‑General in the face, consequent on the illegal manner in which the Constituent Assembly exercised its legislative authority, is apparent from the results described in the Reference as having followed from this Court's decision in Mr. Tameez ud Din Khan's case and the subsequent case of Yusuf Patel. The Governor‑General must, therefore, be held to have cited in order to avert an impending disaster. and to prevent the State and Society from dissolution. His Proclamation of 16th April, 1955, declaring that the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955 shall be retrospectively enforceable is accordingly valid during the interim period, i.e. until the validity of these laws is decided upon by the new Constituent Assembly. 11 In pursuance of the opinion of the Federal Court new Constituent Assembly was installed under the Constituent Assembly Order, 1955. It passed the validation of Laws Bill, which was duly assented by the Governor‑General.

7. Thereafter, the Constituent Assembly of Pakistan passed the Constitution Bill. The first Constitution of Pakistan was enforced on 23rd March, 1956 and Major Gen. Iskander Mirza, who had succeeded Mr. Ghulam Muhammad as Governor‑General, after his resignation with effect from 7th October, 1955, became the first President of Islamic Republic of Pakistan. On 7th October, 1958 he abrogated 1956 Constitution, dissolved the Legislative Assemblies, dismissed the Central and Provincial Governments, abolished the Political Parties, proclaimed Martial Law throughout the country and appointed General Muhammad Ayub Khan as Chief Martial Law Administrator. One of the reasons given out by him in the proclamation, for imposition of Martial Law was, . . . . The Constitution. is so full of dangerous compromises that Pakistan will disintegrate internally if the inherent malaise is not removed. To rectify this, the country must be firstly brought to sanity by a peaceful revolution. Then it is my intention. . . to devise a Constitution more suitable to the genius of the Muslim People. . . " On 27th October, 1958 the Supreme Court of Pakistan rendered decision in State v. Dosso and another, and 3 other criminal appeals, reported as (P L D 1958 S. C. 533). The issue before the Supreme Court was, as to whether or not the writ petitions filed by the appellants had abated under Article 1 (7) of the Laws (Continuance in force) Order, 1958 enforced by the President. The Court exhaustively examined the validity of the Martial Law Rule which had toppled down the existing legal Order through means not within the contemplation of the Constitution. Relying on Hans Kelsen's theory of legal Positivism. Muhammad Munir, C.J, referred to the victorious revolution as a source of new national Legal Order and observed:‑ For the purposes of the doctrine here a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. . . . if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law‑creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus, the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. . . . If what I have already stated is correct then the revolution having been successful it satisfies the test of efficacy and becomes a basic law‑creating fact. On that assumption the laws (Continuance in Force) Order, however, transitory or imperfect it may be, is a new legal order and it is in accordance with that order that the validity of the laws and the correctness of judicial decisions has to be determined. .' . . Under the new legal order any law may at any time be changed by the President . . 4 . there being no restriction on the President's law‑making power. . . Field Marshal Mohammad Ayub Khan, who replaced Maj. Gen. Iskandar Mfirza on the date of the announcement of the Supreme Court's judgment in Dosso's case, gave new Constitution to the Country on 8th June, 1962 which had been alluded to in the proclamation. He remained in power as President up to 25th March, 1969 when because of major crises, which need not be, referred to here, he tendered resignation, stepped aside and handed over the control of the country to Gen. Muhammad Yahya Khan. The latter proclaimed Martial Law, abrogated the Constitution, became Chief Martial Law Administrator; subsequently assumed the office of the President, and continued,to act as such, until 20th December, 1971 when Zulfiquar Ali Bhutto took over as President and Chief Martial Law Administrator.

9. The juristic principles laid down in State v. Dosso were re‑examined by the Supreme Court is Aasma Jillani v. Government of Punjab (P L D 1972 S.C. 139). Another question before the Court was, whether in view of bar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969, the High Court had jurisdiction under Article 98 of the 1962 Constitution; to inquire into the validity of detention under the Martial Law Regulation No.78 of 1971. The Court did not approve of the doctrine, that the efficacy of successful revolution was hall‑mark of validity of new national Legai Order, envisaged by Kelsen's, Theory of legal positivism and unequivocally maintained that the proclamation of Martial Law by Gen. Yahya Khan did not involve abrogation of Civil Law, functions of civil 'authorities and certainly did not vest the Commander of the Armed Forces with the Authority to abrogate the Constitution. The Supreme Court further found that . . . The assumption of power by Agha Muhammad Yahya Khan as Chief Martial Law Administrator and later as President of Pakistan was an act of usurpation, and was illegal and unconstitutional. All the legislative and administrative measures taken by this unauthorised and unconstitutional regime cannot be upheld on the basis of legitimacy, but such laws and measures which are protected by the doctrine of necessity, that is to say which were made for the welfare of the nation and for the ordinary orderly administration of the country, can be deemed to, be valid. . . . Martial Law Regulation No.78 of 1971 under which the two detenus were held is an illegal regulation which cannot enjoy the protection of the rule of necessity. After holding that Martial Law regime of Yahya Khan was utterly illegal, relying on the Attorney‑General of the Public v. Mustafa Ibrahim and others (1964 Cyprus Law Reports 195) and dissenting opinion of the Lord Pearce in Madzimbamuto v. Lardner‑Burke (1968) 3 A E R 561) Hamood‑ur‑Rehman, C.J. expressed the view that:‑ .I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that it is a doctrine for validating the illegal acts of usurpers . . . I would call this a principle of condonation and not legitimisation . . . I would condone all transactions which are past and closed for no useful purpose can be served by opening them, all acts and legislative matters which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order; all acts which tend to advance or promote the good of the people; and all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution.

10. This brings us to the recent Martial Law, validity of the orders passed and the actions taken, during the continuance whereof, is subject‑matter of these writ petitions. On the 5th of July, 1977 Gen. Muhammad Zia ul Haq, Chief of the Army Staff, issued a proclamation whereby the whole of Pakistan was brought under Martial Law, the Constitution held ‑in ‑abeyance, the Prime Minister's, all Central Ministers the Speaker, the Deputy Speaker of National Assembly, National Assembly, Provincial Assemblies, the Chairman and Deputy Chairman of the Senate, the Provincial Governors, the Provincial Chief Minister and Ministers, ceased to hold office. It was, however, proclaimed that the President of Pakistan would continue to remain in office. The proclamation was followed by issuance of the laws (Continuance in Force) Order, 1977 to give effect to the purposes thereof. The reasons which led to the imposition of the Martial Law, without going into the question of their correctness, were that the general election held on the 7th March, 1977 was characterised by massive rigging. The Pakistan National Alliance, therefore, denounced the election, protested and launched an agitation, in which private and public properties were extensively damaged and a number of lives lost. As the movement increased in magnitude, the civil Authorities failed to control the situation, the Army was, therefore, called in their aid, but even then the movement remained unabated with the result that the country was pushed to the brink of a civil war. In his address of 5th July, 1977, to the Nation, the Chief of the Army Staff, explained the reasons which compelled the Army to step in.‑‑ . . . . It must be quite clear to you now that when the Political leaders failed to steer the country out of a crises it is an inexecusable sin for the Armed Forces to sit as silent spectators. It is primarily for this reason that the Army perforce had to intervene to save the country . . . . . But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held‑in‑abeyance. Mr. Fazal Elahi Chaudhry, has very kindly consented to continue to discharge his duties as President of Pakistan . . . . I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator, Martial Law Orders and instructions, as and when required, will be issued under my orders . . . . . . . . I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering . . . My sole aim is to organise free and fair elections which would be held in October this year . . . . . I give a solmen assurance that I will not deviate from this Schedule . . . . . I would not like to dissipate my powers and energies as Chief Martial Law Administrator on anything else . . . . I hold the judiciary of the country in high esteem . . . However, . . . . if and when Martial Law Orders and Martial Law Regulations are issued, they would not be challenged in any Court of law . . . . .

11. This Martial Law came under challenge in Begum Nusrat Bhutto v. Chief of Army Staff P L D 1977 SC 657, in a petition under Article 184 (3) of 1973 Constitution, wherein the detention of the former Prime Minister and other leaders of Pakistan Peoples Party, under Martial Law Order No.12 was assailed, primarily on the rectitude of Supreme Court's dictum in Aasma Jillani's case. In defence Mr. A. K. Brohi who appeared, for the Chief of the Army Staff, described the imposition of Martial Law as an extra Constitutional change, which brought about a new Legal Order and argued that the validity of any action taken after 5th July, 1977, and the questions falling for adjudication before the Court, must be decided on the basis of that touch‑stone but the Supreme Court refused to accept that the effectiveness of regime provides its own legality and rather took the view that the efficacy of the Legal Order is only the condition of validity and not the validity itself.

12. Dilating upon the circumstances obtaining in the country which invited imposition of Martial Law, the Chief Justice maintained‑‑ . . . . . It was in these circumstances that the armed Forces of Pakistan . . . . . intervened to save the country from further chaos and bloodshed, to safeguard its integrity .and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster. It was undoubtedly an extra‑Constitutional step, but obviously dictated by the highest considerations of State necessity and welfare of the people . . . Treating the new regime as merely a temporary phase of constitutional deviation, at page 715 of the report, the Chief Justice summarised the legal position as under:‑ (i) That the 1973 Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held‑in‑abeyance on account of State necessity; (ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from, this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the proclamation of Martial Law; (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely: ‑ (a) All acts of legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely restoration of law and order, and normalcy in the country, the earliest possible holding of free and fair elections for the purpose of restorations of democratic institutions under the 1973 Constitution; iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require; and (v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order of Ordinance ..

