P L D 1961 Supreme Court 585 (PLP)

B. Z. KAIKAUS, J.-For a proper appreciation of the points involved in the proceedings which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail. On the 16th of April 1959, the President of Pakistan, by means of Ordinance XXIII of 1959 amended the Security of Pakistan Act, 1952, so as to confer on the Central Government a power to remove any person from the control or management of an undertaking if the undertaking in the opinion of the Central Government published any document containing any news, report or information likely to endanger the defence, or the external affairs or the security of Pakistan, or the undertaking published a document with the aid of funds from foreign sources, and to place any person appointed by it in possession .and control of such undertaking. The Central Government was further em?powered to deprive any owner or in the case of a Company, any director or shareholder, of his interest in that undertaking and to dispose of the undertaking or the shares held by any director or shareholder. On the next day, that is, the 17th of April 1959, the Central Government, acting under the authority so conferred, dissolved the Board of Directors of the Progressive Papers Ltd., a company which is running among other papers the daily newspaper `The Pakistan Times', and ordered Mr. Muhammad Sarfraz to take, over control and management of the affairs of the company as its Administrator having power to perform all the functions of the Board of Directors subject to directions from the Central Government. On 30th of April, 1959, the Central Government passed another order directing that the shares of Mian Iftikhar-ud-Din and his son Arif Iftikhar in the Progressive Papers Ltd., be seized and disposed of by the Administrator by public auction. On the 30th of August, 1959, the Administrator held an auction in accordance with the directions of the Central Government and the bid of Rs. 64,40,000 made by Mr. Ahmad Dawood was accepted by the Government. An amount of about Rs. 35,00,000 was actually paid by Mr. Ahmad Dawood as part price of the shares. However, presumably on account of certain objections raised by Mr. Ahmad Dawood, the price realized was not paid to Mian Iftikhar-ud-Din and Arif Iftikhar, nor was the balance of the amount realized from Mr. Ahmad Dawood, and on the 19th of September, 1960, Mian Iftikhar-ud-Din and Arif Iftikhar filed Writ Petition No. 742 of 1960 in the High Court of West Pakistan with the following prayers :- (i) a mandamus directing the Central Government to perform their statutory duty of paying, to the petitioners the amount realized by the sale of shares ; to take steps to realize the balance of the amount from the vendee ; and not to pay the amount so realized to any other person ; (ii) a mandamus directing the Central Government not to rescind the sale. ????????? Respondents to this petition were the Central Government and the Administrator. Both of them took up the position that in view of Martial Law Regulation No. 72 which debars the Courts from taking any proceeding in respect of an order passed under the Security of Pakistan Act, the High Court had no jurisdiction to entertain the Writ Petition. A Division Bench of the` High Court, on 7th February 1961, came to the conclusion that the Martial Law Regulation No. 72 while it protected any order actually passed under the Security of Pakistan Act from being challenged in a Court of law did not prevent a party from approaching the Court if the Central Government failed to perform its duty under the said Act. Against this order of the High Court the Central Government and the Administrator filed in this Court a petition for special leave to appeal (Civil Petition No. 55 of 1961). Before the petition for special leave came up for hearing, on the 24th of April, 1961, there was another amendment of the Security of Pakistan Act by Presi?dent's Ordinance No. XIV of 1961. By this Ordinance the Central Government was granted a power to confirm the sale effected under the previous amendment as well as a power to cancel such sale on a petition made by the owner of the shares or the vendee. On the same day, the Central Government passed an order confirming the sale by virtue of the powers granted by the new Ordinance. A representation was made by the vendee on the 3rd of May, 1961, for setting aside the sale. Mian Iftikhar-ud-Din and Arif Iftikhar, by a telegram of the 6th May, 1961, opposed the representation, but on the 8th of May, 1961, the Central Government passed an order setting aside the sale and directing refund of the money already paid by the vendee. When the petition for special leave came up for hearing on the 16th of May, 1961, it was adjourned sine die on the ground that a new situation had arisen for if the sale had been validly set aside the writ petition asking for payment of the amount realized by the sale would become infructuous. On the 9th of May, 1961. Mian Iftikharuddin and Arif Iftikhar moved a petition in the High Court praying that imple?mentation of the order of the Central Government be stayed. The learned Chief Justice of the West Pakistan High Court granted an interim stay and appointed a special Bench for hearing the stay application. The Central Government and the Administrator, on the other hand, moved a petition on the 17th of May, 1961, seeking dismissal of the Writ Petition as well as the petition for stay. If reply to this petition Mr. Mahmud Ali, on behalf of Mian Iftikhar-ud-Din and Arif Iftikhar, moved three petitions in the High Court. By the first petition, they asked for an adjournment of hearing of the case in order to take appropriate steps because Mian Iftikhar-ud-Din as well as Arif Iftikhar were both in England the former being subject to a serious cardiac attack and the latter being in attendance upon him: By the second petition, they asked for a direction to the Central Government and the Administrator to produce certain documents, and by the third they asked for a direction for discovery of documents. Ali these three petitions were, however, dismissed by the High Court. On the 31st of May, 1961, the Special Bench dismissed the application for stay, holding that the order of the Central Government setting aside the sale was valid and was also not liable to be challenged in view', of Martial Law Regulation No.

