P L D 1962 (W (PLP)

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2. The territories hitherto known as the Federal Territory of Karachi (hereinafter referred to as the Specified Territory) shall as from the appointed day be a part of West Pakistan." The Article 3 of the same Order it was said: "

3. The Specified Territory shall, with effect from the appointed day, cease to be administered as Federal Territory and be known as the Karachi Division of West Pakistan and administered accordingly."

5. The argument put across by the learned counsel for the petitioners is that before the Federal Territory of Karachi was merged into West Pakistan it was being administered by the Agent to the President who bad the authority under the law to exer cise powers under section 3 of the Security of Pakistan Act, 1952, himself or direct the same to be exercised by other subordinate officers not below the rank of the District Magistrate. After the merger of Federal Territory of Karachi the position, according to him, has completely changed. The Federal Territory of Karachi is no longer to be administered by the Agent to the President. It is to be administered now by the Governor of West Pakistan. Since there has been no amendment in section 18 of the Security of Pakistan Act, 1952, substituting the word " Agent " by the Governor of West Pakistan, the power conferred earlier under section 18 by the Central Government on the Agent or on any of his subordinates no longer vests in them. The Commissioner of Karachi, therefore, according to the learned counsel, had no power on 2nd August 1961, to exercise the powers under section 3 of the Security of Pakistan Act 1952, and pass the impugned orders against the petitioners, the Federal Territory of Karachi having been merged in West Pakistan on 1st July 1961.

6. On a consideration of the arguments advanced by the learned counsel for the petitioners, we do not see our way to agree with the submissions made by him. For the purposes of disposing of the argument advanced by the learned counsel for the petitioners, it is necessary to reproduce Articles 5 and 10 of the President's Order No. 9 of 1961. Article 5 reads as under: "

5. Except as otherwise provided in this Order, all laws, including Acts, Ordinances, Orders, Bye‑laws, rules, regulations and notifications, In force in the Specified Territory or any part thereof immediately before the appointed day, shall, so far as applicable, and with the necessary adaptations, continue in force, until altered, repealed or amended, by competent authority." Article 10 (1) reads as under: " 10 (1). Notwithstanding anything to the contrary in any law, rule or order‑-- The Administrator of the Federal Territory of Karachi and the Collector, Karachi District, shall as from the appointed day, be designated as the Commissioner, Karachi Division, and the Deputy Commissioner, Karachi, respectively, and until the laws and rules mentioned in Article 5 are altered, repealed or amended, exercise the same powers and functions as hitherto subject to the general supervision and direction of the Government of West Pakistan." Article 5 of Order No‑ 9 of 1961 has kept all laws, including the Acts, Ordinances, Orders, bye‑laws, rules, regulations and notifi cations, in force in the Specified Territory or any part thereof immediately before the 1st July 1961, so far as applicable, and with the necessary adaptations alive, unless the said laws, etc., are in conflict with the provisions of Order No. 9 of 1961. Mr. Lari, the learned counsel for the petitioners, has argued that the power of the Commissioner to pass an order under section 3 of the Security of Pakistan Act, 1952, was derived by him under President's Order No. 20 of 1960 and that Order having been expressly repealed by Article 12 of President's Order No. 9 of 1961, the Commissioner no longer holds those powers and as such the orders passed by him in respect of the petitioners under section 3 of the Security of Pakistan Act, 1952, are without jurisdiction. It is difficult to accept the argument of Mr. Lari. It is true that Article 12 of the President's Order No. 9 of 1961, has repealed the President's Order No. 20 of 1960, but by what is contained in Article 12 of President's Order No. 9 of 1961, section 18 of the Security of Pakistan Act, 1952, has not been repealed directly or by implication. President's Order No. 20 of 1960, inter alia, merely said that the territory demarcated by the, Pakistan (Establishment of the Federal Capital) Order, 1948 and known as the Federal Capital shall be and be known as the Federal Territory of Karachi and shall be adminis tered by the President through an Agent appointed by him. The Agent was appointed and it is conceded that the power under section 18 of the Security of Pakistan Act, 1952, was conferred on him. It is also conceded that the Agent in turn had ordered the same power to be exercised by the Administrator of Karachi. It is also conceded that the power under section 3 of the Security of Pakistan Act, 1952, continued to be exercised by the Com missioner of Karachi validly and legally up to 1st July 1961, the date on which Karachi was merged into West Pakistan. Article 5 of President's Order No. 9 of 1961, has kept all laws, etc., with the necessary adaptations alive until repealed or amended by competent authority. By repeal of President's Order No. 20 of 1960, therefore, section 18 of the Security of Pakistan Act, 1952, or the power conferred. under section 18 under notifica tion has not been repealed or taken away. The power was continu ed to be exercised by the Administrator of Karachi upto 1st July 1961, and vested in him legally not under Order No. 20 of 1960, but under a notification passed under section 18 of the Security of Pakistan Act, 1952. Article 10 (1) of President's Order No. 9 of 1961, as reproduced above, would indicate that the Administra tor of Federal Territory of Karachi from the appointed day e was to be designated as the Commissioner, Karachi Division, and was to exercise the same powers and functions as hitherto, subject to the general supervision and direction of the Government of West Pakistan. The Administrator of Karachi having exercised the power legally under section 3 of the Security of Pakistan Act, 1952, up to 1st July 1961, the powers so exercised by him up to that day would obviously be kept alive by Article 5 of President's Order No. 9 of 1961. We are, therefore, clearly of the view that the Commissioner on the day he passed the impugned orders was competent to pass them under President's Order No. 9 of 1961.