13. On 24th March, 1981 the Chief Martial Law Administrator issued the Provisional Constitution Order. It was a self‑contained document and certain provisions of 1973 Constitution were made part thereof. It provided that notwithstanding any judgment of any Court, the proclamation, the President's Orders, the Orders and Regulations issued by the Chief Martial Law Administrator, including the Orders amending the Constitution. were validated and immune from attack before any Court. Likewise, protection was given to the orders made and proceedings taken under the legal measures aforesaid. The powers of the Supreme Court and the High Courts regarding judicial review, were curtailed. The Courts were prohibited from making any order relating to the validity or effect of any Order issued by the Martial Law Authorities and judgments or sentences passed by the ‑Military Courts. Any injunction or process issued or pending, before any Court, including the Supreme Court and the High Courts, were declared to have abated. The President and the Chief Martial Law Administrator, were vested with the power to amend the Constitution. The Judges of the superior Courts were required the make a fresh oath and those who were not given oath or did not take oath, ceased to hold office. Obviously, the Provisional Constitution Order, was. promulgated to nullify the effect of Begum Nusrat Bhutto's case. The country was governed in accordance with the provisions of this Order, until 30th December, 1985, when Martial Law was lifted.

14. The stage now arrives, to consider the arguments of the parties, directed against Article 270‑A. This Article was introduced in the Constitution, under the Revival of the Constitution of 1973 Order 1985 (P.O. 14 of 1985). It was first amended by the Constitution (Second Amendment) Order 1985 and then substituted by the Constitution (8th Amendment) Act. 1985. It came into force on 30th December, 1985, when proclamation of 5th July, 1977, was, revoked. The Article as existing now, is. reproduced below:‑ 270‑A. Affirmation of President's Orders etc. (1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, .Martial Law Regulations. Martial Law Orders, including the Referendum Order 1984 (P.O.11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Ziaul Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause, (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No.14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No.20 of 1985), the Constitution (Third Amendment) Order, 1985, (P.O. No.24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: Provided that a President's Order Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the proclamation of the fifth day of July, 1977. (2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or. any ground whatsoever. (3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, Orders or bye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amendment by competent authority. Explanation. In this clause, 'competent authority' means.‑‑ (a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and (b) in respect of notifications, rules, orders and bye‑laws, the authority in which the power to make, alter, repeal or amend the same vests under the law. (4) No suit, Prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purpose of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby. (6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in 'the manner provided for amendment of such laws. Explanation. In this Article 'President's Orders' includes 'President and Chief Martial Law Administrator's Orders' and Chief Martial Law Administrator's Orders." It will be seen that under sub‑Article (1), all legislative measures made between 5th of July, 1977, another day when this Article was enforced, notwithstanding any judgment of any Court, have been validated and further notwithstanding anything contained in the Constitution, cannot be challenged in any Court, on any ground whatsoever. Likewise, under sub‑Article (2), notwithstanding any judgment, protection is given to orders made and acts done or purported to have been made or done, in exercise of the powers derived from the legal measures aforesaid. Clause (5) additionally fortifies the validity of all the said legal instruments and the protection given to the actions taken thereunder, for the purposes of clauses (1), (2) and (4), and further provides that the orders made under such legal instruments and the acts done or purported to have been made or done, shall be deemed to have been made or done, in good faith and for the purposes intended to be served by the said clauses.

15. The ouster of jurisdiction of the Courts, under Article 270‑A, has been challenged by the learned counsel for all the parties and they heavily relied upon Begum Nusrat Bhutto's case to urge that the 1973 Constitution is the supreme law, the Chief Martial Law Administrator or for that matter the President was required to act in accordance therewith and that the superior Courts had the power of judicial review under Article 19S of the Constitution to full extent notwithstanding the Martial Law Regulations and Martial Law Orders. Mr. Aitzaz Ahsan, Advocate, endeavoured to analyse the nature and scope of Martial Law and distinguished the Martial Law imposed on the 5th July, 1977, from the one associated with Military Rule of a Commander over a conquered territory; as a machinery for, imposition of discipline in the Armed Forces under different Statutes and Preservation of law and order internally under the Authority of the Civil Government when it is rendered inadequate by public commotion or other such reasons. He drew our attention to various parts of the in Muhammad Umar Khan v. The Crown p L D 1953 Lah. 528, Miss Asma Jillani v. Government of Punjab P L D 1972 SC 139 and Begum Nusrat Bhutto's case, to point out that the latter type of Martial Law is legitimate per,. se. As regards the Martial Law of 5th July, 1977, it was argued that it is not valid per se but is legalised only by the circumstances and as long as those circumstances continue and the Military Commander keeps on applying his powers narrow, within the ambit of such circumstances, it remains legal. However, if the circumstances entailing the imposition of Martial Law and the necessity of exercising powers within that limited field, ceases to exist, the Martial Law becomes illegal and the Military Commander who over‑steps his jurisdiction, becomes usurper and his actions are rendered void ab initio retrospectively; that the Military regime took over on account of necessity which in terms of Begum Nusrat Bhutto's case for the application of this doctrine must satisfy that: ‑ (a) A n imperative and inevitable necessity or exceptional circumstances. (b) No other remedy to apply; (c) The measure taken must be proportionate to the necessity; and (d) It must be of a temporary character limited to the duration of the exceptional circumstances. It was argued that the Martial Law was validated on the doctrine of necessity and subject to the conditions that the 1973 Constitution had to remain the supreme law except that on account of State necessity certain parts thereof were held‑in ‑abeyance temporarily; the new regime did not introduce a new legal order but only a constitutional deviation which was merely a transitory phenomena; the President of Pakistan was to continue to act and discharge his duties under 1973 Constitution; Martial Law by itself did not oust the jurisdiction of the Courts; the judiciary never failed in the discharge of its constitutional and legal obligations and thus, the State necessity was limited only to the two organs of the State namely, the Legislature and Executive; the power to amend the Constitution was to be confined to these two fields only and the superior judiciary continued to retain its powers of judicial review; the Chief Martial Law Administrator had to remain in power for the limited purpose of arranging free and fair elections to restore democratic Institutions, in terms of 1973 Constitution within the shortest possible period. The necessity was qualified and justiciable; and the C.M.L.A. could not enlarge its s cop e. ,

16. Elaborating his arguments Mr. Aitzaz Ahsan further submitted that Begum Nusrat Bhutto's case, was toe foundation of the validity of Martial Law, but the conditions on which the legitimacy was conferred on Martial Law regime, were violated by the Chief Martial Law Administrator and he stepped into the fields which were never recognised by the Supreme Court; that in the first instance Article 212‑A was incorporated in the Constitution, to make provision for establishment of Military Courts and simultaneously oust the jurisdiction of all the Courts, including the High Court, from entertaining any proceedings of which the Military Court had taken cognizance or were transferred to it and all such matters pending before the superior Courts abated. Later on by means of Presidential Order No.1 of 1980 Article 199 of the Constitution was amended and the High Court denuded of its power to adjudicate upon the validity of Martial Law Regulations and Martial Law Orders, issued by the Martial Law Authorities and the orders made by the Military Courts, and even entertaining proceedings in respect thereof was prohibited, much less to issue any process. Continuing his submissions, the learned counsel added, that the Chief Martial Law Administrator never claimed that Martial Law was imposed by him to accord criminal justice to the citizens. Placing of curbs on the powers of the judiciary, was, not covered by State necessity and rather was negation of the foundation on which legitimacy was accorded by the Supreme Court to the Martial Law Regime.

17. Mr. Aitzaz Ahsan, went on to submit that power of the Chief Martial Law Administrator to amend the Constitution as per Begum Nusrat Bhutto's case was quite limited one, but drastic changes were made in the Constitution. By promulgating Provisional Constitution Order, 1981, he not only enforced a new legal order but annulled the effect of Begum Nusrat Bhutto's case which was the source of validity of Martial Law Regime. It was submitted that when the privilege, licence or legitimacy is granted on certain conditions, then on violation of the conditions, such privilege, licence and legitimacy is terminated and the actions in breach thereof become illegal and void retrospectively w.e.f. the date the person concerned entered upon the privilege, licence or legitimacy. According to the learned counsel, the Chief Martial Law Administrator, overstepped the authorised field, by attempting to restrict the jurisdiction of the superior Courts and by promulgating laws not sanctioned by the State necessity. In support of these submissions, the learned counsel heavily relied on the case of Six Carpenters CIrks v. Somersetshire Drainage Commissioners (1888) 4 T.L.R. 539, Great Western Railway Co. v. Talbot (1902) 71 L.J. (Ch) 835, Milner's Safe Co. Ltd. v. Gt. Northern City Rly (1907) 75 L.J. Chancery 807, Taff Vale Railway Co. v. Gordon Caming (1909), 78 L.J. Chancery 57, Williams v. Scott (1900) A.C. 499, and London Borough of Southwark v. Williams and another (1971 (2) A.E.R. 175). These cases do support the proposition that when authority or licence is, by law, given to any one and he abuses it, he shall be a trespasser ab anitio.

18. After expounding the proposition that on account of violation of the conditions of the validity laid down in Begum Nusrat Bhutto's case the Martial Law rule ceased to be legitimate from its inception; its each action can be tested on the touch‑stone of State necessity and subjected to judicial review, the learned counsel submitted that only such acts which conform to the requirements of necessity can be condoned and not validated. It is to be noticed that the learned counsel did not canvass that every thing done during Martial Law Regime be declared invalid but submitted that those acts which are in the public interest and satisfy requirement of State necessity qualify for condonation but there is no question of their validation. In this behalf he drew our attention to the following observations appearing in Aasma Jillani's case:‑ "I too am of the opinion that the recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization."

19. The arguments that the Martial Law Regime having exceeded the limits of the State necessity, lost its validity, was strongly controverted by the learned Attorney‑ General. He argued that the circumstances of extreme necessity prevailing in the country when Martial Law was enforced, fully justified its imposition and the Supreme Court in Begum Nusrat Bhutto's case clearly held that the Chief of the Army Staff, was, actuated by high considerations of State necessity and welfare of the people to step in and enforce Martial Law. According to the learned Attorney ‑General, in this view of the matter, any challenge to the validity of the Martial Law was out of question. He submitted that the purport of and welfare of the people to step in and enforce Martial Law. According to the learned Attorney ‑General, in this view of the matter, any challenge to the validity of the Martial Law was out of question. He submitted that the purport of Begum Nusrat Bhutto's case is not conferment of power to act but a mere recognition of power inherent in the situation which attracted the imposition of Martial Law and cast a responsibility on the Chief Martial Law Administrator to adopt necessary measures to run the State.