72. The Bench, however, granted a certificate to the affect that the ease was a fit one for appeal to this Court. Mian Iftikhar-ud-Din and Arif Iftikhar (who will hereinafter be called the appellants) then filed an appeal on the basis of the certificate. They, at the same time, filed an Original Writ Petition in this Court (Writ Petition No. K-3 of 1961) praying that the order of the Government dated the 8th of May, 1961, setting aside the sale be quashed. This judgment will dispose of the appeal of the appellants (Civil Appeal No. 49 of 1961) and their Writ Petition as well as the petition filed by the Central Government and the Administrator (Civil Petition for Special Leave to Appeal No. 55 of 1961). Before proceeding to discuss the points raised by the parties it will be convenient to reproduce the relevant legal provisions: Laws (Continuance in Force) Order, 1958 :- "2. (1) Notwithstanding the abrogation of the Constitution of the 23rd March, 1956 hereinafter' referred to as' the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may he in accordance with the late Constitution. (2). Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and, subject further, to the provisions of this Order, in their powers and jurisdictions. (3) The law declared by the Supreme Courts shall be binding on all Courts in Pakistan. (4) The Supreme Court and the High Court shall have power to issue the writs of habeas corpus, mandamus, prohibition quo warranto and certiorari. (5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either. (6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised. (7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclama?tion shall have effect unless it is provided for by this Order, arid all applications land proceedings in respect of any writ which is riot so provided for shall abate forthwith.

3. No Court or person shall call or permit to be called in question,-- (i) the Proclamation; (ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation; (iii) any finding, judgment or order of a Special Military Court or a Summary Military Court. 4. (1) Notwithstanding the abrogation of the late Constitu?tion, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws other than the late Constitution, and all Ordinances, Orders-in-Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the president under the late Constitution as are set out in the Schedule to this Order, Rules, bye-laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra?territorial validity, immediately before the Proclamation, shall so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority. (2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation. (3) No Court shall call into question any adaptation made by the President under clause (1) 5. (1) The powers of a Governor shall be those which he would have had, had the. President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force. (2) In the exercise of the powers conferred by the previous clause the Governor shall act subject to any directions given to him by the President or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator. (3) Nothing in this Article shall prejudice the operation of any Regulation made by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator of Martial Law to make Martial Law Regulations and where any Ordinance or any provision thereof made under clause (1) of this Article is repugnant to any such Regulation or part thereof the Regulation or part shall prevail." Security of Pakistan Act, 1952 (as amended by Ordinance No. XXIII of 1959)- S. 11. "(4) Where in the opinion of the Central Government any document made printed or published contains any news report or information as aforesaid or is made, printed or published with the aid of funds from foreign sources the Central Government may, by order, remove the owners or any of them or, in the case of a company, any director or managing director, or managing agent or any other person from the control or management of the undertaking where such document is made, printed or published for such period or periods as may be specified in the order and appoint a person to take possession of the whole or any part of the undertaking or its property, movable or immovable, and to exercise such powers and perform such duties as may be set down in the order. (5) A person appointed under subsection (4) shall be paid out of the funds of the said undertaking such remuneration as the Central Government may determine. (6) Where an order has been made under subsection (4) the Central Government may give a direction- (a) that the undertaking or any part thereof shall be disposed of in such manner and by such person as may be authorised therein; and (b) in the case of a company that the shares held by every or any director or shareholder shall be seized, wherever the shares may be by such person as may be authorised in the direction and shall be disposed of by him, notwithstanding anything in any law for the time being in force, in such manner that such director or shareholder shall effectively cease to hold them. (7) All moneys realized by a disposal under clause (a) or clause (b) of subsection (6) shall be paid to every owner, director or share-holder whose property has been disposed of, after deducting the cost of disposal. (8) Where any person has been appointed under sub?section (4) to take possession of any undertaking or part thereof or of its property or where a direction has been given in pursuance of clause (b) or subsection (6) for the seizure of shares, any Police Officer may seize the same, anywhere in Pakistan, and any Magistrate may by warrant authorize an' Police Officer not below the rank of the Sub-Inspector to enter upon and search any premises whereon or wherein the salve are or are in good faith believed to be. (9) In forming an opinion under this section the Central Government may take into consideration any complaint by a share-holder where the undertaking is conducted by a company, as to the mode of that conduct or, where the undertaking is conducted by a company or not, any complaint by any person that the undertaking in question is conducted in a manner prejudicial to the public interest." (Security of Pakistan Act, 1952) as amended by Ordinance XIV of 1961- S. 11-A. "Control of certain undertakings and sale of shares, etc.