P L D 1975 Lahore 1219 (PLP)

This writ petition is directed against Notification No. 18/14‑H‑Spl‑11/72 dated the 2nd May 1974 (Annexure'A') and No. 18/14‑H‑SPI/II/72 dated the 3rd August 1974 (Annexure 'B') issued by the Punjab Government and published in the Punjab Gazette dated the 13th September 1974.

2. By the first notification the Government of the Punjab, in exercise of the powers conferred by subsection (1) of section 16 of the Criminal Law ,Amendment Act, 1908, declared the Free Masons to be an unlawful association. By the second notification issued under subsection (i) of section 17‑A of the same Act, the Government notified that :‑ (1) Free Masons Lodge, Charing Cross, Lahore, (2) Free Masons Lodge No. 1307, Sher Shah Road, Multan Cantt ; and (3) Free Masons Lodge 307, Hyder Road, Rawalpindi, are being used for the purpose of unlawful associations of Free Masons. 13oth these notifications are reproduced below :‑ "The 2nd May 1974 No. 18/14‑H‑Spl‑11/72.‑Whereas the Government of the Punjab on the basis of material in its possession is of the opinion that the activities of the association known ac Free Masons constitute a danger to public peace. :Now, therefore, in exercise of the powers conferred by subsection (1) of section 16 of the Criminal Law Amendment Act, 1908, the Government of Punjab is pleased to declare the Free Masons to be unlawful associa tions. H. M. Akram, Secy. The 3rd August 1974 No. 18/14‑H‑Spl‑II/72.‑Whereas the Government of the Punjab, on the basis of material in its possession is of the opinion that the Masonic lodges whose detail is given below are used for the purpose of unlawful associations. Now, therefore, in exercise of the powers conferred by subsection (1) of section 17‑A of the Criminal Law Amendment Act, 1908 (Act XIV of 1908) the Government of the Punjab is pleased to notify these places which are being used for purpose of unlawful associations of Free Masons :‑

1. Free Masons Lodge, Charing Cross, Lahore.

2. Free Masons Lodge No. 1307, Sher Shah Road, Multan Cantt.

3. Free Masons Lodge 307, Hyder Road, Rawalpindi. Tariq Siddiqi, Secy:.

3. The Free Masons came into existence as an Association in the 17th Century. This Association was established in the Sub‑Continent of India in 1858 in Delhi and Calcutta. In Lahore it owned property for the first time at Lodge Road in 1873. The Association remained in that building up to 1916. Subsequently, it purchased property at the Mall on the 27th June 1917, for a sum of Rs. 32,590, vide Annexure `C'; sale deed of that property.

4. After the establishment of Pakistan, the activities of Free Masons have been the subject‑matter of public criticism. It is for this reason that in May 1969, the Parliamentary Secretary of Home in the Central Government, reply ing to a question, had to make the following announcement on the floor of the National Assembly :‑ "Constitution guaranteed religious freedom as a Fundamental Right and no action can be taken against any individual or organisation on the basis of religion alone. Moreover, the Free Masons Organisations were not Jewish but comprise members belonging to all religions, including Muslims. Their aims were philanthropic and their oath and membership required to be loyal to the Government of the country, to abide by the laws and not to take part in politics. They had no political activities and had not come to the adverse notice of Govern ment." Again in September 1972, Khan Abdul Qayum Khan, the Minister of interior, stated on the floor of the House that :‑ "Government had no proof against the alleged subversive activities of Free Masons. Government does not propose to take any action against, this Organization." Despite these statements the criticism against the Free Masons continued; to mount.

5. It appears from the record that first the Punjab Assembly in its Session held on the 22nd July 1972, passed a resolution recommending to the Central Government that a ban should be imposed on Free Masons and their entire property should be forfeited. No material was furnished for such an action. This matter was pursued later on till the Central Government directed the Provincial Government to impose a ban upon the organi zation.