20. The learned Attorney‑ General further submitted that the Chief Martial Law Administrator had to take multifarious actions and adopt means and discharge functions for managing the day‑to‑day affairs of the country. He was the best Judge as to what steps could be taken by him to discharge his responsibilities towards the State. Even under the doctrine of necessity the law giver had to decide whether the necessity existed and the Court cannot substitute its discretion for that of the law giver. He referred to Zulflqar Ali Bhutto v. The ‑State P L D 1978 SC 40, Haji Abdullah v. Presiding Officer, Summary Military Court No.9 Karachi P L D 1980 Kar. 498 and Fauji Foundation and another v. Shamimur Rehman P L D 1983 SC 457.

21. In ZuIfiqar Ali Bhutto's case a challenge was thrown to the issuance of various Post Proclamation Orders relating to holding of elections and appointment of Chief Election Commissioner that this amounted to departure from Constitutional provisions and also did not fall within the permissible actions, stated in Begum Nusrat Bhutto's case under which intervention of the Chief of the Army Staff had earned validity. Anwar ul Haq, C.J. after discussing the powers of the Chief Martial Law Administrator under the doctrine of necessity observed:‑ "It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation governing the exercise of .o the other accepted principles powers conferred by Article 199 of the Constitution.." In Haji Abdullah v. Presiding Officer, Summary Military Court No.9, Karachi P L D 1980 Kar. 498 a Full Bench of the Karachi High Court considered the validity of the insertion of Article 212‑A and amendment made in Article 199 of the Constitution under Presidential Order No.1 of 1980 to oust the jurisdiction of the High Court, in respect of cases tried by the Military Courts. It was pressed before the Court that the Chief Martial Law Administrator's power to amend the Constitution and make other legislative instruments was circumscribed by the limits of State necessity as envisaged by Begum Nusrat Bhutto's case. Largely influenced by the decision in ZuIfiqar Ali Bhutto's case, Abdul Hayee Kureshi C.J. was of the opinion:‑ . . . . We would, however, observe that if a power to amend the Constitution was recognised by the Supreme Court this Court cannot sit as an Appellant Tribunal to find out if the test of necessity or public good or achievement of the objects of Martial Law was fulfilled in accordance with the Supreme Court judgment the President/Chief Martial Law Administrator has the power to amend the Constitution. How, and in what circumstances he would utilise that power has to be judged by him and we would reiterate what was stated in the case of Khudaidad v. The Martial Law Administrator PLD 1978 Quetta 177 that embarking upon such an enquiry was indeed a perilous path to tread. To say the least what may be reasonable in the view of one person may not be reasonable in the view of another." As regards Fauji Foundation case, by virtue of promulgation of M.L.O. 103 (of 1969 Martial Law) Rehmania Fauji Sugar Mill was dissolved and its assets and liabilities transferred to Fauji Foundation. Under P.0 No.221 of 1972 issued subsequently, a provision was made for payment of compensation to the respondent and his family members. In challenging this instrument, mala fide was attributed to the Chief Martial Law Administrator/ President. Muhammad Haleem, Actg. C.J. (as he then was), after exhaustive survey of the case‑law laid down that the Court cannot investigate into the affairs of legislature or go into the question of motive, influencing the legislature to, pass a particular enactment, and in para 89 of the report, summed up the position as under: . . . . The legal justification for issuing a legislative instrument is a matter solely within the competence of tilt! Legislature or the law‑giver. It is not one which can be judicially reviewed as will appear from the discussion which follows elsewhere in the judgment .. ."

22. The way in which the learned attorney‑ General seeks an all pervading immunity, for all actions of Chief Martial Law Administrator leaves too much un‑explained. In Begum Nusrat Bhutto's case, it is clearly laid down that emergence of necessity which enjoined imposition of Martial Law, was, not out of failure of the Courts to discharge their functions in accordance with law and Constitution but for the reason that the other two Organs of the State i.e. Legislature and Executive had lost their efficacy. The Court maintained that the superior Courts continued to have the power to adjudicate upon the validity of the acts and actions of the Martial Law Authorities through judicial review and remove the same if such acts and actions amounted to encroachment on the rights of the citizens. Even the Laws (Continuance in Force) Order, 1977 was held amenable to such jurisdiction. In our opinion, the principle that the legitimacy of the acts and actions of the Martial Law Regime, could be tested on the touchstone of State necessity, was ' not departed from in Zulfiqar Ali Bhutto's case. What the Court observed therein, was, that in exercise of power of judicial review, that Court cannot substitute its own decision for that of the Martial Law Authorities and this observation is characterized by adherence to the basic principle governing the judicial review of the acts of the executive authorities, rather than to make a drift from the rule firmly embeded in that decision namely the actions of the Martial Law Regime are subject to the supervisory jurisdiction of the Court and it is for the Courts to determine whether a State necessity existed and whether the measures taken by the Martial Law Authorities were absolutely necessary. However, in doing so, the fact that the Authority concerned is still in power, is to be kept in view, for, in the first instance such Authority itself fixes the limits of its authority. This is quite conspicuous from Begum Nusrat Bhutto's case when the Chief Justice in drawing distinction between the action of Gen. Yahya Khan's regime and the Martial Law imposed by Gen. Muhammad Zia ul Haq expressed the view; "It is clear, therefore, threat the conclusion that the act of Gen. Muhammad Yahya Khan amounted to a usurpation of power flows directly from the circumstances obtaining in that case, and is not to be regarded as a general proposition of law to the effect that whenever power is assumed in an extra Constitution manner by an authority got mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not . It has also to be noticed that the concept of condonation, as expostulated in Aasma Jillani's case, has relevance not only to the acts of a usurper, but also to a situation which arises when power has fallen from the hands of the usurper, and the Court is confronted with protecting the rights and obligations which may have accused under the acts of the usurper, during the time he was in power. However, in the case of an authority, whose extra‑ Constitutional assumption of power is held valid by the Court on the doctrine of necessity particularly when the authority concerned is still wielding State power, the concept of condonation will only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of State necessity and welfare of the people. It follows, therefore, that once the assumption of power is held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity.. "

23. Even as a general rule when Martial Law is in force in a territory, the Army Commander is the supreme authority and legislative, judicial and executive powers of the State vest in him. All other powers wielding Authorities of the State are eclipsed and become subordinate to him or their jurisdiction is ousted. In this behalf reference may be made to the observations of Muhammad Munir. C.J. in Muhammad Umar Khan v. The Crown P L D 1953 Lah. 528. ..Most constitutional writers affirm. that where civil power is deposed, suspended or paralysed by domestic disturbances the military are entitled to step into fill up the void but these writers are equally clear in their opinion that while so acting the legality or excusability of any action taken by the military will be judged by 'necessity' and that such judgment will be with the civil Courts ex‑post facto. . . . Analysing the nature of the orders of the Martial Law Authorities, the Chief Justice held:‑ . . . . They are essentially in the nature of executive action taken with the object of preventing mischief and disorder during the Martial Law period. Such orders, therefore, empire ipso facto on the expiry of such period, because the occasion which necessitated them ceases to exist. But so long as Martial Law lasts such orders cannot form justiciable issues before the Civil Courts, not because the Civil Courts have no jurisdiction but because their jurisdiction can at any time be ended by show or use of force by the military. Once, however, Martial Law is lifted, the threat to the existence of the Civil Courts disappears and they can then not only function in a normal way but also call in question the acts of the military, whose only defence then can either be the right of private defence or the right to disperse unlawful assemblies or some indemnity legislation . . . .

24. The amenability of the actions of the Martial Law Regime, before Civil Courts, after the lifting of the Martial Law, has also been recognised in Aasma Jillani's case in the following words of Yaqub Ali, J. . My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law‑making. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognise its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. . . Reference in this respect may also be made to Salmonds jurisprudence 11th Edition, page 25. "The formal establishment of such a system of military Government and justice in time of internal war or rebellion is commonly known as the proclamation of Martial Law. Which the acts of the military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war ..

25. The reason that the power of judicial review is not available for questioning the wisdom of law‑giver and the propriety of the law made by him, is that under the structural features of the constitution, prescribing trichotomy of powers, one organ of the State does not usurp the powers of the other. The limits of the spheres of the made by him, is that under the structural features of the constitution prescribing trichotomy of powers, one organ of the State does no usurp the powers of the other. The limits of the spheres of the Legislature, Executive and Judiciary are enumerated in the constitution. This separation of power, is, the pivotal feature of the federalism and ensures rule of law in a Constitutional Government. Motivated by the mutual respect for other organs, coupled with the limits imposed under the Constitution, one limb of the State does not transgress the field allocated to it under the constitution. Within the scheme of the Constitution, each political institution of the State, gives weight to the limits imposed on its powers. Thus, as long as the law is competently made, the Courts which are the creation. Constitution, do not interfere with, the discretion exercised by the Legislature in enacting a particular law. This principle, however, cannot be extended to the Chief Martial Law Administrator, who during Martial Law, wielded all powers of State authority, and exercised the legislative and executive powers untrammelled by any Limitation. As regards the judiciary no doubt, the ordinary Courts were not closed but they exercised their functions within the field un‑occupied by the Military Courts and the Martial Law Authorities. To that extent even with regard to judiciary, the paramount power vested in the Chief Martial Law Administrator. In these circumstances, it is not possible to equate the Chief Martial Law Administrator with a representative legislature, and the immunity available to such a Legislature, conferred on him.