-(1) Where the Central Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing publishing or otherwise disseminating news, reports or information, likely to endanger the defence, the external affairs or the security of Pakistan, or any part thereof, or for the purpose of promoting such interests of any foreign State as are in conflict with the interests of Pakistan, it may, by order, remove the owner or, if there be more than one, all or any of them, and, in the case of a company, all or any of the directors, managing directors, managing agents or any other person., from the' control or management of such undertaking and appoint a person to take possession of the whole or any part of the undertaking or its property, movable, or immovable, and exercise such powers and perform such duties, including, in the case of a company, all or any of the powers or duties of the Board of Directors, as may be set down in the order, and such appoint?ment may at anytime be revoked, and a fresh appointment made on such conditions and with such limitations as the Central Government may determine. (2) Where any order has been made under subsection (1), the Central Government, or any authority or person authorized by it in this behalf, shall, as soon as possible, make arrangements to transfer, subject to such conditions as may be deemed fit, and transfer, by way of sale in any manner considered expedient any right, title or interest in the undertaking, or if the undertaking be a company, in the shares thereof of any director or shareholder to any other person not acting for or on behalf of or in collusion with such director or shareholder. (3) Every sale under subsection (2) shall be subject to confirmation by the Central Government, and such confirmation shall be notified in the Official Gazette. (4) If such undertaking as aforesaid be a company, the Central Government may give a direction that the shares held by every or any director or shareholder shall be seized, wherever the shares may be, for sale under subsection (2), in such manner that such director or shareholder shall effectively cease to hold them. (5) Where possession has been taken tinder subsection (1), or a direction has been given in pursuance of subsection (4) any police officer may seize any property of the undertaking or the shares thereof, or any document relating thereto, found anywhere in Pakistan,, and any Magistrate may by warrant, authorize any police officer not below the rank of Sub-Inspector to enter upon and search for any such property, share or document in any premises where the same may be or may reasonably be suspected to be. (6) The Central Government, or any authority or person authorized by it in this behalf; may, by order, make such arrangements as may be considered expendient to ensure that the continuity, of the functioning of the undertaking affected by an order under subsection (1) is not interrupted during the period between the date of such order and the date on which the person appointed under subsection (1) makes over the control and management of the undertaking under sub?section (5) of section 11-B, and any expenditure incurred in connection with such arrangements, including the remuneration of any person or persons shall be met as the expenses of the undertaking. (7) If within fourteen days of the promulgation of this Ordinance of tote publication of a notification under sub?section (3), the persons whose right, title or interest has been transferred by sale, or the person to whom the sale has been made, makes to the Central Government a representation against the sale, the Central Government, after perusal of the record, may, subject to such condition as it may deem fit to impose, set aside the sale and order a fresh sale. Explanation (I).-A fresh sale under this subsection shall be deemed to be a sale under, subsection (2). Explanation (II).-The Central Government shall not be bound to hear any of the parties or their counsel or agent, or to examine any witness or document, before making an order under this subsection. (8)-Before a sale is set aside under subsection (7), the Central Government may require the person making the representation to pay an amount sufficient to meet the expenses of the sale, and to forefeit to the Central Government such other amount, not exceeding twenty-five percent. of the sale price, as may be determined by the Central Government. (9) If the purchaser fails to pay the full price of the sale, the property may be re-sold, and any deficiency which may happen on re-sale and all expenses attending such re-sale may be recovered from him. (10) Any amount payable under this section, whether as unpaid price, or as forfeiture or otherwise, if not paid within the time specified, if any, shall be recoverable as arrears of land revenue. (11) The sale shall be complete after all proceedings under this section relating to sale or re-sale, as the case may be, have been concluded and all sums due from the purchaser in whose favour the sale has been concluded have been paid by or recovered from him." Martial Law Regulation No. 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 tenth 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 incorporated 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 Acton or after the aforesaid day, and any such suit, prosecution or other legal proceedings 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." Mr. Mahmud Ali, who appears for the appellants contends, in the first place, that Ordinance XIV of 1961 is bad law, and secondly, that any case, the order passed by the Government setting aside the said is invalid. The learned Attorney-General who appears for the Central Government contends, however, that on account of Martial Law Regulation No. 72 the order being one under the Security of Pakistan Act is not liable to any challenge in the Courts at all. He points out that the Regulation is very widely worded and grants immunity to any order which is expressed to be or purports to be under the Security of Pakistan Act. The first question therefore, which has to be decided is whether Martial Law Regulation No. 72 is applicable to the present case. The first ground on which Mr. Mahmud Ali contests the applicability of Martial Law Regulation No. 72 is that it covers only orders passed between the 10th of October 1958, and the 29th of July 1959, the date on which it came into force, and would not apply to the present order which was passed on the 8th of May 1961. For this contention learned counsel relies on the words "for the time being" used in section 1 of the Regulation which words according to him can refer only to the past. It will be