6. On the 7th August 1973, a notice was issued by the Punjab Govern ment (Home Department) to the Master/Secretary, Lodge of Hope and Preservance No. 782, Free Mason Club, Lahore, to show cause why the Pree Masons Association should not be banned under section 16 of the above Act. It was alleged that the Club was being used for propagating beliefs and holding secret meetings which constituted a danger to the public peace. A reply was submitted on the 20th August 1973, in which one of the: material points raised was that no basis was given in the notice for satisfaction. of the Government under the above provisions of law. Thereafter, the new impugned notifications were published simultaneously in the Provincial Gazette on the 13th September 1974.

7. The property at the Mall Lahore was requisitioned on the 6th: October 1973, under rule 121 of the Defence of Pakistan Rules, 1971, and it was placed at the disposal of Director, Relief and Rehabilitation Cabinet Division (Annexure `F'). Thereafter, the rent of the building was fixed at Rs. 1,000 per month on the ground that the building was "abandoned and dilapidated". This requisition was, however, withdrawn on the 16th October 1973 (Annexure `H').

8. Once again the property was requisitioned on the 22nd November 1973, under the Defence of Pakistan Rules. This time it was placed at the disposal of the D. I. G. of Police, Lahore Range, Lahore. It appears that it was needed for Islamic Summit.

9. Mr. Kabir A. Sheikh, addressed a letter to the Deputy Commissioner, Lahore, on the 9th March 1974, asking for derequisitioning of the property (Annexure `J') since according to the information given to him the order was to remain operative for about two months only. Thereafter, the notification dated the 23rd November 1973, was withdrawn on the 21st March 1974 (Annexure `K').

10. Despite this withdrawal of the requisitioning order the property was not vacated by the D. I. G. of Police. In reply to a letter sent by Mr. Kabir A. Sheikh, he promised to vacate the same after the 5th April 1974 (Annexure `L'). This promise was never fulfilled. Mr. Kabir A. Shiekh wrote letters to different authorities for delivery of vacant possession of the above premises. On the 20th June 1974, he wrote (vide Annexure'M') to the I. G. Police. On the 20th July 1974, he wrote to the Deputy Commissioner (Annexure `N'). On the 7th August 1974, he wrote to the Secretary, Home Department. He received no response. During the course of this correspon dence, orders were passed by which the Free Masons were declared to be an unlawful Association and their properties were taken over.

11. On the basis of these facts allegations of mala fide were levelled by the petitioners. The case of the petitioners is that the Free Masons Association is wedded to ideals of philanthropy and "every one who enters Freemasonry is at the outset, strictly forbidden to countenance any act which may have tendency to subvert the peace and good order of society". He is required to "pay due obedience to the law of any state in which he resides or which may afford him protection and he must never be remiss in allegiance due to the sovereign of his native land". It is alleged that there is nothing against the Free Masons and their activities in Pakistan. All Free Masons are patriots and loyal citizens of Pakistan and there has never been any occasion when public peace was disturbed due to or at the instigation of Free Masons nor is there any possibility of their activities constituting any danger to public peace. The show‑cause notice is challenged as a vague notice and it is further claimed that there is no material on which any action under sections 16 and 17‑A of the Criminal Law (.amendment) Act, 1908, would be justified.

12. A written statement was filed on behalf of the Central Government only. The above averments made in the petition except the allegation regard ing the vagueness of notice or mala fide were not denied. It was, however, claimed that the beliefs, teachings and writings of the Free Masons as given in Annexure `I' of the written‑statement are totally repugnant to the teachings of Islam, that the Free Masons Clubs have been working in absolute secrecy and it was not possible to get the inside picture of the Organization, that the Protocol XV of the Elders of Zion as contained in the book entitled "Jewish Conspiracy" published by the Social Reforms Society, Kuwait, clearly shows that the Masonic Lodges/Free Masons Clubs in Pakistan and elsewhere are working under the influence of Jews, and that the speech of Mr. Ben Gurion, published on the 9th August 1957, issue of the Jewish Chronicle, a weekly Organ of Zionist Movement in Britain, clearly reveals the feelings of enmity the Jews of Israel cherish for Pakistan. On the basis of this material it is inferred by the Government that "surely these clubs must be functioning as agents of Israel whose subversive and secret activities have penetrated deep in the Muslim World for carrying on wide spread espionage" and "these startling revelations may show that Free Masons Clubs in Pakistan are also hotbeds of intrigue against its Islamic ideology".