26. During the Martial Law Regime, the Chief Martial Law 'Administrator issued a large number of legislative measures and acting as President made various amendments in the Constitution. In the course of the arguments the Presidents Power to amend the 6 U Constitution was also brought under challenge by the learned Counsel for the petitioners. A searching question needs to be asked that what was the source of the authority for effecting these amendments? According to the learned Attorney General, the power to amend the Constitution was available to the President by virtue of the mandate given by the Supreme Court in Begum Nusrat Bhutto's case and there was no embargo on the exercise of this power. But it is to be seen that the effect of Supreme Court's judgment in Begum Nusrat Bhutto's case was nullified by the Provisional Constitution Order. In this respect, the attention of the learned Attorney‑General was drawn to para 15 of the Provisional Constitution Order, under which "notwithstanding any judgment of any Court" the laws made by the C.M.L.A., the Presidential orders issued and the actions taken thereunder, were validated; and saved from attack before any Court, establishment of Military Courts protected and the superior Court's power regarding judicial review curtail. The learned Attorney General rightly conceded that the expression "notwithstanding judgment of any Court" pertains to the judgment in Begum Nusrat Bhutto's case and it stood annulled on account of the Provisional Constitution Order. He, however, added that after the removal of that judgment, the Provisional Constitution Order itself became the source of power to amend the constitution and laid hand on Article 16 which runs as under: ‑ "The President as well as the Chief Martial Law Administrator shall have, and shall be deemed always to have had, the power to amend the Constitution."

27. Developing his contentions the learned Attorney General further emphasised that the Provisional Constitution Order was issued by the C.M.L.A. in exercise of the powers vesting in him under the Laws (Continuance in Force) Order, 1977 and the Provisional Constitution order, created a new legal order which was accepted even by the Courts and Judges of the Superior Courts made oath of office thereunder. It was contented that this defect validity of the new Legal Order also received a de-jure recognition as all the legal instruments issued, and the acts done by the Martial Law Regime have been validated under the Constitution.

28. It has already been noticed that in Begum Nusrat Bhutto's case, the Supreme Court accepted the justification for imposition of Martial Law on account of extreme political emergency then facing the country and to enable the Chief Martial Law Administrator to create conditions for holding early election and to establish democratic conditions in the country. The Supreme Court also examined the scope and extent of the powers of the C.M.L.A during the "temporary period" of administration of the country by him. This is evident from page 712 of the Report. It shall be seen that the then learned Attorney General had canvassed an unlimited power for the C.M.L.A. and advocated that: . . . once the taken over is validated on the principle of necessity, then the Chief Martial Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra‑Constitutional instrument, binding all authorities in Pakistan. . . But, the Chief Justice on looking into the circumstances which necessitated the seizer of powers by the Chief Martial Law Administrator, found that the violent disturbances wrought in the Country, were not the cause but the result of errosion of the constitutional machinery. Examining the character of the Martial Law Regime, in the light of its declared objectives and after discussing the same in the spectrum of notable constitutional works the Chief Justice did not accept the Attorney‑ General's spacious argument canvassing unlimited exercise of powers by the Chief Martial Law Administrator and maintained‑.‑ "it will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated and only certain parts of which were held‑in‑abeyance, namely, the parts dealing with the Federal and the Provincial executives and Legislatures. The President of Pakistan was to continue to discharge his duties as here before under the same Constitution, Soon after the polls the power is to be transferred to the ejected represen tatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same, namely, that he had stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life." If the Political change in the country was taken by the Supreme Court to have been brought about for a limited purpose, it is difficult to accept that Begum Nusrat Bhutto's case intended to confer unlimited powers on the C.M.L.A. to amend the Constitution. Such powers had to be exercised in consonance with the dictates for necessity.

29. The learned Attorney‑General's argument that after annulment of judgment in Begum Nusrat Bhutto's case a new legal order ushered in, cannot be readily accepted. It is manifest from the judgment that before Supreme Court, Mr. A.K. Brohi,vehme.ntly,‑‑ contended that the proclamation of the Laws (Continuance in Force) Order, 1977 constituted an extra‑ Constitutional fact, which attracted the doctrine of "Revolutionary Legality" and provided a new grundnorm. That the old Legal Order, contemplated by 1973 Constitution, was displaced by the new grundnorm and that to that extent the jurisdiction of the Superior Courts was altered. There was thus, an effort for resurrection of the rule laid down in Dossols case. But Anwar ul Haq, C.J, with whom the majority concurred, after pointing out the fallacy inherent in the Kelsen's theory of effectivness of political change,. as a sole criterion of legality, particularly, when it is put to normative use to furnish legal norms for guidance of judicial decision, observed:‑ . . . It excludes from consideration sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new‑Legal Order. It must not be forgotten that the continued validity of the grundnorm has an ethical background, in so far as an element of morality is built in it as part of the criterion of its validity. These considerations assume special importance in an ideological State ‑like Pakistan, which was brought into being as a result of the demand of the Muslims of the Indo‑Pakistan sub‑continent for the establishment of a homeland in which they could order their lives in accordance with the teachings of the Holy Qur an and Sunnah. . . "

30. The question is, could the Chief Martial Law Administrator legally create a new legal order and over‑ride the judgment rendered by a Court ‑ sitting at the apex of the law applying organs of the State, as an essential Constituent of the old Legal Order. According to the rule laid down in Aasma Jillani's case he could not, and the replacement of the national legal order by unconstitutional means cannot furnish a valid source for creation of legal measures. Even in Begum Nusrat Bhutto's case the Chief Justice held that‑‑ the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely hold certain parts thereof in‑abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus populi suprema lex, the Superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity."

31. We may observe that the necessity can confer on a de‑facto ruler at the most the same power as exercised by a de‑jure functionary, but not beyond that. The proposition that the effectiveness of a D regime, provides its own legality, it is clear to us, did not prevail with the Supreme Court. We are, constitutionally bound by law laid down by the Supreme Court and feel no inhibition, in holding that the Martial Law Regime was not vested with the powers to amend the, Constitution freely. It had to act within the bounds of Necessity.

32. As regards the oath, in Begum Nusrat Bhutto's case, it is clearly stated that new oath of office administered to the Judges did not preclude them from examining the validity of the new Legal order The oath made by the Judges had the effect of saving the country from chaos, assured a measure of legal cohesion, and helped in the preservation of those institutional values which otherwise would have been totally destroyed, during Martial law. Even if the oath is associated with a political realism, there should be no doubt that when an authority in the nature of legislative competence is imminently lacking, the omission cannot be supplied by the judiciary.

33. It is well settled that a defect in the nature of legislative competence can only be cured through a constitutional measure. The body competent to make laws, can well‑validate them and further protect the actions taken and acts done in pursuance of the legal instrument requiring validation. Such a constitutional measure is to be found in Article 270‑A. But before examining the scope of this Article, we may deal with an objection raised by Mr. S.M. Zafar, Advocate, to the vires of the incorporation of this Article, in the Constitution. As already stated, it was added to the Constitution by virtue of, the Constitution (Eighth Amendment) Act, 1985. It received the assent of the President on 9‑11‑1985. The proclamation of 5th July, 1977, was, withdrawn, and Martial Law lifted on 30th December, 1985. It is argued that this Article became law on account of the assent given by the President and as such assent was accorded when Martial Law., was still in force. The submission is that the act of the assent will be covered by the principles and limitations laid down in the judgment of Begum Nusrat Bhutto's case and can be subjected to scrutiny by the superior Courts, to see whether the validation granted under Article 270‑A, was really required, in terms of' the judgment aforesaid, for any legal necessity. According to Mr. ‑S.M. Zafar, since it does not answer the dictates of the necessity, it is liable to be struck down.

34. Under Article 75 of the Constitution as amended, when a Bill is presented to the President for assent, he has to accord his assent within 30 days, unless he chooses to return it to the Majlis‑e‑Shoora for reconsideration. Sub‑Article (7) of Article 41, provides that Gen. Muhammad Zia ul Haq became President of Pakistan, as a result of Referendum held on 19th December, 1984, in pursuance of Referendum Order, 1984, and shall hold office for a period of 5 years, with effect from the date of the first meeting of the Majlis‑e-Shoora, in the joint sitting, after the election to the Houses of Parliament. The joint session was held and the President made an oath of office on 23rd March, 1985. With this background, the learned Attorney Genera circumscribed the wide reach of the petitioner's argument by contending that General Muhammad Zia‑ul‑Haq had already become the President when he gave assent to the Bill, in contemplation of Article

75. Such an act of assent, which is in conformity with the Constitution cannot be challenged. He further submitted that under Begum Nusrat Bhutto's case, the power of judicial review was made available only against the acts and actions of the Martial Law Authorities, but here the assent was given by the President. Thus, according to the learned Attorney General even on the rectitude of Begum Nusrat Bhutto's case, the assent was not open to any exception. 34‑A. A corollary of these arguments, is another submission made by Mr. Raza Kazim, that when the Parliament enacted Article 270‑A, it was not a sovereign body as the Martial Law was in force then; Article 270‑A was subject to will of the Chief Martial Law Administrator who qua the Constitution and the National Assembly was not under any compulsion to issue or not to issue the proclamation of withdrawal of Martial Law. In these circumstances according to the learned counsel, Parliament lacked competence to amend the Constitution. 34‑B. The objection has political assumption rather than a legal significance. However, examining it from a purely legal point of view, it is noteworthy that Revival of Constitution Order, 1985, was enforced with effect from 20th March, 1985. Under Article 3 of the R.C.0, the first joint meeting of the National Assembly and the Senate, was held, as stated in the preceding paragraph on 23‑3‑1985 and the Parliament stood installed. Powers having been once granted to the Parliament could not be taken away unless the RCO was annulled or the Parliament dissolved by the President under Article 91 of the Constitution. Further under our Constitution, sovereignty belongs to God Almighty, which he has delegated to the State of Pakistan through its people. The Parliament is the representative of the people. Within the frame work of the concept that legal sovereignty rests in God Almighty, enshrined in our Constitution, it is only a limited authority which is exercised by the Parliament. In this sense there is no room for attributing the western concept of sovereignty to the Parliament. We may also quote here, the instance of enacting of the Interim Constitution during Martial Law. What transpired between the Parliament acting through the Prime Minister and the Chief Martial Law Administrator, is a political question, ‑not subject to judicial scrutiny. Article 270‑A, therefore, cannot be struck down on the assumption that the Parliament was not sovereign.