observed that the Regulation speaks of anything done after the 10th of October 1958, which words would prima facie cover all orders passed after the 29th of July 1959. Had it been the intention that only orders between the 10th of October 1958 and the 29th of July 1959 were to be protected it would have been quite easy to use clear words to that effect. At the same time, no reason has been put forward before us as to why immunity-from challenge should have been confined to suck orders as were passed before the 29th of July 1959 The date from which the protection granted by the Regulation begins is the 10th of October 1958 the date on which the Laws (Continuance in Force) Order came into force. The intention appears to be to protect all action taken by the present regime under the Security of Pakistan Act. Also, there are in section 1 of the Regulation: words which point clearly to the applicability of the Act to orders passed in future. . It says "shall have and shall be deemed always to have had effect accordingly." These words mean that even in future the provisions of the Security of Pakistan Act would have effect as if they were incorporated in this Regulation. Had it been the intention to protect only orders passed before the coming into force of the Regulation it would have been sufficient to say "shall be deemed always to have had effect accordingly." The words "for the time being", do not necessarily refer to the past and may well have, reference to what is to happen in, future. This is recognied in Stroud's Judicial Dictionary, Vol, IV, where the meaning of the words "for the time being" i thus stated: "The phrase `for the time being' may according to its context mean the time present or denote a single period of time but its general sense is that of time indefinite and refers to an indefinite state of the which will arise in the future and which may (and probably will) vary from time to time.? We see no ground therefore for accepting that the operation of this Regulation was limited to orders passed before 29th July o 1959. The next contention of Mr. Mahmud Ali as regards the applicability of the Regulation is that the words "as amended" in section 1 can mean only "as amended in accordance with law" for an amendment made by an authority that is not competent to make it will not be an amendment at all, and therefore if Ordinance XIV of 1961 be ultra vires of the powers of the Pre?sident, it could not be said that the impugned Order had been passed under the Security of Pakistan Act ,"as amended". The attack on the vires of Ordinance XIV of 1961, he bases on two grounds. The first is that while promulgating the Ordinance the President was exercising only his Ordinance-making powers under the late Constitution which powers had been preserved by Article 2 of the Laws (Continuance in Force) Order, and his Ordinance-making powers being subject to all the limitations con?tained in the late Constitution, the Ordinance which is in conflict with Fundamental Rights provided for in Articles 5, 11 and 15 of the late Constitution is void. The 'second ground of attack is that by means of Martial Law Regulation No. 72 the Security of Pakistan Act stood incorporated in that Regulation and an amend?ment of the Security of Pakistan Act would henceforth amount to an amendment of a Martial Law Regulation and would be beyond the Ordinance-making powers of the President. As regards the first of these grounds of attack, Mr. Mahmud Ali contends that the word `governed' in. Article 2 of the Laws (Continuance in Force) Order includes within its connotation legislative powers and therefore the powers of the President to promulgate Ordinances would be the same as those provided for in the late Constitution except to the extent to which they may have been altered by an Order issued by .the President. The Laws (Continuance in Force) Order, according to his contention provides for two kinds of powers for the President, the first being those which he exercises under the late Constitution and which are subject to all the limitations contained in the Constitution, and the second being his super-constitutional powers of issuing Orders by which he can override anything that is contained in the Constitution. When he promulgates Ordinances he exercises only his powers under the late Constitution and if such powers are exceeded the Ordinance would, to the extent of such excess, be void. Learned counsel contends in this connection that the decision of this Court in State v. Dosso (P L D 1958 SC (Pak.) 533), to the effect that the word `governed' in Article 2 relates to the machinery and structure of the Government and not to legislative powers did not lay down good law. On the question as to whether the word `governed' includes legislative power the learned Attorney-General agrees that such power is Included; and in fact the learned Attorney-General had in the High Court himself tried to justify the promulgation of the Ordinance by the President on the ground that he had such power under the late Constitution and the power had been preserved. The learned Attorney-General also concedes that the limitations on legislative power existing in the late Constitution would control the Ordinance-making power of the President, but he does not concede that Fundamental Rights exist or that the legislative powers of the President would be subject to such rights even when he is acting under the Constitution. We have ourselves found no difficulty in holding that the word `governed' in Article 2 of the Laws (Continuance in Force) Order includes the exercise of legislative power. In its ordinary connotation the word `government' includes legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. Not only is there no indication to the contrary in the Order, but there are considerations almost conclusive which would go to show that the exercise of legislative power was in the present case included in the word `government'. By his Order No. 2 of 1959 called the Legislative Powers Order which was, amended later by Order No. 17 of 1959 the President made certain amendments with respect to the Legislative powers as they existed in the late Constitution. The Order is a short one and may be reproduced in full. (Section 4 was added by Order 17 of 1961) "l. . (I) This Order may be called the Legislative Powers Order, 1959. (2) It shall come into force at once and be deemed to have taken effect immediately after the Laws (Continuance in Force) Order, 1958 took effect.