13. In reply to various allegations in the written‑statement, an affidavit of Mr. A. G. K. Lodhi, Master of Cabul River, Lodge No. 3225 E. C. Trans port House, Egerton Road, Lahore, was filed. He refuted the charges about the belief of the Free Masons being repugnant to Islam. It was admitted in the affidavit that the Jews of Israel cherish feelings of enmity against Pakistan but it was denied that Free Mason lodges in Pakistan are hot‑beds of intrigues against its Islamic ideology. It was also denied that Freemasonary has a link with Jews and is controlled by and works under the guidance of Jews. The book entitled "Jewish Conspiracy" was condemned as an unauthentic and spurious document. It was denied that there was any Central Administra tion in respect of Freemasonary. It was deposed that most of the countries have their own independent Lodges with distinct Constitutions and Laws. According to the affidavit, all the Freemasonaries in Pakistan were faithful to the Country. It was stated that this can also be said about other Muslim Countries like Turkey, Iran, Jordan, Kuwait, Lebanon, Uganda, Tanzania, Nigeria, Sudan, Zambia and other African Countries where Free Mason lodges exist. It was stated that secrecy was observed in the meetings of Free Masons but this is a recognised practice in all organizations where outsiders are not allowed to attend their meetings. It was also asserted that the Free Mason is a peaceful subject and must respect the law of the land and conduct himself as a good citizen. There was no instance in over a century existence of this Society where the Free Masons have indulged collectively or individually in any act prejudicial to public peace.

14. This writ petition was admitted to consider inter alia, the following contentions :‑ (1) Criminal Law Amendment Act XIV of 1908 under which action has been taken is no longer good law in view of the Fundamental Rights to form association as guaranteed by Article 17 of the Consti tution ; (2) There was no material on which such order could be passed and it is open to this Court to judic ally review and determine the question whether the opinion of the Government formed under section 16 and action taken under section 17‑A of the Act were legally justified ; (3) The notice was vague and no reference was made to any material on which the Government had based its opinion ; and (4) The order was mala fide.

15. In support of the first point about the invalidity of the Criminal Law Amendment Act, 1908, on account of its conflict with Article 17 of the Constitution of Pakistan, the learned counsel for the petitioners relied upon Abul a'la Maudoadi v. Government of West Pakistan (PLD 1964 SC 673). In that case also two similar notifications under sections 16 and 17‑A of the Criminal Law Amend ment Act, 1908 had been promulgated declaring Jamaat‑e‑Islami to be unlawful association and specifying places used for the purpose of said Jamaat, thereby enabling the District Magistrate to take possession of such places. Action was simultaneously taken in East and West Pakistan. The High Court of East Pakistan held that Act of 1908 was violative of Funda mental Right guaranteed by the Constitution and although it was legal at the time when it was published, it hid become void and unenforcible after the promulgation of the Fundamental Rights. The action taken thereunder could not be taken as a transaction past and closed prior to the promulgation of the two notifications. The majority of Full Bench of the High Court of West Pakistan, however, took a different view on all the points. Only Waheeduddin Ahmed, J. held that since after the promulgation of the notification with effect from 10th January 1964, the Fundamental Rights were incorporated in the Constitution, the Act of 1908 became void as it was in conflict with Funda mental Right No.