35. The evaluation of the arguments of both the sides largerly depends upon the construction of Article 270‑A, as under this provision, all legal measures issued and laws promulgated during the period from 5th July, 1977, to 30th December, 1985, have been validated and the acts done and actions taken in pursuance of such laws protected, from attack through judicial review, rather the powers of the superior Courts to scrutinise such laws and that actions, have been ousted. If the Constitution (Eighth Amendment) Act, 1985, is found to have been validly enacted its scrutiny on the touch‑stone of Begum Nusrat Bhutto's case, shall be out of question. This issue is dealt with in the succeeding paragraphs of this judgment. One thing may, however, be added, that the according of assent, to the constitutional document by the President, during the continuation of the Martial Law, is not unknown to the constitutional history of this country. We have already given example of the Interim Constitution of 1972. The Bill having been passed by the National Assembly received the assent of the President during continuation of Martial Law but was enforced w.e.f. 21st April, 1972, when Martial Law was lifted. Needless to state, that in Zia ur Rehman's case the Supreme Court has un‑equivocally held that the Interim Constitution, is, a valid document enacted by a competent Body.

36. In order to demonstrate that despite the ostensible ouster of jurisdiction, the Court is possessed of powers of judicial review, Mr. S.M. Zafar, drew a comparison between sub‑Article (1) of Article 270‑A and sub‑Article (5) of Article 15 of the Provisional Constitution Order. It is to be noticed that the latter provision which ousts the jurisdiction of the Court, lays down that the Supreme Court and the High Court shall not:‑ "make an order relating to the validity of effect of any Order or Martial Law Regulation." This expression, is, however, missing from sub‑Article (1) to Article 270‑A. Founded on this omission, Mr. S.M. Zafar, endeavoured to build a fairly spacious argument that in the absence of such a curb on the power of judicial review, the Court could freely exercise jurisdiction under Article 199, un‑hampered by any restriction which bedevilled sub‑Article (5) of Article 15 ibid.

37. The main task before us, is, to correctly interpret Article 270‑A and to discover legislative intent which is the main object of interpretation. Of course such intent is not to be ascertained from extrinsic factors, but from the words of the Article, as it stands I now. It is true, that when a Statute is passed to repeat and party re‑enact a former Statute, an alteration in language, particularly, an omission from the Statute re‑enacted, of the words used in the former Statute, can generally throw light of, the intention of the Legislature. But Article 270‑A, can by no means be described as an evolutionary heritage of the Provisional Constitution Order. Its object is to validate laws and actions of the Martial Law Regime and to indemnify persons who acted in pursuance of such laws. As stated earlier, its scope is to be discovered from its language, which too embodies a non‑obstante clause. The fact that the ouster clause figuring in Article 15 (5) has not been repeated in Article 270‑A, in the same words, by itself cannot be taken as an indication of enlargement of powers of judicial review.

37. Article 199 of the Constitution casts an obligation on the High Court to act in aid of law, Protecting the rights of the citizens within the frame work of the Constitution against the infringement of law and Constitution by the executive Authorities, strike a rational compromise and a fair balance between the rights of the citizens and the action of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to constitutional limitations. The interpretation of the Constitution thus, belongs to the superior Courts and it is for them to determine the true meaning and the scope of the constitutional provisions. It would, however be advantageous to refer here to some of the basic principles of the Constitutional interpretation, enumerated at page 165 of the report in Federation of Pakistan v Saeed Ahmad Khan and others (PLD 1974 S C. 151). (i) . (ii) .. (iii) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the constitution and must confine themselves within the limits set by the Constitution. (iv) Under a Constitution prescribing a system where there is trichotomy of sovereign powers 'the judicial power must from the very nature of things be vested in the judiciary. (v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction, (vi) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, ‑even by constitutional provision, are to be construed strictly with pronounced learning against ouster. (vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law‑giver if the jaw ha been competently made without transgressing the limitations o the Constitution. If a law has been competently made the judiciary cannot refuse to enforce it even if the result be t nullify its own decisions."

38. The learned Attorney‑General has drawn our attention to three decisions, to be kept in mind while construing Article 270‑A. These are, Kotumal K. Rupani and another v. The State (P L D 1960 Karachi 15), The State v. Zia ur Rehman and others (P L D 1973, SC 49 at page 80) and Inayat Ullah v. Mian Ghulam Ahmad and others (P L D 1984 SC 369). These precedents reiterate some of the fundamental principles, governing the interpretation of the Statutes that a Statute must be interpreted according to the intention of the legislature and if the words adopted therein, are, clear and un‑ambiguous these should be expounded in their natural and ordinary sense. If the language used vividly demonstrates ouster of jurisdiction. then‑ the ouster must be absolute and even the acts performed without jurisdiction or mala fide, will not be open. to judicial scrutiny. These precedents further show that the Courts having the right to interpret law, have to determine the nature and limitations of the ouster clause, 1 in each case.

39. It has been impressed, upon us that the purpose of insertion of Article 270‑A, in the Constitution, was, three‑fold: (i) To close the chapter of Martial Law legislation, (ii) To accord saving and validation to the laws made and actions taken during Martial Law, (iii) To give legislative verdict on the laws made and actions taken during the specified period but reserving to the appropriate legislature, the right to repeal, alter or amend laws, within the ambit of sub‑clause (3) of Article 270‑A. It has been further argued that this Article gives blanket coverage to the laws made actions taken in pursuance thereof and the persons who took such actions during Martial Law. The learned Attorney General went on to submit that sub‑Article (1) gives an all embracing validation to all legislative measures, enacted during Martial Law; the jurisdiction of the Courts having been completely barred, these cannot be challenged on any ground whatsoever. He specifically referred to the following observations of Hamoodur Rahman, C.J. in Zia ur Rehman's case at page 80 of the report: Where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its' jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. . .

40. In order to make use of the case law rendered in relation to the provisions of the Provisional Constitution Order, regarding ouster of jurisdiction, the learned Attorney‑General made a comparison of Article 15 (1) of the Provisional Constitution Order with Article 270‑A (1) to contend that the import of these two provisions is the same. Likewise, he pointed out that Article 15 (2) of 'the Provisional Constitution Order is similar to sub‑clause (2) of Article 270‑A. He then referred to Dr. Muhammad Elias Dubash v. Punjab Service Tribunal (1982 SCMR 562), Shabbir Ahmad v. WAPDA (1982 SCMR 375), The Province of the Punjab v.. Syed Muhammad Akram Shah (PLD 1984 SC 409), Govt. of Punjab v., Saleem Hussain Gardezi (1985 SCMR 443). Nazir Mohammad Khan v. Pakistan (PLD 1986 Kar. 516) Abdul Ghaffar Lakhani v. Federal Govt. (PLD 1986 Kar. 525). We have examined these authorities. In Muhammad Elias Dubash's case, the validity of compulsory retirement made in contemplation of Martial Law Order No.23, in view of Article 15 (2) of the Provisional Constitution Order, was, held unquestionable. In the judgment in Shabbir Ahmad's case, on the basis of Article 15 (1), the vires of Ordinance No. LXXII, of 1979, was, not permitted to be challenged. The appellant before the Supreme Court in, Province of Punjab v. Syed Muhammad Akram Shah, was promoted as Tehsildar but under Martial Law Instruction No.21, issued by the Martial Law Administrator Zone 'A', his appointment was treated as on ad hoc basis and he was reverted to his original post. He assailed this reversion but the impugned order having been made on the recommendation of the Review Board, constituted under Martial Law Instruction No.21, was declared immune from being questioned on account of Art. 15 (2) filed. In Saleem Hussain Gardezils case an appeal u/s 4 (f) of the Service Tribunal Act against the order of termination of service, passed by the Review Board, was held barred under Article 15 (2). In the judgment in Nazir Muhammad Khan's case, Regulation No.52 was held not amenable to challenge because of Article 15 of the P.C.O. In the last precedent issuance of writ in respect of Chief of Army Staff, was refused on the basis of Article 199 (5). It is to be remembered that the Provisional Constitution Order is the creation of an individual i.e. the Chief Martial Law Administrator. This piece of legislation, was brought on the Statute Book with the sole object of strengthening the hold of Martial Law. But on the other hand, Article 270‑A is characterised by transfer of power by Martial Law Authorities, to a representative Government. It was enacted by chosen representatives of the people and the military rule replaced by democracy. As observed by Turner L.J. in Hawkins v. Gathereole (24 L.J. Ch. 332) for expounding an Act not only its words are to be considered but the intent of the legislature may also be gathered from the cause and necessity of making the Act and sometimes from extraneous N circumstances so far as they can properly and light on the subject, Keeping in view the divergent background of the two provisions of law, the distinct sources from which they emanated and the circumstances under which they were enacted, we are dissuaded to place an abounding reliance on these precedents for construing Article 270‑A.

41. We now proceed to examine Article 270‑A. It is to be see.. that sub‑Article (1) has two portions. Under the first portion, validity is conferred on all legal instruments mentioned therein qua competence; of the law maker, notwithstanding anything to the contrary in any judgment of any Court. The expression "validly made by competent authority" does not leave us in any manner of doubt that the validity is given regarding legislative competence. Even the learned Attorney‑General, does not dispute it. However, the second part of this sub‑clause "notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever", is visited by a degree of imprecision and can bear more than one meanings. One way of looking at it, is to treat the word "and" as disjunctive, with the result that We ouster of jurisdiction will relate only to those instruments which received validity, in respect of legislative competence, under the preceding part of this clause i.e. qua "the judgment of any Court". In other words, the legislative competence cannot be challenged on any ground whatsoever, irrespective of the provisions of the Constitution. This interpretation can lead to an inference that though the law may have been made by competent Authority, yet if found in conflict with Fundamental Rights or Article 2‑A of the Constitution, would be liable to be struck down. But according to the learned Attorney General the purpose for which sub‑clause (l)‑ is designed earnestly demands that an all‑prevading effect should be given to the expression aforesaid, inasmuch as the laws and legal instruments in question cannot be questioned notwithstanding the provision thereof being in conflict with some provision of the Constitution.