2. The President shall have exclusive power to make laws with respect to the matters set out in the Schedule to this Order. 3: The executive authority of the Republic shall extend to the said matters. 4. (1) In applying the provisions of clause (1) of Article 2, clause (1) of Article 4 and clause (1) of. Article 5 of the Laws (Continuance in Force) Order, 1958- (a) the matters enumerated in the Provincial List in the Fifth Schedule to the late Constitution shall be deemed to have been included in the Concurrent List of that Schedule; and (b) the power to make laws with respect to any matter not enumerated in any list in the Fifth Schedule, including- any law imposing a tax not mentioned in any such list, shall be deemed to be a power to make, laws with respect to a matter enumerated in the Concurrent List- and the power of the Federation and of a Province to make laws shall be deemed to be regulated and the executive authority of the Federation and of a Province shall be deemed to be extended accordingly." By this Order the President has been granted exclusive power to legislate in respect of matters enumerated in the Schedule to this Order which powers would not vest in him in accordance with the late Constitution. The Order proceeds clearly on the assumption that the provisions of the Constitution relating to legislative power are in force, for it makes amendments in such provisions; it transfers subjects from one List to another; it adds to the concurrent List matters not included in any List and it provides that the executive authority of the Federation and Province is enhanced by the additions to the law-making power of the President and the Governor. The fact that by his own Orders the President was adding to his Ordinance-making powers is a clear argument in favour of the proposition that the President was acting) in a dual capacity. It may also be pointed out that a large number of Orders and Ordinances have been issued by the President of Pakistan since the 10th of October 1958, and the observance of this distinction too points to the conclusion that while promulgating Ordinances the President acts in- exercise of his powers under the late Con?stitution, while in promulgating Orders he exercises his super?-constitutional powers. It may be pointed out that the words in Article 2 "shall be governed as nearly as may be in accordance with" are exactly the same as in subsection (2) of section 8 of the Indian Independence Act, 1947, and may well have been lifted there-from. In that provision these words admittedly referred to all functions of the Government and it will not be improper to infer that the late Constitution was to be in force in Pakistan in the same way as the Government of India Act was to be in force from the 14th of August 1947. In Dosso's case the learned Judges, though they expressed themselves not in exactly the same language, had come to the conclusion that the word `governed' referred to the structure and machinery of the Government and did not include legislative functions: The grounds on which the learned Judges took this view will appear from the following extracts from their judgments :- Mr. Justice Muhammad Munir the then Chief Justice of Pakistan:? "It is true that Article 2 provides that Pakistan shall be governed as nearly as may be in accordance with the late Con?stitution but this provision does not have the effect of restoring fundamental rights because the reference to Government in this Article is to the structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article

4. Article 2 and Article 4 can; there?fore, stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article 4 which are more specific' and. later must override those of Article 2." Shahabuddih, J : - "Viewing the provisions of the new order from this stand?point, I am unable to agree with Mr. Bakhtayar that funda?mental rights are preserved by it. It is true that under Article 2 (1) `Pakistan shall be governed, as nearly as may be' in accordance with the late Constitution' but there is also a specific provision in the, same order, Article 2 (1) which vali?dates all laws in force immediately before the Proclamation other than the late Constitution. This specific exclusion of the late Constitution means that it is not amongst the laws which have received validity from the new Order and, therefore, none of its provisions can affect the laws validated in Article 4 (1) which includes the Frontier Crimes Regulation. The words in Article 2 (1) relied on by Mr. Bakhtayar have to be taken to refer rather to the machinery of Government than to legisla?tion and matters affecting the validity of laws. Article 2 (1) and Article 4 (1) should be read together and so to read they do not conflict with each other." Amiruddin J: - "It was argued in one of the appeals on behalf of the respon?dent that asunder Article 2 of the Order, Pakistan is to be governed as nearly as may be in accordance with the late Constitution, the Fundamental Rights in Part II of the said Constitution are still available to the petitioners for writ. I am unable to accept that Fundamental Rights have been saved. The word `governed' relates to the structure and manner of Government, which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries, and the words in the Articles have not the effect of reviving the Funda?mental Rights. This view finds support also from the language of Article 4 of Clause (1) of the said Order." The case had been heard on the 13th and 14th of October 1958; and the subsequent Orders of the President making amend?ments in the Constitution as well as the fact that the President consistently made a distinction between the Orders and Ordinances i were not before the learned Judges. In the face of the material before us