7. He was of the opinion that the notifications were also not protected after the amendment in the Constitution as they do not represent a transaction past and closed. Despite these findings he declined to exercise Jurisdiction under Article 98 of the Constitution of 1962 on the ground that the order was likely to become ineffective on the taking of some remedial steps. The decision of the Dacca High Court was challenged by the Province of East Pakistan while the decision of the West Pakistan High Court was impugned in i~ppeal by Syed Abul A'la Maudoodi and others. The Supreme Court agreed with the decision of the High Court of East Pakistan and allowed the appeal of the appellants against order of the High Court of West Pakistan. Their Lordships disagreed with the ultimate order of Waheeduddin Ahmed, J., refusing to exercise jurisdiction under Article 98 of the 1962 Constitution. It was pointed out that "if such a view were to preve..'‑1, then in no case could an existing statute which was inconsistent with the exercise of any Fundamental Right guaranteed by the Constitution, ever be successfully challenged" and "it would have the effect of turning Article 98 of the Constitution into a dead letter so far as matters of this nature are concerned". Their Lordships held that the provisions of Act XIV of 1908 were viola tive of the exercise of the Fundamental Right of forming associations, and being inconsistent with Fundamental Right No. 7 they must be condemned as imposing unreasonable restrictions on that right. In this respect the provisions of the Act of 1908 were contrasted by the provisions of Political Parties Act III of 1962, and it was observed "even where a political party is created such as would endanger the security or integrity of Pakistan, the Legislature in its wisdom has thought it fit to provide in this Act that no action should be taken unless the highest tribunal in the country has first delivered its verdict on the questions raised. Judged in the light of this criterion, the 1908 Act confers a naked arbitrary power on a Provincial Government to put an end to all activities of a Political party and thus to virtually kill it on an ex parte and one‑sided view of its activities. This 1 unguided discretion is subject to no check, judicial or otherwise and has the potentialities of becoming an engine of suppression and oppression of an opposition political party, at the hands of an unscrupulous party in power". It was urged before their Lordships on behalf of the Government that the impugned notifications in that case having been promulgated before the incorporation of Fundamental Rights by amendment in the Constitution of 1962, they should be regarded as a transaction past and closed and were not affected by the finding that the Act of 1908 had become void. In this context their Lordships considered the meaning of word "void" and repeated the dictum laid down in the Province of Pakistan v. Md. Mehd Ali Khan (P L D 1959 S C (Pak.) 37), that when it is said that a particular existing law has become "void" 'owing to its conflict with a Fundamental Right, it does not mean that it was ab initio void, or that it was effaced from the statute book. It only means that such a law becomes unenforceable so long as a conflict with a Fundamental Right exists and if the Fundamental Right for some reasons or the other disappears, the! law would become operative again ; it is really a state of hibernation rather; than one of death. Applying this principle it was held that the effect of the' notification was not exhausted before the promulgation of the fundamental Right and that the impugned notification stood condemned alongwith the Act of 1908 and could not be allowed to negate the Fundamental Right of formation of an association solemnly assured by the Constitution. It was suggested on behalf of the Government that the declaration of] law as void on account of its conflict with a constitutional provision, should entail consequences similar to those of repeal of statute. This argument did not find favour with their Lordships. It was held that "it would therefore, not be correct to regard the offending Act to be still available for giving effect to liabilities incurred under the Act before the promulgation of the Funda mental Rights. The word `void' clearly implies that its provisions have become totally unenforceable to the extent of its repugnancy to the Constitu tion".

16. This authority so far as it goes is on all fours with the facts of the present case Article 17 of the Constitution is similar to Fundamental Right No.

7. It provides that :‑ "(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order. (2). :' With the enforcement of this Fundamental Right the provisions of sections 16 and 17‑A of the Act of 1908 are hit by this Article and being in conflict with the same have become void.

17. This principle was not contested by the Deputy Attorney‑General appearing on behalf of the Central Government and the Advocate‑General of the Punjab, representing the other respondents. They, however based their case upon the principle of transaction past and closed.

