THE ALL PAKISTAN LECAL DECISIONS (PLP)

MUSHTAQ HUSSAIN, C. J.-Sadiq Hussain Qureshi petitioner is said to have held the offices of Governor and Chief Minister, Punjab, respectively, the former from 12-11-1973 to 14-3-1975 and the latter from 15-7-1975 to 5-7-1977, when Martial Law was declared in the country by the Chief Martial Law Administrator.

2. Since Martial Law had been proclaimed inter alia for holding free and fair elections for the purposes of restoration of democratic institutions under the 1973 Constitution and since there was widespread demand from the people of the country that those who had participated in politics and had misused their position should be called to account so that only such persons as had a clean record could be allowed to seek the mandate of the people and be returned to the various seats in the National and Provincial Assemblies, the Chief Martial Law Administrator promulgated Martial Law Order No. 31 which was published in the Gazette of Pakistan, Extraordinary, Part I of the 26th of January, 1978.

3. Article 3 of this Martial Law Order empowered the Chief Martial Law Administrator to establish such number of Disqualification Tribunals as he may deem necessary which will consist of a person who is or has been a Judge of the High Court and an Officer of the Armed Forces not below the rank of Brigadier or equivalent, which shall, on receipt of a reference in writing from the Chief Secretary, charging a holder of a representative office with misconduct, proceed to enquire into it. "Holder of representative office" and "misconduct" are defined in Article 2 of the Order.

4. The petitioner received notice dated the 25th of March, 1978 from the Disqualification Tribunal No. 5 (constituted under Martial Law Order No. 31 of 1978) requiring him to appear before it on the 9th of April, 1978, for further proceedings. This notice is said to have been issued in pursuance of a reference having been made by the Chief Secretary of the Province of Punjab to the Tribunal under para. 4 of the said Martial Law Order.

5. On receipt of the notice, the petitioner unsuccessfully challenged, by way of a writ petition before this Court the validity of Martial Law Order No. 31, and the legality of the assumption of jurisdiction by the Tribunal. This writ petition was dismissed in limine.

6. The petitioner appeared before the Tribunal, challenged the validity of Martial Law Order No. 31 and objected to assumption of jurisdiction by it.

7. These pleas, however, did not find favour with respondent No. 2, and on the 9th of April, 1978, the petitioner was served with a charge-sheet containing 11 charges and requiring him to show cause why he should not be disqualified for a period of seven years from being elected or chosen as a member of Parliament or a Provincial Assembly.

8. The petitioner submitted his reply to the charges to the best of his ability as he could not properly inspect the record in the absence of counsel and because of his physical infirmity which makes it impossible for him to take notes in his own hand.

9. The Tribunal then recorded "a better statement" of the petitioner and proceeded to examine witnesses. During the proceedings the Tribunal was assisted by an official of the Prosecution Branch of the Police while the petitioner had to fend himself. The petitioner made written submissions in his defence on the conclusion of the recording of evidence.

10. The petitioner was found guilty on four out of eleven charges by the said Tribunal and the findings were published in the Gazette of Pakistan dated the 5th of August, 1978. He has been consequently disqualified for a period of seven years from being elected to the Parliament or a Provincial Assembly.

11. Aggrieved by the adverse findings of tile Tribunal and alleging that there was no other remedy available to the petitioner, he has invoked the Constitutional jurisdiction of this Court for having the findings of the Tribunal and the disqualification with which the petitioner has been clothed by respondent No. 2 declared as without lawful authority and of no legal effect. He has further prayed for a declaration that "action, adverse to the interest of the petitioner cannot lawfully be taken on the basis of the findings recorded by respondent No. 2".

12. When the petition came up for hearing in `Kacha Peshi' before one of us, learned counsel appearing for the petitioner was informed that the Chief Martial Law Administrator enjoyed the same immunity as the Prime Minister or President under the Constitution ,as a result of the effect of the judgment of the Supreme Court in Nusrat Bhutto's case (PLD1977SC657) and no notice could be issued to him. Mr. Mumtaz Hussain, Advocate, for the petitioner agreed and submitted to this view expressed by the Court, orally prayed that the name of the Chief of the Army Staff and Chief Martial Law Administrator, respondent No. 1, be deleted from the array of parties and that the Federation of Pakistan be substituted instead. Notice was issued to the Federation of Pakistan and respondents 2 and

3. The Attorney-General was asked to assist the Court. In view of the importance of the points involved, the Chief Justice referred the case to the present D. B. for being heard and disposed of.