what is said in the judgments reproduced above is not sufficient for holding (we say so with great respect) that the ordinary meaning of the word `governed' should be departed from. In the judgment of Muhammad Munir, C. J. stress is laid on the fact that the Constitution had been abrogated, but the abrogation of the Constitution could imply that the 'Constitution was abrogated as such and would not necessarily be inconsistent with the adoption of the same instrument, for the purposes of the Government of the country. It had not been adopted by the President as providing the laws by which the Government of the country would be regulated. It stood abrogated in spite of 'such adoption, for it was no longer the supreme document to which all laws and all persons were subject. If it was not abrogated there would be no authority in the President or the Martial Law Administrator to make laws inconsistent with it. It was no longer the Constitution of the country, but a creation of the will of the President. In effect, what was intended was that in spite of the abrogation of the Constitution the country was to be governed not by whim and arbitrary action but in accordance with law. Some interim Constitution had to be provided. The President thought fit to adopt the same Constitution to the extent to which it was not repugnant to anything laid down by him, as the document according to which he would carry on the Government. He could have adopted the Constitution of any other country but this was more convenient. It is not now in force as the Constitution, but as an enactment adopted by the President and subject to his will. At the same time, the abrogation of the Constitution cannot be pleaded in reply to the argument that its provisions are still applicable because some of its provi?sions which are deemed to be included in the word `govern' are necessarily applicable. The only question is as to what is the extent of those provisions and that depends upon the meaning which is to be attached to the word "governed". The existence of the words `other than the late Constitution' in Article 4 cannot, in our opinion, be made the basis of an argument that the Constitution was not to remain in force. These words were?? needed because the Constitution was certainly not being continued as the other laws were being continued. It fell in a wholly different category. It had been kept alive but by a wholly distinct method and in a wholly different form and not to its full extent. It was henceforth to be applied not as the Constitution framed by the people but as a working Constitution adopted with modi?fications and subject always to alterations by the President. In Article 4, if an exception had not been made in respect of the Constitution, the words `all laws' might have been argued as including the Constitution. The correct position is that in Article 2 of the Laws (Continuance in Force) Order, the Constitu?tion had already been adopted, though with some modifications, but with a different status, and by Article 4; a provision was being made of a different category with, respect to all other sub?-constitutional laws. Read in this way, there is no inconsistency whatsoever between the two Articles as was suggested in Dosso's case. As a matter of fact, it is only' if we adopt the construc?tion put upon Article 4 in Dosso's case that an inconsistency between Article 4 and Article 2 is created and it is an accepted principle that we should lean in favour of a construction that puts a consistent interpretation on the different parts of a statute. The learned Attorney-General has contended that even though the legislative provisions of the Constitution are in force the Fundamental Rights do not exist and that there will be no restriction on the Ordinance-making power of the Government by what is contained in Part II of the late Constitution. Mr. Mahmud Ali contends, on the other hand, that there is no good ground why the limitation on legislative power imposed by Fundamental Rights should be deemed to have disappeared while all other limitations do exist. The argument employed in Dosso's case that Fundamental Rights do not exist because the President and the Martial Law Administrator are not bound by them, he assails as untenable on the ground that the mere fact that the President and the Martial Law Administrator have the power to interfere with Fundamental Rights does not negative their existence. Under the Constitution, the President had such a power, exercisable in an emergency, and, of course, the Constitu?tion itself was susceptible of amendment in all respects. We have considered whether we should determine in the present case the correctness of the proposition that Fundamental Rights do not exist now in Pakistan and we are of the opinion that we should reserve this consideration for a more appropriate occasion because the determination of this question will not affect the decision of the present case. Even if we were to hold that Fundamental Rights exist, the case of the appellants would not be materially advanced for two reasons. The first is that if the Chief Martial Law Administrator intended by Regulation No. 72 to extend immunity to action taken under all amendments made by the President, whatever the nature of those amendments, then action under such amendments would be protected even if they were in conflict with Fundamental Rights, for the powers of the Chief Martial Law Administrator to legislate are not subject to any restrictions, and it is open to him to provide that action taken under any Ordinance of the President shall not be liable to be questioned in any Court of law. In our opinion, it was intention of the Chief Material Law Administrator promulgating Martial Law Regulation No. 72 that orders passed under