18. In order to understand this point it is necessary to refer to some other constitutional provisions and actions taken thereunder. Article 232 of the Constitution provides that :‑ "(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by way of external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency. (2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force :‑ (a) Parliament shall have power to make laws for a Province, or any part thereof with respect to any matter enumerated in Part II of the Federal Legislative List or the Concurrent Legislative List or with. respect to any matter not enumerated in either of those Lists, as if it were a matter specified in Part I of the Federal Legislative List ; (b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised ; and (c) . Article 233(1) provides that :‑ (1) Nothing contained in Articles 15. 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force." Similarly sub‑Article (2) of Article 233 provides that;- "While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any hart of Pakistan." A proclamation of Emergency was issued during Indo‑Pakistan War of 1971 on the 23rd November 1971. This Proclamation was continued by Article 280 of the Constitution which provides that this Proclamation shall be deemed to be a Proclamation of Emergency issued under Article 232, and for the purposes of clause (7) and clause (8) thereof to have been issued on the commencing day, and any law, rule or order made or purporting to have been made in pursuance of that Proclamation shall be deemed to have been :validly made. By Notification No. F‑24‑1/73 dated the 15th August 1973, issued under `Sub‑Article (2) of Article 233 of the Constitution the right to move any Court for the enforcement of inter alia, Article 17 was suspended for the period .during which the Proclamation was in force. This notification was, however, revoked with effect from the 14th August 1974.

19. The argument of the learned Deputy Attorney‑General as adopted by the learned Advocate‑General of the Punjab on the basis of Article 233 of the Constitution is two‑fold. Firstly, it was urged that the action having been taken on 2‑5‑1974 and 3‑8‑1974, when the enforcement of Article 17 was under suspension, such action could not be invalidated by the restoration of the right to enforce Fundamental Right. Secondly it was argued that the provisions of the two Sub‑Articles of Article 233 dealt with two different situations. While the affect of revocation of notification under Article 233 is that the embargo placed by the notification upon enforcement of Funda mental Rights through Court was lifted, this revocation did not curtail the operation of Article 233(1) which continues the effect of administrative action, taken during the period of Emergency. The withdrawal of the notification issued by the President under Article 233 (2) would not, therefore, be of any: avail to the petitioners.

18. The first point is covered by the case of Abul A'la Madoodi in which their Lordships refused to apply the principle of transactions past and closed to a case where on account of its conflict with the Fundamental Right the provisions of the Statute had become void. Their Lordships word of tile view that the effect of the notification continues from day to day and is not exhausted before the promulgation of the Fundamental Rights: Consequ ently, whenever these Rights are available the notification can be struck down as void alongwith the statute under which it was issued.

19. The Deputy Attorney‑General tried to distinguish the present case from the case of Abul A'la Maudoodi. He argued that in the case before the Supreme Court the Fundamental Rights were enforced by a constitutional amendment sometime after the impugned notification under sections 16. and 17‑A of the Act of 1908 had been published in the Gazette. In this case the Fundamental Rights were a part of the Constitution on the date when the orders under sections 16 and 17‑A Were passed but they were not enforceable on account of a notification under Article

233. I confess my inability to appreciate this distinguishing feature. In both cases whether the Fundamental Rights are enforced after the impugned action under the above section of the Act of 1908 or whether having been once enforced they are in a state of suspension under Article 233 of the Constitution the principle would remain the same that the effect of notification continues from day to day and is not exhausted before the promulgation or restoration of Fundamental Rights. In case of suspension, these rights remain in a "state of hybernation rather than one of death" or in a state of temporary eclipse and they become alive and operative no sooner the. notification suspending them under Article 233 is revoked.

20. Assuming that the concept of transaction past and closed may be invoked in a case where the action is taken during the period of temporary eslipse or effacement of Fundamental Rights, that principle is not applicable to this case. The impugned notifications were dated 2nd May 1974 and 3rd August 1974, but they were published in the Punjab Gazette on the 13th: September 1974, after the Notification issued by the President under Article 233(2) suspending the enforcement of inter alia Article 17 of the, Constitution ways withdrawn and the ban on the enforcement of Fundamental Rights under that Article was removed. Both sections 16 and 17‑A of the Act of 1908 provide for a declaration to be made there under by notification in the official Gazette. The declaration about Free Mason Association being unlawful or the notification about the property of this Association being used for the purpose of unlawful association could only be operative from the date of notification and not from the date when these notifications were signed or issued by the Government. In the present case the notifications were issued after the revocation of the notification issued by the President under Article 233(2) when the ban on enforcement of Fundamental Rights had been removed and sections 16 and 17‑A of the Act of 1908 had become void being in conflict with Article 17 of the Constitution. These notifications were: therefore, issued under a void law and were without lawful authority. See Muhammad Aslam v. The Crown (1), Mian Akbar Hussain v. West Punjab Government (P L D 1954 Lah. 188) and Province of East Pakistan v. Hassan Askary (P L D 1971 S C 82).