13. When the case came up for hearing, learned counsel for - the petitioner submitted that his client had been held guilty either wholly or partly in respect of charges 2, 8, 10 anal 11, and that the decision on charge 11 was made subject to the findings of the High Court in Writ Petition No. 3157 of 1977.

14. Learned counsel for the petitioner informed us that he would address on the following three points: (i) The findings in respect of charges 2, 8, 10 and 11 are based on no evidence. In the alternative, no reasonable person properly instructed in the relevant law could arrive at these conclusions. (ii) The recording of evidence by the Tribunal regarding the improper posting of guards at the petitioner's private residence at Shadman and that of his mother, and the findings or observations recorded in respect thereof are wholly without jurisdiction. (iii) Reference of the case to a Military Court is wholly without lawful authority and the Court will have no jurisdiction to proceed against him. In any case, Article 248 was a bar to the issuance of any process against the petitioner.

15. Learned counsel decided to begin with submissions on ground No.

3. The plea of the learned counsel for the petitioner is that since the petitioner was holding office as Governor at the time the alleged misconduct is said to have been committed, no Tribunal or Court has any jurisdiction to issue any process to him because of the bar contained in Article 248 (I) of the Constitution. This article runs as follows: "248.-(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a . Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions Provided that nothing in this clause shall be construed as restricting the rights of any person to bring appropriate proceedings against the Federation or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. (3) No process for the arrest or imprisonment of the President, or a Governor shall issue from any Court during his term of office. ??????????? (4) ?????? " It was submitted that although the word 'Tribunal' has not been mentioned in this Article, the functions being performed by the Disqualification Tribunal are that of a Court in every respect and, therefore, the proceedings impugned before this Court do fall within the mischief of Article 248 (1).

16. There could be possibly no quarrel with the proposition that the] Disqualification Tribunal has all the trappings of a Court and in fact is al q Court for more than one reason.

17. Article 175 of the Constitution provides that "there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law". The Disqualification Tribunal has been established by law that is to say, Martial Law Order No. 31 and as has already been indicated, is performing the functions of a Court i.e. there are two parties before it, there is a lis before it, it is presided over by a Judge of a High Court who is assisted by a Brigadier of the Army. In case of difference of opinion, the matter is to be referred to a Judge of the Supreme Court and by-far the most important right of a citizen which may be dubbed as inferior only to his right to hold property and to his life and liberty i.e. the right of contesting an electron to the National or Provincial Assemblies is directly involved. In case there is enough material to substantiate the charges against a respondent, the Tribunal has the power to disqualify him from being a candidate for election. The mere fact that the forum is known as a 'Tribunal' and not as a 'Court' does not in any marine detract from its status as a Court. The learned Attorney-General rightly agreed that the Tribunal was a Court and this Court could proceed on that assumption.

18. Thus since it is a Court, Article 248 of the Constitution is attracted lp to its jurisdiction in the exercise of its authority.

19. It was submitted that the immunity though qualified, and the qualification is so minor, and for all practical purposes the immunity is wide enough to cover all exercise of powers and performance of functions and acts done or purported to be done in the exercise of those powers and performance of those functions unless it can be shown that whatever was done, was done mala fide and powers etc. were used merely as a cloak.

20. The question is whether the first sub-Article of Article 248 grants a blanket protection to the dignitaries mentioned in it even if there are allegations of misconduct even after they have ceased to hold that office or does the immunity run co-extensively with the holding of the office as such. The stand of learned counsel for the petitioner, of course, is that this protection is for life and howsoever heinous might be, the nature of the misconduct attributed to a person who has bad one of the offices named in Article 248 he cannot be called to account even after he has ceased to hold that office. In other words, holders of these offices can ride with a carriage and four through the rights of others and the rules and the law pertaining to the performance of their functions with the knowledge that they are completely immune from attack. Prima facie this does not stand to reason.

21. It is not for the first time that immunity, as contained in Article 248, has been granted to holders of high offices of State. We may refer in this connection to section 306 of the Government of India Act, 1935, which deals with protection given to Governor-General, Governor or Secretary of State. It runs as follows: "306.-(1) No proceedings whatsoever shall lie in and no process whatsoever shall issue from any; Court in Pakistan against the Governor-General or against the Governor of a Province, whether in a personal capacity or otherwise, and, except with the sanction of the Governor-General, no proceedings whatsoever shall lie in any Court in Pakistan against any person who has been the Governor-General, His Majesty's Representative for the exercise of the functions of the Crown in its relations within the State, the Governor of the Province or the Secretary of the State in respect of anything done or omitted to be done by any of them during his term of office in performance or purported performance of the duties thereof." Since protection was intended to be afforded to the officers of State mentioned in Article 306 even after relinquishment of office, it was carefully provided in section 306 that no proceedings whatsoever shall lie against "any person who has been the Governor-General". Of course, so long as he held the office, there was a complete immunity ; the moment he relinquished it, the immunity became subject to the sanction of the Governor-General.