any amendment made by the President should be protected. It has to be kept in mind, though it is only an accident, that the Chief Martial Law Administrator and the President happen to ht the same person, and the Chief Martial Law Administrator is himself as President making Ordinances, action under which he is protecting by a Martial Law Regulation. It would be difficult to attribute to him an intention that action taken tinder an Ordinance which he promulgates should be liable to examination by the Courts in presence of the 'strong words used in Martial Law Regulation No. 72 excluding the jurisdiction of Courts. It can also be urged on behalf of the Central Government that an Order passed in exercise of powers granted by an amendment would in any case be an order which purports to be or is expressed to be under the Security of Pakistan Act, and therefore not liable to be challenged. The second reason is that even if we found the Fundamental Rights to exist a further question will arise whether Ordinance XIV of 196i which simply provides, the procedure for confirming or setting aside the sale will in any way be inconsistent with any Fundamental Rights. It will be observed that the appellants do not attack Ordinance XXIII of 1959 which is the Ordinance by which a provision was made for taking away property rights. Ordinance XIV of 1961 is merely an ancillary Ordinance and provides a procedure which is apparently intended for the benefit of the owner as well as the purchaser and incorporates no more than the ordinary provisions relating to the confirmation and cancellation of 'sale of the kind contained in the Civil Procedure Code. We will now take up the last attack on the validity of Ordinance XIV of 1961 which is based on the argument that the Security of Pakistan Act has been incorporated into Martial Law Regulation No.

72. Mr. Mahmud Ali, in support of the contention that if in fact there has been incorporation of one statute in another or there has been. What is called, legislation by reference, any amendments after the date of such incorpora?tion of legislation by reference by the authority that enacted the provision so incorporated will not be read into the law into which they are incorporated, relied upon U. S, Reports 34-37, 9 Lawyers, Edition at p. 1181. The relevant passage is at p. 1221:- "It was not uncommon course of legislation in the- States at an early date to adopt, by reference. British statutes; and this has been the course of legislation by Congress in many instances where State practice and State process has been adopted. And such adoption has always been considered a referring to the law, existing at the time of adoption; and no subsequent legislation has ever been supposed to affect it. And such must necessarily be the effect and operation of such adoption. No other rule would furnish any certainty as to what was the law, and would be adopting prospectively, all changes that might be made in the law. And this has been the light in which this Court has viewed such legislation." This passage has no application to the facts of the case before us. It has reference to the adoption of the British statutes as a whole by the United States. 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 it: Courts as if the Orders were passed under this Regulation. Tile words used "shall be deemed to be or to have been done, a: if the provisions 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 I 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. These were the attacks on Ordinance XIV of 1961. So far as the impugned order is concerned, it has been attacked opt two grounds. The first is that it was passed mala fide. When asked for proof of mala fides Mr. Mahmud Ali said that he had applied for production and discovery of documents and that a fair opportunity for proof had not been afforded to him, but when questioned as to what exactly were the allegations with respect to mala fides which the appellants wanted to establish by production and discovery of documents learned counsel was unable to make any specific allegation. It appears to us that the plea as to mala fides must fail on the simple ground that there are no specific allegations as to mala fides. Before the High Court, too, there was a vague statement that the order was mala fides and the same is the position before us. The other attack on the Order is based on the fact that no opportunity was afforded to the appellants to reply to the representation made by the vendee for setting aside the sale. In section 11-A there is a provision that within 14 days of the order confirming the sale the owner or the vendee can submit the representation for setting aside the sale, and the Central Government can after a perusal of the record, pass such order as it thinks fit. There is a specific provision to the effect that the Central Government shall not be bound to hear any of the parties or to examine any witness or document before making an order of cancellation. The grievance of the appellants is that they were not allowed an opportunity to reply to the objections contained in the representation of the vendee. The conten?tion is that the fact that the Central Government was not bound to hear the parties does not exclude the perusal of a represen?tation which on principles of natural justice a party has a right to make even if it is not entitled to an opportunity of hearing. It is not necessary for us to discuss the merits of the contention that a right to make a representation should exist because even if the Central Government did contravene a principle of natural justice in the procedure, adopted for setting aside the sale its order would not be liable to challenge in a Court of law in view on the wide words of Martial Law Regulation No.