42. It is argued that to emphasis upon the validity of the law mentioned in sub‑clause (1), the law‑giver use three expressions "declared", "affirmed" and adopted". To explain the connotation o these words the learned Attorney‑ General referred to us the dictionary meaning thereof. According to the Chamber's 20th Century Dictionary the word "declared" means, to make known, to announce to assert. In Aiyar's judicial dictionary 9th Edition at page 60, the word "affirm' is defined as "confirmed" e.g. the Court of appeal affirming the lower Courts' judgment. Again reverting to the 20th Century Dictionary the word "adopted" is explained therein as, to take voluntarily a one's own child to take up, to take over. Sub‑clause (1) Ibid is analogous to Article 281 (1) of the Interim Constitution as amended by Presidential Order No.3 of 1973, except that in the latter part of sub‑clause (1) of Article 270‑A,, the words "affirmed" and "adopted" have been included and further there is addition of expression "on any ground whatsoever". But in our view, the words "on any ground whatsoever", do not enlarge the scope of validation but merely re‑enforce the protection from scrutiny by the Courts, already given to the legal measures. These words form part of Article 269 (1) o 1973 Constitution and fell for consideration before the Supreme Court during the course of interpretation of Article 281 in Saeed Ahmad's case and the Court observed that the addition of these words did not make any difference. Earlier the scope of the Article was determined by the Supreme Court, in Zia‑ur‑Rehman's case. At page 166 of the report in Saeed Ahmad's case it is laid down.‑‑ . . . after our decision in Zia‑ur‑Rehman's case we are no longer in a position to say that the Martial Law Regulations, under which the executive actions impugned in the present cases were taken, have not acquired the status of 'law' within the meaning of these Articles. In any event it is not possible for us to declare that a provision of the Constitution is not law because it seeks to oust the jurisdiction of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot strike it down. We can only interpret it, according to the accepted rules of interpretation and define its nature and scope .. We, therefore, hold that the purpose of sub‑Article (1) is to validate the legal measures enacted during Martial Law, notwithstanding any Constitutional defect and irrespective of anything to the contrary ill any judgment. The jurisdiction of the Courts has been completely ousted to question the vires of these legal measures. The ouster clause, clearly debars the Court from pronouncing upon the constitutionality of the said legal measures. To the same effect is the view of the Full Bench in Muhammad Bachal Memon v. Govt. of Sind (P L D 1987 Kar. 296) placed by the parties before us, with which we respectfully agree.

43. According to the learned Attorney‑General, all legal measures having been validated under clause (1) of Article 270‑A, while interpreting clause (2), full effect has to be given to such validation and it should not be construed in a manner that the purpose for which clause (1) was enacted is frustrated. Ostensibly the are is well‑grounded. Indeed, it is the duty of the Court to effectuate the legislative intention but as truly stated, such intention is to be searched for, primarily from the language employed by the Legislature and may also be gathered by comparison of one part of the Statute with the other. On comparison of language of clause (1) with that of clause (2), it is significant to note that the words "notwithstanding any judgment of any Court" appearing in clause (1) have been repeated in clause (2) but the expression "notwithstanding anything contained in the Constitution", used in clause (1), does not find mention in clause (2). The omission is not the result of any oversight, but has been made designedly. It is a clear manifestation of lack of identity of the scope of validation of the subject‑matter of the two clauses. So far as clause (1) is concerned, as stated earlier, all legal measures have been validated even if these are in conflict with some provision of the Constitution. But as regards clause (2), the intention appears to be not to widen the scope of validation, of the orders made, actions . taken and the acts performed, in exercise of the powers derived from the legal measures validated under clause (1). In this context it can well‑neigh be stated that if an order made in pursuance of the instrumentality s legalized by virtue of clause (1) being not in conformity therewith, is, found obnoxious to some constitutional provision, including Articles 2‑A and 4, there should be no bar for its removal through judicial review. But where the order is in conformity with law receiving validation, the law itself having been protected, such an order is immune from challenge. Such protection may even be accorded to an order falling within the permissible deviations from such laws, such as non‑compliance with a rule of procedure.

44. In reply to these arguments the learned Attorney‑ General asserts that as the laws repugnant to the Constitution, are, saved and validated under clause (1) and such laws being protected, the action under such laws, are purported to be under such laws, shall also be protected. In this view of the matter according to him, there was no necessity of repeating the words "notwithstanding anything contained in the Constitution" in clause (2). He urged that such orders or actions which are in validation of the Constitution, without an intervening law, are not the subject‑matter of clause (2), and, therefore, question of there being in conflict with any provision of the Constitution would not arise.

45. We regret our inability to agree with the learned Attorney General. It is not unusual that a law may be validated but exercise of the power by a ‑public functionary thereunder, may suffer from some illegality and subjected to scrutiny by the Courts. Despite employing the term "purported". the law‑maker has used the words "notwithstanding any judgment of any Court" in clause (2) but avoided to add words not with landing anything contained in the Constitution". We are not unmindful of the legal connotation of the word "purported". Even if enlarged meaning are given to this word, the acts wholly unwarranted by the Statute, under which the Public functionary claims to have proceeded cannot be considered as acts done under the purported exercise of power, derived from such Statue Zia‑ur‑Rahman's case (pages 85 & 86) the Supreme Court construed this word and said‑‑ . . . Be that as it may, however, wide a meaning is given to the word 'purporting', it appears that no Court has extended it to cover an act done which the person doing it had no jurisdiction at all to do or which was clearly outside the sphere of his activities . . . . . only when a person of authority having jurisdiction to do a certain thing in exercise of that jurisdiction does that think wrongly or irregularly, can he claim to be purporting to act in exercise of the powers given to him. It follows, therefore that an act, which is clearly without jurisdiction, or in the case of a judicial or quasi‑judicial act, which is coram non judice, the use of the words 'purported exercise' in the validating clause will not give that act the protection. Now the next question is as to whether acts which are done mala fide are protected by these words. There are some decisions of the British Indian High Courts, which have been referred to in the impugned judgment of the High Court, where it has been held that, if an act within the jurisdiction of a Public Officer is done mala fade in exercise of that jurisdiction it can be said that it is an act 'purported' to be done by that Officer in his public capacity. But so far as this Court is concerned, it has, in several cases laid down that mala fide acts are not exempt from judicial scrutiny .......

46. We are firmly of the view that the omission is indicative of a definite purpose. The word "purported" does not fill in this omission. If the Constitutional protection was intended to be extended even to clause (2), the law‑giver must have expressed himself clearly. The consequences of difference in the language of two cognate provisions, have been highlighted in Zia‑ur‑Rehman's case at page 82 of the report: . . . It is well‑established rule that we have to gather the intention of the law‑maker from the words used by it; and if it has in two clauses of the same Article used different words, then it follows that its intention is not the same, particularly, where such a conclusion also appears to be in consonance with reasons and justice. There can be nothing unreasonable in the law‑maker feeling that, while the legislative measures themselves must be protected from challenge, scope must still be left to a citizen to seek appropriate remedy, where any person or authority vested with powers under these legislative measures had acted in excess of or abuse of his powers or for purposes collateral of the purposes of the legislative measures themselves. It seems only fair that the subjects should have a right to obtain relief and should not be made to suffer injustice where the acts of injustice committed cannot be justified on the basis of the legislative measures validated by clause (1). Surely the Legislature cannot be imputed an intention to perpetuate a patent or manifest injustice . . . . .

47. Article 270‑A (2) is identical to Article 269 (2) of the present Constitution. It is also similar to Article 281 (2) of the interim Constitution. At page 587 of the report in Fauji Foundation's case it is laid down that: . . . . . the word 'validity' in clause (2) of Article 281 of the Constitution would have the same meaning as that given to this word in use (1) of the same Article i.e. that the validity was confined to competence alone. . . . These observations aptly apply to clause (2) of Article 270‑A, for, the word 'Authority' appearing in clause (1) has also been used in clause (2). The rationale of the judgment in Zia‑ur‑Rehman's case, in construing Article 281 (2), is, that the Legislature validates only those acts which are capable of validation. The word "validity" ipso facto does not apply to acts coram non judice, without jurisdiction and mala fide, as, such acts do not qualify for validation and these are never validated. The Courts' jurisdiction regarding acts falling under these categories is not ousted. If the acts done under the. legal instrument receiving validation from the Legislature, are, coram non judice, without jurisdiction or mala fide, they are not validated. The judgment further provides that the Courts shall not presume that such acts have been validated. Whenever, the acts of these three categories are intended to be protected, the Legislature uses the device of a deeming clause. The ouster clause will not, by itself, without deeming clause going so far as to declare that any of the acts covered by the three categories, is, deemed to be validated, apply to such cases,