21. The second contention is correct only to the extent that the provisions of the two Sub‑Articles of Article 233 are not co‑extensive. Article 233(1) declares that notwithstanding the provisions of Articles 15, 16, 17, 18, 19 and 24, the `State' as defined in Article 7, can make any law or take any executive action which it would. but for the provisions of the said Articles, be competent to make or to take, and thus the law or action shall be effective till the Proclamation of Emergency is revoked or has ceased to be in force. Sub‑Article (2) however deals with the ban on enforcement of Funda mental Rights to move any Court and the President can impose that ban by notification not only in respect of Fundamental Rights specified in Sub- Article (1) but also other Fundamental Rights. The distinction between these two provisions was considered in Mrs. Habiba Man! v. The Federation of Pakistan (P L D 1974 Lah. 153). At page 168 of the report is the discussion about this .distinction. It was held "A close reading of Sub‑Article (1) of Article 233 shows that under it the restriction against law making or taking any executive action which it would not be competent to make or to take, in view of the provisions of Articles 15, 16, 17, 18, 19 and 24, is removed. Thus, during the pendency of the Proclamation of Emergency the fetters created on the Legislative and Executive powers by virtue of the above Articles of the Constitution are removed and these Articles of the Constitution may be considered to be non‑existent so long as the Proclamation of Emergency is in force. However the position with regard to the Articles of the Constitution, for the enforcement of which the right to move any Court has been suspended by an Order of the President is different. In such cases, the Fundamental Rights, referred to in the order, are not suspended, only the right to move the Court for enforcement of these rights is suspended."

22. That case related to Article 10 of the Constitution. It was held that Fundamental Rights under that Article continues to be an existing right and the restriction on the power of the State to make any law or to take any executive action in contravention of the said right continues. One of the reasons was that Article 10 was not enumerated as one of the Articles which could be considered to be non‑existent under Sub‑Article (1) of Article

233. The same view about similar provisions in the Constitution of 1962 was taken in Khair Bakhsh v. State (P L D 1968 Quetta 62). In a recent case of Ch. Manzoor Elahi v. Province of Baluchistan etc. (P L D 1975 S C 66), their Lordships of the Supreme Court also arrived at the same conclusion as the Division Bench of this Court in Habiba Mani's case. I, therefore, agree with this part of the argument that these two Sub. Articles (1) and (2) of Article 233 are not co‑extensive.

23. But this does not re‑inforce or even justify the argument of the Deputy Attorney‑General that the impugned notifications are in the nature of executive actions of the Government during the period when Proclamation of Emergency is in force and they continue in force by virtue of Article 233(1) of the Constitution notwithstanding that conflict with the Fundamental Rights enumerated, therein.

24. Article 233(1) saves the powers of the State to make any law in violation of the Fundamental Rights granted by Articles 15, 16, 17, 18, 1,9 and 24 during the operation of the Proclamation of Emergency. But such law shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force. It also allows the State to take any . executive action during the period of Emergency which may by violative of the provisions of the Fundamental Rights. It was conceded by the learned Deputy Attorney‑General that the power to make laws in conflict with the Fundamental Rights under Sub‑Article (1) only relate to future legislation. His argument however, was that since specific powers to take executive action repugnant to the provisions of Inter alga Article 17 of the Constitution have been conferred by Sub‑Article (1) of Article 233, despite the fact that the clog on enforcibility of the Funda mental Rights imposed under Article 233 (2) has been removed, the validity of the impugned notifications can be vindicated by the provisions of Sub‑Article (1) of Article