7. The other contention of the learned counsel for the petitioners was that the Commissioner of Karachi even if it be assumed had the power to pass the impugned orders the orders he passed would be restricted to the territorial limits of Karachi only. His argument was that the impugned orders of the Commissioner externed the petitioners not only from Karachi but also from Hyderabad and Khairpur Divisions and controlled their future movements. The orders of the Commissioner externing the petitioners from Hyderabad and Khairpur Divisions and thereafter controlling their movements under clause (e) of section 3 of the Security of Pakistan Act, 1952, would be ultra vires of the powers conferred on him. In support of this argument the learned counsel for the petitioners again laid stress on what was con tainer) in section 18 of the Security of Pakistan Act, 1952, and stated that the power delegated by the Central Government to the Commissioner, whether directly or Indirectly, was to be exercised by him "in respect of Karachi" only. We do not see our way to agree with the learned counsel even on this issue. It is conceded by the learned counsel for the petitioners that if the order controlling the movements of the petitioners and externing them from Hyderabad and Khairpur Divisions had been passed by the Central Government there would be nothing wrong with that order The grievance expressed is that since the order was passed by the Commissioner who was authorised to pass that order only in respect of Karachi under section 18 of the Security of Pakistan Act, 1952, he had gone far beyond the power conferred on him and done something more than what he was required to do under the law. The power exercised by the Commissioner is of the Central Government and he has exercised that power on behalf of the Central Government in his capacity as a delegatee. A delegatee when he exercises the powers of a principal has the power to exercise the same powers which the principal possesses and since the principal (the Central Government) had the power to pass an order of the type passed by the Commissioner the Commissioner, in our view, was competent to pass the impugned orders whereby the petitioners had been externed from Khairpur and Hyderabad Divisions and whereby their future movements had been controlled. The words "in respect of Karachi" appearing in section 18 of the Security of Pakistan Act, 1952, according to us, have reference only to the persons residing in Karachi at the time when the order purporting to be an order under section 3 of the Security of Pakistan Act, 1952, was passed. It is nobody's case that the petitioners were not residing within the local limits of the Karachi Division and since they were living within the local limits of Karachi Division the Commissioner of Karachi could pass an order regarding them in accordance with the provisions contained in section 3 (1) clauses (c) and (e), Security of Pakistan Act, 1952.

8. The third point urged by the learned counsel for the petitioners is that the orders passed by the Commissioner are mala fide. The burden of proving the allegation that the orders of the Commissioner were mala fide was admittedly on the petitioners themselves. What they have alleged in their petitions on this issue is as under "The impugned order is mala fide and has been made with an ulterior object of cowing down the petitioner and other students and prevent them from voicing and pressing for redress of legitimate grievances of students community in Karachi even though students of Karachi had been assured by competent authorities that their legitimate grievances would be redressed." The whole fabric of this argument has been founded ostensibly on the ground that the petitioners had been given an assurance by competent authorities that their legitimate grievances would be redressed and despite that assurance they have been externed with a view to stifle their demands for redress of grievances. In the first instance it is not clear from the petition as to who were the competent authorities who had given those assurances to the petitioners that their grievances would be redressed. At any rate, it is nobody's case that the Commissioner of Karachi had extended those assurances to them, and if the Commissioner of Karachi bad not done so he cannot conceivably be said to have acted in violation of that assurance and done an act which was conducive J to stifle their demands for redress of grievances. Apart from that, the Commissioner of Karachi himself has filed an affidavit refuting the allegations contained in the petitions.

9. The similarity of the words used in these orders and the externing of the petitioners from Karachi to other places are other circumstances from which an inference is sought to be deduced that the orders passed by the Commissioner of Karachi were mala fide. These reasons of the learned counsel for the petitioners are not sufficient for holding that the orders passed by the Commissioner of Karachi were mala fide.