48. The construction put on Article 281 (2) by the Supreme Court in Zia‑ur‑Rehman's case was reiterated at page 168 of the report, in Saeed Ahmad's case, in the following words:‑ Acts which are done without jurisdiction do not qualify for validation under these provisions. Similarly, acts which were open to challenge even under the measures under which they were taken or done or purported to be so taken or done, are not validated. If so, then do acts which are corium non judice or mala fides stand on a different footing? We think not. As we have already indicated in our judgment in Zia‑ur‑Rehman's case, mala fide acts cannot qualify for validation under the provisions of clause (2) of Article 281, because, they are neither acts duly done not acts purported to be done either in the exercise of or in the purported exercise of powers derived from such Orders, Regulations, Enactments, Notifications, Rules, Orders or Bye‑Laws. Indeed, mala fide acts stand on the same footing as acts done without jurisdiction. Similarly, acts coram non judice also stand on the same footing, because, these words literally mean that they have been done by an authority or a body exercising judicial or quasi‑judicial powers which was not properly constituted even under the law under which it was set up and that its decision is not a decision of a competent authority. If this be so then such acts do not also qualify for validation and they have not been saved from scrutiny by the ouster clause, no matter how widely that ouster clause may be worded. The ouster is of necessity to be limited upon a proper construction of the provisions of clause (2) of Article 281 only to those acts, orders or proceedings which qualify for validation. . . .' " The attention. of the Supreme Court was drawn to the words "on any ground whatsoever" included in Article 269 but it was held that these words, were not sufficient to take away the jurisdiction of the Courts, to scrutinise the acts not validated by the earlier clause and thus, the acts done, proceedings taken and orders made, without jurisdiction or coram non judice or mala fide, were not protected. Even in Fauji Foundation's case (paragraph 149) it has been maintained that the constitutional provisions, as construed, did not confer any validation on these three categories of acts and to such acts no immunity 'could be extended. 49- It has long beet. widely accepted, that where an Act of legislature or a section thereof has received, judicial interpretation and in a subsequent enactment or a provision of law, pari materia, the same words, in similar context, are,. used, such use is to be considered as a legislative recognition of the meaning but on these words by the Courts, In the case of Greveas v. Tofield (i880)‑14 Ch 563) James, L.J., scribed this rule as' follows‑‑ ..if an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well‑known rule of construction is to assume that the Legislature when using well‑known words upon which there have been well‑known decisions, uses these words in the sense which the decisions have attached to them . If clause (5) of Article 270‑A with which we will deal shortly, is presently ignored, it can well be presumed that clause (2) of Article 270‑A gives a recognition to the judicial interpretation of Article 269(2) in Saeed Ahmad's case and it will be reasonable to hold that acts coram non judice, without jurisdiction and mala fide were not intended to be covered by the protection envisaged by clause (2)1 ibid.

50. Clauses (1) and (2) of Article 270‑A are to be essentially tied up with clause (5) which is a new device aimed at ousting the jurisdiction of the Court and has been added for the first time to the constitutional provision dealing with indemnity and validation of the acts of the Martial Law Regime. It is reproduced below:‑‑ "For the purpose of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby." Clause (4) is not relevant to the controversy before us and is being excluded from consideration. It will be seen that clause (5) ordains two things, firstly, the orders made, proceedings conducted for the purpose of clauses (1) and (2) are by virtue of legal fiction, to be treated to have been made and conducted in good faith and, secondly, to achieve the purposes intended to be served by the said clauses To explain the meaning of the word 'purpose' the learn Attorney‑General has cited Ballentine Dictionary, 3rd Edition, page 1028. The meanings given therein are "an aim, a design, an intention, purpose of Statute, an object or motive of the Statute". He also referred to Black's Law Dictionary (5th Edition page 1112) according to which the "purpose" means, that which one sets before him to accomplish; an end, intention, or aim, object plan, project." It is argued that the purpose of enacting clauses (1) and (2) is to validate Laws, Orders, actions and to oust the jurisdiction of the Court to sit on judgment upon such validation. It is added that if the Court declares to have jurisdiction to scrutinise the vires of the laws or actions taken under these laws, the purpose of Article 270‑A will be frustrated. He contended that clause (5) is demonstrative of the law‑maker's anxiety to fully effectuate the validation and the ouster of jurisdiction. In the estimation of the learned Attorney‑ General the expression "for the purpose to be served thereby" covers acts coram non judice and without jurisdiction and if the Court comes to the conclusion that it has jurisdiction to examine the legality of the acts of these categories, or mala fide acts, the purpose will not be fulfilled. We find that in Muhammad Buchal Memon's case clause (5) has beer interpreted as under:‑‑ ......... The ouster of jurisdiction is however, an indirect effect of this clause. This clause does not as such oust the jurisdiction of this Court under section 199, but it does make it mandatory for everyone including Courts to deem that an action as referred to in clause (2) of Article 270‑A was taken bona fide and for the purpose for which it was meant. Therefore, the effect of this clause appears to be that although an action may not appear to have been taken in a good faith and for the purpose to be served thereby yet this clause shall oblige us to treat it as done in good faith. And again even though the action may not appear to have been for the purpose for which it was intended to be under the statute yet this deeming clause, which is a part of the Constitution itself, will not leave it open to the Courts or to anyone else to declare that the action was not taken for the purpose provided in the statute, but on the other hand to treat it as the action taken for that purpose. It therefore, appears that the legislature has closed the door of enquiry and scrutiny to the extent of the challenged based on mala fide nature of the action After referring to page 174 of the report in Saeed Ahmad's case in which the word Imala fide' has elaborately been discussed, the Full Bench concluded: It would, therefore, be clear that the effect of clause (5) of Article 270‑A is to avoid the effect of interpretation of mala fides by the Supreme Court as reproduced in above para. It, therefore, saves challenge based on any kind of mala fides but does not save the action from the challenge based on coram non judice or without jurisdiction

51. We, entirely agree with the view expressed by the Full Bench that clause (5) does not convey the constitutional mandate debarring Y the Court from adjudicating upon the validity of the acts coram non judice and without jurisdiction. The immunity given to mala fide act ion pursuance of clause (5), has been discussed by us separately'. for the time being confining to clause (5) only we may observe that the ouster of jurisdiction in relation to acts coram non judice and without jurisdiction, is neither visible from this clause expressly nor 'its language is susceptible of such meaning by necessary implication. The purpose of clause (2) is that, which is deductable from its plain language and has been alluded to by us in the earlier part of this judgment. Clause (5) merely re‑enforces and fortifies that which is already included in clause (2) and does not enlarge its scope so as to make acts coram judice and without jurisdiction fall within the protection contemplated thereby, Furthermore, the validity conferred Z by clause (2) cannot be absolute, If it is considered absolute, the right of filing petition or application for review under para 6 of Martial Law Order No. 107 against the sentences awarded by Military Courts which had not been confirmed on or before the date on which Article 270‑A came into force and the remedy to submit a petition under para. 7 to the President or the Governor as the case may be against such sentences will not be available to the aggrieved party. The ouster clause does not affect the rights to prefer such review application and petition. In this view of the matter, the protection given under clause (2) is not unrestricted.

52. Mr. S.M. Zafar has advanced another argument, in respect of clause (5) of Article 270‑A. He urged that malice is of two kinds; (i) malice in fact and (ii) malice in law. He further submitted that the object of this clause is to give protection to the mala ride acts and explained the distinction between mala fide in law and mala fide in fact. According to him clause (5) indemnifies only the orders and acts suffering from mala fide in fact, and does not give coverage to malice in law. The object of its insertion in Article 270‑A, is, that vindictiveness, ill‑will and improper motive is not attributed to Martial Law Authorities and the public functionaries who manned Military Courts, or otherwise were connected with performance of duties during Martial Law Regime and in that capacity, exercised powers, conducted proceedings, passed orders, or were instrumental in the implementation of the same. The learned Attorney‑ General, however, endeavored to persuade us that the two species of malice, in reality are two overlapping and interchangeable terms of legal vocabulary and that user of deeming clause, in clause (5) is aimed at negation of imputation, to such public functionaries, of both 'malice in fact' as well as "malice in law". He relied upon Bireshwar Chakravarti v. L.N. Kaula and others A I R 1957 All. 671 in which it is held that:‑ .Mala fide action or 'malice in law' are not to be easily presumed. A party alleging these has to satisfy the Court that there are such facts and circumstances on which malice or mala fides could legitimately be found .......... This however, in our opinion does not whittle down the distinction between the two categories of malice which are two well‑known concepts of law. Bayley, J. in Bromage v. Prosser (4 B. & C. 255) observed: ... . Malice in common acceptation means ill‑will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse These observations were quoted with approval by House of Lords in Allen v. Flood 1897 A.C. 1 and per Lord Watson at page 94 of the report: ‑‑ The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed .......... In Judiciary Under Constitution' by R.C. Chaturvedi 1967 Edt. At page 183, the rule is re‑stated as under: The question of 'malice in law' does not necessarily include the imputation of dishonest motive. But it includes the want of necessary care and caution ..... Malice in law further includes a non‑application of mind on the part of the authority vested with powers .. Again in law of Writs by V.G. Ram Chandran, it is stated .......... Malice in law' is different from 'malice in fact' and may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause ........... Malice in fact is quite different thing; it means actual mala fide intention on the part of the person who has done the wrongful act

53. Malice in law is thus, different from the malice as known in AA the common parlance which is usually associated with evil motive Influencing the mind of the person committing the malicious act. The distinction between the two categories of malice is also evident from the following observations, in the judgment of a Division Bench of the Karachi High Court in the case of Haji Hashmat-ullah and 9 others v. Karachi Municipal Corporation and 3 others P L D 1971 Kar. 514 to which Muhammad Haleem, J. (as he then was) is a party: An order in violation of law is mala. fide in law, though actual malice may not be present in the mind of the Authority passing the order ........ The gist of Mr. S.M. Zafarls argument, is, that through the medium of deeming clause, the law‑maker has extended the presumption of good faith to the orders and acts, referred to in clause (2). Thus, in road has been made into the jurisdiction of the superior judiciary and it, therefore, should be construed with a pronounced leaning in favour of existence of jurisdiction and confined to minimum limits, meaning thereby that the protection given under legal fiction should be restricted to mala fide in fact' only.