233. The argument though ingenious is without force. Article 233(1) does not save every executive action. It saves only such actions as are valid and lawful. The Emergency provisions of the Constitu tion do not confer on the executive a wholly arbitrary executive power. The exercise of power by the Executive must be justifiable in law. Every executive act of the Government must be backed by law. This is emphasised and guaranteed by Article 4 of the Constitution which provides that "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law ; and (c) no person shall be compelled to do that which the law does not require him to do." Similar provisions in Article 2 of the 1962 Constitution was explained by ‑the Supreme Court in Mfr Ahmad Nawaz Khan v. Superintendent Jail, Lyallpur (P L D 1966 S C 357). It was held that Article 2 was intended to negative any claim by a Government that any category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. Claims have in the past been made by the Government that a particular act which was challenged was an act of State and was, therefore, not liable to be challenged. The vie w taken by the Courts has been that if an act was in fact an act of State it would not be subject to law, but that there could be no act of State with respect to citizens of a country and that in respect of citizens the Government bas only such powers as are granted to it by the Municipal Law, that is, the law of the country. The acts of the Government, however, in relation to other Governments or sometimes in relation to nationals of other States or in relation to enemy aliens are not subject to law. Article 4, therefore, fetters the powers of the executive within the confines of Municipal Law. Article 233 (1) does not remove the fetters placed by this Article on the powers of the Executive Authority of the Federation or the Provinces Article 4 remains in force during the period where the proclamation of Emergency is in force. Any executive action taken under Article 233(1) must therefore be subject to and valid under the provisions of that Article. This point was discussed in the judgment of my Lord Mr. Justice Yaqub Ali in Ch. Manzoor Elahi v. Province of Baluchistan etc., which has already been referred to in another context. His Lordship first dealt with the scope of the legislative powers under Article 2?3(l) and observed:‑ "When such a proclamation is in force the State may make temporary laws repugnant to Fundamental Rights 15, 16, 17, 18, 19 and 24 which secure for the citizens freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech and protection of property rights. Thus even in case of Emergency the State cannot make laws which are violative of the remaining Fundamental Rights including Rights contained in Article 9 and Article 10." This principle was applied to Article 4 also. It was observed :‑ "A proper analysis of the constitutional provisions, mentioned above, brings out that Fundamental Rights are so firmly entrenched in the Constitution that even while the Proclamation of Emergency is in force every citizen will, as provided in Article 4, enjoy the protection of law and be treated in accordance with law." Now Article 8 declares that any law, in so far as it is inconsistent with Fundamental Rights shall, to the extent of inconsistency be void. It also prohibits the making of any law which takes away or abridges such rights and confers a shield of inviolability on these rights by providing that future legislation made in contravention of this prohibition shall to the extent of contravention be void. This Article deals separately with existing and future legislation. Subject to its scope Article 233 also deals with existing and future laws. The first Sub‑Article, as seen above and conceded by the learned Deputy Attorney‑General deals with the exercise of legislative power in future after the promulgation of Proclamation of Emergency and during the period when the same remains effective. During this period it allows the passing of temporary laws repugnant to some of the Fundamental Rights as specified in Articles 15, 16, 17, 18, 19 and

24. To this extent it is an exception to Article 8(2). Sub Article (2) on the other hand renders the Fundamental Rights specified in the notification issued by the President unenforceable and affects existing laws equally with future laws. The revocation of this notifica tion during Emergency restores the power of the Courts to declare and treat law as existing on the day of issuance of Proclamation of Emergency, void to the extent they are inconsistent with the Fundamental Rights. It only leaves unscathed the laws enforced during Emergency to the extent that they contravene Fundamental Rights specified in Sub‑Article (1) of Article

233. Any executive action taken under such laws will be protected under Article 4 also and will have a legal cover for their validity. But this cannot be true about executive action which is taken under an existing law which is or can be declared void by the Court. Such an executive action will be hit by the provisions of Article 4 which remain in force during the period of Emergency also and can have no legal basis. I agree with the argument of the learned counsel for the petitioners that since the Fundamental Rights under Chapter I of Part II of the Constitution and the right of individual to be dealt with in accordance with law are so firmly entrenched in our Constitution the provisions of Article 233 must be strictly construed as they make an inroad on the normal working of the Constitution. I am therfore firmly of the view that the protection afforded to executive action by sub‑Article (1) of Article 233 cannot extend to actions taken under a void law. It saves only that executive which is justifiable under a valid law.