10. Apart from that Mr. Tufailali, the learned counsel for the respondent has referred us to Martial Law Regulation No. 72 which reads as under "72 (1). Notwithstanding anything in the Laws (Continuance In Force) Order, 1958 (President's Order Post‑Proclamation No. I of 1958), anything done or to be done, or intended, expressed or purported to be, or to have been done, under the Security of Pakistan Act, 1952 (XXXV of 1952), on or after the 10th day of October 1958, shall be deemed to be or to have been done under this Regulation, as if the provisions of the said Act as amended after the said day were for the time being incorpora ted in this Regulation, and shall have and shall be deemed always to have had effect accordingly. (2) Notwithstanding anything in the aforesaid Order, no suit, prosecution or other legal proceedings, whether by way of writ petition or otherwise, shall lie in any Court, including the High Courts and the Supreme Court, against Government, or any person acting under the authority of Government, for anything done or to be done, or intended, expressed or purported to be or to have been done under the aforesaid Act on or after the aforesaid day, and any such suit, prosecution or other legal pro ceedings pending before any such Court shall abate forthwith, and no Court shall proceed with them. (3) No provision of this Regulation shall be called in question in any Court, including the High Courts and the Supreme Court." His contention is that the jurisdiction of the High Courts and the Supreme Court is barred in respect of anything done or to be done or intended, expressed, or purported to be or to have been done under the Security of Pakistan Act, 1952. Although the words of Martial Law Regulation No. 72 are very wide and contemplate all conceivable situations that might arise under orders which have been passed under the Security of Pakistan Act, 1952, Mr. Lari has till referred us to a number of cases and argued that the words used in the Regulation No. 72 do not bar the jurisdiction of the High Court if the order passed by the Commissioner of Karachi is without jurisdiction. He has referred us to the following cases: (1) Iftikhar‑ud‑Din v. Muhammad Sarfraz P L D 1961 S C 585. (2) Zafar‑ul‑Ashan v. Republic of Pakistan P L D 1960 S C (Pak.) 113. (3) Muhammad Ayub Khuhro v. Pakistan P L D 1960 S C (Pak.) 237. (4) Pahlomal Motiram v. Chief Land Commissioner P L D 1961 Kar. 384. (5) Muhammad Sajjad Ali v. Province of East Pakistan P L D 1960 Dacca 854. (6) Sher Muhammad v. Nazir‑ud‑Din P L D 1960 Lab. 853. (7) Abdul Majid w Pakistan P L D 1960 Kar.

921. Out of these cases P L D 1 ‑461 S C 585 has discussed Regu lation No. 72 itself and it will be advantageous to reproduce what their Lordships have said in this case "The assumption of Mr. Mahmud Ali that the Security of Pakistan Act stands incorporated into Martial Law Regulation No. 72 is not justified by what is said in the Regulation. All that the Regulation says is that action under the Security of Pakistan Act shall be immune from attack in Courts as if the orders were passed under this Regulation. The words used "shall be deemed to be or to have been done, as if the provi sions of the said Act as amended after the said day were for the time being incorporated in this Regulation" have not the effect of actually incorporating the Security of Pakistan Act but only of affording immunity to action taken under that Act. Words referring to incorporation were used only to indicate the nature and extent of the immunity that was granted to the acts I.e., the immunity was to be the same as it would be if the order was passed under the Martial Law Regulation. The object of this Regulation was only to protect action taken under the Security of Pakistan Act and, in fact, had section 1 of the Regulation been omitted altogether the effect of the Regulation would have been the same. Even after the date of this Regulation an order passed under the provisions of the Security of Pakistan Act could not be said to be an order passed under the Martial Law Regulation No. 72, though it would be immune in the same way as It would have been if it was so passed". It will be quite clear from what has been reproduced above that the order passed under the Security of Pakistan Act, 1952, though it will not be an order passed under the Martial Law Regulation No. 72, would still be immune in the same way as it would have been if it was so passed. The immunity of the order under the Security of Pakistan Act, 1952, is conceded to be attached to it by virtue of what is contained in Regulation No.

72. The other cases that have been cited on the subject merely decided that the order, if it was without jurisdiction, can still be looked into by the High Court and immunity attached to‑that order completely disregarded. Ratio decidendi of all these cases is that for the purpose of quashing an order passed by an authority under a Martial Law Regulation it must first be established that the order was passed without jurisdiction. Since we have already said that the impugned orders passed by the Commissioner of Karachi were not without jurisdiction 'the immunity given to those orders under Regulation No. 72 will have to be respected and the High Courts will be barred in going into extraneous considerations to determine whether the order was a proper order or not.

11. We, therefore, for the reasons given above, are of the considered view that the Commissioner of Karachi was competent to pass the impugned orders which are the subject‑matter of these writ petitions. That being the view, Martial Law Regulation No. 72 will be a complete bare to going into further questions. The writ petitions are accordingly dismissed. We, however, pass no order as to costs as the petitions have been filed by the students. K. B. A. Petition dismissed.