54. It seems to us that the Karachi case was not argued before the Full Bench from this angle. We have considered this argument with care. Our examination of Mahreen Zaibun Nisa v. Land Commissioner, Multan and others P L D 1975 S C 397 and other decided cases referred to us by the learned Attorney‑ General ' reveals that the word "deemed" is commonly introduced to create a legal fiction and when used in relation to a particular thing, it implies that the Legislature wants that thing to be treated as something which in reality it is not. While full effect has to be given to the deeming clause, nevertheless as laid down in Begum B.H. Syed V. Mst. Afzal Jehan Begum and another P L D 1970 S C

29. The Court has to determine the limits within which and the purpose for which the Legislature has created the fiction For gauging these limitations, we can well be guided by the weighty observations of Hamood ur Rahman, C.J. in Zia‑ur‑Rehman's case (page 80‑81) to which our attention has been drawn by the learned counsel for the petitioners. .......... ......... As a general rule it is unthinkable that any Legislature consisting of civilised person would in normal circumstances seek to perpetrate a manifest injustice by validating acts done in excess of jurisdiction or in abuse of jurisdiction or clearly in bad faith and it is for this reason that the Courts, out of respect for the Legislature, start with the presumption that the Legislature has to be imputed a just intention unless the words of ouster used are either so express or so unequivocable that it must come to the contrary conclusion. The Legislature however, even in abnormal circumstances, does not use such express or clear words or words which would necessarily imply such an unfair or unjust intent but resorts to legislative devices of incorporating 'deeming' clause or extending the validity to even, acts 'purported' to be done in exercise of statutory powers and then to add a clause saying that no Court shall call in question such acts. It is in the latter case that difficulties arise. What meaning are the Courts to give to these words? How are they to be interpreted? Should they proceed on the well‑recognised assumption, firmly established by a long line of decisions, that a Legislature always intends what is just, fair and equitable in the circumstances of the abnormal situation it was called upon to provide for or should they cast this principle to the winds? ‑‑‑ If the Legislature for a beneficial public purpose makes provision for depriving a citizen of his property in certain circumstances and adds to the statute such an ouster clause together with a protection for acts deemed to be done or purported to be done in exercise of the powers given by that statute should the Courts say that they are powerless even if a public functionary maliciously deprives a citizen of his property for the functionary's private aggrandisement merely because he says that he acts in exercise of his powers under that statute? This is the difficult task which the Courts have, unfortunately to undertake as a part of the Constitutional duty imposed upon them to hear and determine disputes. In the case of the High Courts this duty is more onerous and more difficult because Article 201 of the Interim Constitution itself further charges them to keep an aggrieved citizen protected from unlawful executive acts. I am not unmindful of the fact that this power itself is subject to other provisions of the Interim Constitution and it has been claimed that Article 281 makes such other provision. I shall presently examine how far this claim is justified and whether it extends to the extent suggested by the learned Attorney‑General and Advocate‑ General but at this stage I only wish to highlight the very delicate nature of the task, which the superior Courts are called upon to undertake of maintaining a just and fair balance between the rights of the citizen and those of the Legislature both conferred by the same Constitution. If it is possible to interpret the Constitution so as to preserve both then that should be done, for, that would be the most desirable solution. If not then which one should prevail and to what extent?" The deeming clause has been employed with the object of taking the jurisdiction of the superior judiciary. But as regards the ouster of jurisdiction indeed as is so well-stated in Zia-ur-Rehman s case (page 80), ........... the Courts having the right to interpret the law EE will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principles consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster ........ In consonance with this dictum, we are required to subject the deeming clause to strict interpretation and resolve all reasonable doubts against deprivation of jurisdiction of the Courts. As a general rule, therefore governing the ouster of jurisdiction, the etymological connotation and scope of the expression "good faith" which is an antonym of mala fide", so far as possible, must be determined with a degree strictness, and retained in the narrowest limit, of course, without unduly straining the meaning thereof. Led by this interpretative process, we are of the view that the operation of the ouster clause as well as object of the deeming clause, can safely be preserved by assuming that clause (5) is intended to apply only to mala fide in fact.

56. It would be seen that the petitioners sought support from the Full Bench decision of the Karachi High Court in so far as it up‑holds the jurisdiction of the Court. We have already noticed, that this decision is largely influenced by the Supreme Court's judgments in the cases of Zia‑ur‑Rehman, Saeed Ahmad and Fauji Foundation. The learned Attorney‑ General has forcefully questioned the correctness of Full Bench reliance on these three judgments. In this judgment it has already been observed elsewhere that in clauses (1) and (2) of Article 270‑A the expression "notwithstanding any judgment of any Court" has been used. In this respect, the learned Attorney‑General's objection is, that word "any" appearing in non obstante clause, excludes limitations and qualifications and thus would cover not only Begum Nusrat Bhutto's case but also the Supreme Court's judgments in Zia‑ur‑Rehman, Saeed Ahmad and Fauji Foundation's cases. He placed reliance on Allah Ditta v. State P L D 1976 Lah. 823 in which the adjective "any" used in section 7 of the Pakistan Army Act, 1952, was considered as connoting wide generality. He also referred to Aiyer's judicial dictionary, 9th Edition in which it is stated that the use of expression "any" would be equal to word "all" in certain context.

57. This argument of the learned Attorney‑General cannot be accepted for more than one reasons. We have already recorded our verdict that clause (1) of Article 270‑A removes the lacuna in the competency of the law‑maker and clause (2) covers only those orders and acts which were passed or done under the laws qualified for validation. As mentioned earlier, Begum Nusrat Bhutto's case conferred validity on the Martial Law Regime and further prescribed the permissible limits within which the Chief Martial Law Administrator could issue legislative measures, amend the Constitution and perform the necessary acts connected with the affairs of the State. The non obstante clause, therefore, applies only to Begum Nusrat Bhutto's case, otherwise, perhaps a number of legislative measures and actions of the Martial Law Authorities would have been invalidated. To our mind, similar was the situation when Article 281 of the Interim Constitution was enacted. It is evident that the same non obstante clause is there in Article 281(2). In Saeed Ahmad's case at page 67 of the report the Supreme Court maintained that it was introduced to take away the effect of only the judgment in Aasma Jillani's case, under which the acts would have been rendered invalid and it did not affect the decision in Zia‑ur‑Rehman's case, though it was then in the field. It is noteworthy that this non obstante clause was added to Article 281(2) after the announcement of the said decision, w.e.f. 21‑4‑1972 when the Interim Constitution was enforced. In this connection, in Fauji Foundation's case, (para. 145) it has been observed that clause (1) of Article 281 is meant to abandon the principle of condonation extended in Aasma Jillani's case: .as it appeared to the Constitution‑ makers that it was impossible to judge every legislative measure on the principle of condonation and for this reason this expression was used while giving validity to them Judging on the parity of reasoning we are of the opinion that the non obstante clause figuring in clauses (1) and (2) of Article 270‑A nullifies the effect of Begum Nusrat Bhutto's case and is not mean to cover other cases. We are obliged to arrive at this conclusion also for the reason that non obstante clause is not found in Article 270‑A(5). It may be observed that the objection raised before us was also. urged before the Full Bench. It was dealt with in the following words, with which we respectfully agree: ......... The words 'notwithstanding any judgment of any Court' used in clause (2) Article 270‑A cannot be construed to exclude the interpretation of the Supreme Court upon such words. The only meaning given to these words could be that if there had been a judgment of any Court like the judgment in the case of Asma Jilani, where all the laws made by usurper General Yahya were declared void or a judgment in the cast of Mrs. Nusrat Bhutto v. Federation of Pakistan, which had saved the general superintendence of the Courts in respect of all actions of Martial Law Authorities by declaring that C. M .L .A. Order 1 of 1977 was not valid to the extent of exclusion of supervisory jurisdiction of Supreme Court, then the effect of these judgments would have been lost by the words 'Notwithstanding any judgment of any Court'. However, the interpretation of the Supreme Court upon the use of similar words is not deemed to be excluded by such expression as the same is of universal application....

58. We now come to the other limb of the argument of the learned Attorney‑ General that for interpretation of Article 270‑A, the three cases aforesaid, are not attracted, as these, proceeded on different basis, and therefore, the Full Bench was not justified to rely on them to arrive at the conclusion that power of judicial review could be exercised in respect of the acts coram non judice and without jurisdiction. This argument is pegged on the difference between the legal measures adopted at the time of' lifting of Martial Law of 5th July, 1977, to save the rights, obligations arid liabilities, acquired or incurred during the Martial Law and those enacted for the same purpose, in relation to the Martial Law of Gen. Yahya Khan. In the latter case, Martial Law Regulations and Martial Law Orders were repealed by virtue of Article 280 and validation conferred on then. by Art. 281 of the Interim Constitution. The effect of the repeal of the laws, was taken care of in Article 295, couched in terms of Article 264 of the present Constitution. Clause (b) of Article 295 which is relevant for the purpose of the issue under examination, lays down that the repeal of the legal measures shall not: "Affect the previous operation of the law or anything duly done or suffered under the law." But on the other hand, in the case of Martial Law imposed by Gen. Muhammad Ziaul Haq, the Martial Law Regulations and Martial Law Orders have not been repealed by any constitutional provision, ‑but these have been cancelled under para. 3 of Martial Law Order No. 107 and as regards the saving of the previous operation of the legal measures so cancelled, its para. 4 provides: The I cancellation of the Martial Law Regulations and Martial Law Orders, referred to hi clause (1) of paragraph 3, shall [lot affect tilt previous operation thereto, and anything done, action taken, obligation, liability, penalty or punishment incurred, or proceedings commenced shall be deemed to have been properly and validly done, taken, incurred or commenced, as the case may be.", With this analysis of the two dispensations, the learned Attorney General contends that the entire reasoning in Zia‑ur‑Rehmans' case is based on Articles 280, 281 and 295 followed in other two cases. He then referred to us the following passage from page 89 of the report in Zia‑ur‑Rehman's case: ......... the provisions of Article 295 will have to be applied to the repealed legislative measures and thereunder it is significant that only acts 'duly done' or things 'suffered under the low' are protected. Acts done mala fide or without jurisdiction or acts which are coram non judice would clearly not be acts 'duly done' and, therefore, the protection would not extend to such acts It is urged that so far as Article 270‑A is concerned, the Martial Law Regulations, Martial Law Orders have not been repealed, so as to attract Article 264, But these have merely been cancelled and moreover the word "duly" is missing from paragraph, 4 of the Martial Law Order 107. resultantly in hit; submission‑‑, saving of the previous operations of the legal measures cancelled, and of the acts done 'thereunder, is not dependent on their having been duly done as was the position under Article 295.