25. In view of the finding that the impugned notifications are without lawful authority it is not necessary to consider whether there is material on record to justify the forming of opinion that the activities of the Free Masons constitute a danger to public peace, although in view of the dictum settled in Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373), Abdul Baqi Baloch v. Government of Pakistan (P L D 1968 S C 313), Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD1969SC14), as canvassed by the petitioners' learned counsel and conceded by the learned Deputy Attorney‑General that the opinion of the Government is now subject to judicial review at least to the extent of determining on the basis of Government record where there was nexus available to the authority for such a drastic action. I cannot, however, refrain from showing that the `grounds' to justify the action urged at the Bar, are not sufficient to warrant the forming of opinion. It is urged that the Free Masons hold and propagate religious beliefs which are contrary to Islam. Reference was made to certain beliefs which are described on Annexure `I' to the written statement. This is denied in the counter‑affidavit. There is no proof about the correctness of Annexure `I'. The different beliefs described therein are said to have been quoted from 6 books given in the Bibliography attached to the written statement but despite the fact that several opportuni ties were afforded to the Deputy Attorney‑General, the books were not produced. Ultimately he made a statement that no Officer in the Interior Ministry had seen or read those books. But assuming that the allegation about the religious beliefs is correct it can hardly be a basis for formation of Government's opinion under section 16 of the Act of 1908. It is not denied that the beliefs of the Free Mason, if any, are not propagated beyond their limited circle. The Free Masons do not admittedly propagate their beliefs, if any, in public. If certain beliefs are propagated in this circle in secret meetings, I do not see how they constitute danger to public peace. In fact, the main blame against them is that they hold secret meetings that are not accessible to any outsider. There is no allegation on record that the Free Masons ever indulge collectively or individually in any act constituting or likely to constitute breach of public peace. Admittedly they have never been guilty of any overt act. In these circumstances, mere organizational secrecy, in the absence of any law making it incumbent upon their association to make a disclosure of what happens in its meetings, cannot be sufficient material for the formation of opinion that their activities are danger to or are likely to cause breach of public peace. The other ground taken is that the book entitled "Jewish Conspiracy" clearly shows that the Masonic Lodges/Free Masons Clubs in Pakistan and elsewhere are working under the influence of Jews. The last ground taken is that since Mr. Ben Gurion in his speech revealed the feelings of enmity of the Jews of Israel cherished for Pakistan, these clubs must be functioning as agents of Israel whose subversive and secret activities have penetrated deep into the Muslim World for carrying on widespread espionage.

26. The hostility of the Zionists towards Pakistan for its ideology and its all out support to the cause of Arabs is well known and is admitted by the petitioners too. The book "Jewish Conspiracy" is the only material which may arouse the suspicion of the Free Masons being a tool of the Zoinists. But an opinion can hardly be formed on a mere suspicion. Opinion based on mere suspicions and conjectures would be too arbitrary. It would be necessary to investigate and explore the antecedents of the Free Masons, their sympathies towards the Jewish cause and aspirations and their political views.

27. I am therefore of the view that the material on record does not in any way justify the forming of an opinion under section 16 of the Act of 1908. It appears that the action against Free Masons has been taken on account of demand from certain quarters and the resolutions of the Provincial Assembly. But this does not justify taking action under a void law and without collecting material which may stand objective test of judicial review. The action should follow valid legislation and investigation.

28. There is force in the argument of the learned counsel for the petitioners that the notice given to them to show cause against the purported action is extremely vague; it does not convey any of the points which have been raised in the written statement. Consequently the action could not be vindicated on this notice. But this irregularity does not vitiate the proceedings since the reply to the notice touches almost every point.

29. The case of malice or male fide is not established. The object is not to take over or to remain in possession of the petitioners' property. It appears plainly from the record that the action has been taken on account of some public pressure which the popular Government found it difficult to resist.

30. I allow this petition with costs and quash the notifications Annexures 'A' and `B' as having been issued without lawful authority. The ,Government of Punjab is directed to notify the cancellation of these notifications. Petitions accepted.