72. As already observed under the Regulation any action which is expressed to be or purports to have been taken under the said Act cannot be made the subject-matter of any proceeding in Court of law. It cannot be said that the order did not purport to be or was not expressed to be under the Security of Pakistan Act. In view of what has been stated above Civil Appeal No. 49 of 1961 and Writ Petition No. K-3 of 1961 fail and are dismissed. Civil Petition for Special Leave to Appeal No. 55 of 1961 has become infructuous and has to be dismissed as such but a decision was given in this ease by the High Court on an important question relating to the applicability of the Martial Law Regulation No. 72 with which we are not in agreement and we would briefly record the reasons for our disagreement. His already stated, the appellant had prayed for a writ of mandamus obliging the Government to perform their statutory duty under the Security of Pakistan Act by paying to the appellants the amount received from the vendee and taking steps to realize from the vendee the balance of the price. In rejecting the plea taken on behalf of the Central Government that the writ petition was barred by Martial Law Regulation No. 72 the learned Judges have interpreted the phrase "for anything done or to be done which occurs in section 2 of the Martial Law Regulation No. 72 as meaning "to guard against" any such things. Ordinarily in legal parlance, the preposition "for" when used in relation to a legal proceeding suggests either procurement i.e. to obtain some relief, or some form of relationship in the sense of the phrase "in respect of". The meaning adopted by the learned Judges is one of a number catalogued in Webster's Dictionary, and is clearly of a special nature, arising out of the use of the word "for" in a special context. Section 2 expressly bars proceedings, and these would include proceedings to avoid the result of Governmental action, whether taken or apprehended But that does not exhaust the context of the phrase "for any?thing done or to be done" by any means. In the case before the learned Judges, the relief sought was on the basis of the law as it then stood, to oblige the Government to perform its statutory duty of paying the proceeds of the sale of their shares to the owners. This prayer was clearly one for procuring and action which, in the circumstances specified, fell to be done by the Government under the law. The proceeding was undeniably "for (something) to be done", and was barred by the Martial Law Regulation. It appears to us that the intention of Martial Law Regula?tion No. 72 was to exclude altogether the jurisdiction of the Courts with respect to the functions of the Central Government under the Security of Pakistan Act, and we would hold that no writ lies to force the Government to perform its duty under the Act. Costs in each proceeding to be borne by the parties themselves. S. A. RAHMAN, J. -I agree generally with the judgment of my learned brother, Kaikaus, J. in this case and concur in the order proposed by him, but would like to add a few remarks, to make my own position clear. In Dosso's case (PLD1958 SC(Pak.)533=19582PSCR180), the actual decision of this Court was that Fundamental Rights as embodied in Chapter II of the late Constitution, were no longer part of the law of the land, after the promulgation of the Laws (Continuance in Force) Order, 1958 That question does not fall for determination in the instant ease, in the face of the pre-emptory provisions of the Martial La\e Regulation No. 72 and the fact that the vires of Ordinance XXIII of 1959 are not being assailed before us. The question is an important one and not free from difficulty. We did not hear the learned Attorney-General fully on this aspect of the case and if Dosso's case requires reconsideration, in this respect, the question must be reserved for decision for a more appropriate occasion. It is to be noted that this Court re-affirmed the decision in Dosso's case in Province of East Pakistan v. Md. Mehdi Ali Khan and others ((1959) 2 P S C R 1=P L D 1959 S C (Pak.) 387). If, however, Dosso's case is understood to lay down inci?dentally that the word "governed" occurring in clause (1) of Act. 2 of the Laws (Continuance in Force) Order, 1958, excludes legislative functions from its scope, I must respectfully dissent from that view. " As has been pointed out by my brother Kaikaus, J., the President himself has repeatedly, acted on the assumption that the provisions of the late Constitution with regard to the areas of legislative competence of the Central and Provincial authorities are still intact, subject of course to the variation introduced by the President's Proclamation of the 7th October 1958 and the Laws (Continuance in Force) Order, 1958. Article 4 of the latter Order too contains intrinsic evidence of the soundness of this position in so far as it envisages the possibility of amendment of laws other than the late Constitution, lay "competent authority" an expression which can only be invested with meaning by. reference to the abrogated Constitu?tion of 1956. I need not go to the length of saying however that the position obtaining under subsection (2) of section 8 of the Indian "Independence Act, 1947, via-a-via the Government of India Act, 1935 was identical with that of Art. 2 of the Laws (Continuance in Force) Order, 1958, in the context of the late Constitution. I would also prefer to reserve my opinion on the question whether there is any inconsistency or not between they provisions of Arts. 2 and 4 of the last-named Order. A. H.??????????????????????????????????????????????????????????????????????????? ?????????? Order accordingly.