22. The necessity for mentioning separate category of officers who had once held the office, arose out of the fact that the meaning of the opening part of section 306, expressed as it is in the present tense, could apply only to a person who was holding the office at the time when he was sought to be made the subject-matter of the process of a Court. Similarly, in Article 248, though it has been differently worded, the immunity is for the President, Governor etc., so that they shall not be answerable for the exercise of powers and performance of functions of their respective offices etc. If a person 'A' has been a Governor of a Province and is sought to be proceeded against after he has relinquished charge and 'B' has taken over, then the process is not being issued to the Governor because the Governor is 'B' and not 'A', it is being issued to a person who has been a Governor. Not even by stretching the provisions of Article 248 to the limits of credulity could it be argued that even when 'A' has relinquished his office as Governor and there is another Governor in existence in the Province the process issued to the former was being issued to the Governor.

23. It was submitted that where it was desired to confer immunity only during the period the office was being held by a person, it was so stated in Article 248 itself and sub-Articles (2) and (3) were cited as instances of such action. It was suggested that the expression "during his term of office" occurring at the end of these two clauses was a clear indication of the fact that by their absence in Article 248(2) the framers of the Constitution wanted to make it clear that the immunity conferred by this sub-Article was not only to operate during the term of office of the incumbent but was to continue for the rest of his life.

24. This submission ignores the fact that sub-Article (2) relates to criminal proceedings while sub-Article (1) relates to accountability in respect of exercise of powers and performance of functions of their respective offices. A reference to Article 47 of the Constitution dealing with the removal of President from his office would show that such an action could be taken on the ground of "physical or mental incapacity or on a charge of violating the Constitution or gross misconduct". The power is vested under the Constitution in the two Houses of Parliament which can exercise it in a joint sitting. The accountability in case of the President, therefore, was to be in the hands of the Parliament and the jurisdiction of the Courts had to be excluded, so that the power of the Parliament became absolutely exclusive.' In this respect, therefore, Article 248(1) is more in the nature of a corollary or implementation of the provisions of Article 47.

25. In the case of the Prime Minister Article 96 provides for a vote of no-confidence for his removal from his office. Here again, a forum has been provided for dealing with a delinquent Prime Minister and for removing him from his office in consequence of a resolution passed by the National Assembly. Since such a high-powered body had been given the jurisdiction and authority to deal with the Prime Minister who was misconducting himself, it was considered to be meet and proper that during the time such F a forum was available no Court or other authority should be allowed to take upon itself to perform this duty. This forum was available only so long as the Prime Minister held the office because once he laid the rein of his office he was no longer the Prime Minister and the question of his removal did not arise. Article 248(1) of the Constitution, therefore, dealt with the Prime Minister in the same way as the President during the holding of the office.

26. There are similar provisions in Article 136 for the removal of a Chief Minister. Article 132 of the Constitution deals with the Provincial Ministers and there is a similar provision for the Federal Ministers which is contained in Article 92(3) of the Constitution.

27. It is quite clear, therefore, that Article 248 (1) is in the nature of a restraint placed on Courts in relation to acts dealing with the exercise of powers and performance of functions of the respective offices by the officers mentioned in that Article who are in office. By section 306 of the Government of India Act, 1935, such persons and, o p course it need not be reiterated here, that the persons mentioned in that section, did not hold representative offices, but were dignitaries appointed, by the Emperor of India in London. It was, therefore, thought necessary to grant them limited protection in respect of the functions performed b them which were relatable to their office even after they had ceased to hold the offices by providing that if proceedings were to be taken against them or process was sought to be issued to them from any Court after he had relinquished the office, the sanction of the Governor-General will have firs to be obtained. It has already been stated above, that section 306 as well as Article 248 are couched in the present tense and, therefore, were applicable only to those who were, at the time the protection of the Article or section was being invoked, actually holding the office.

28. The Legislature was not ignorant of section 306 of the Government of India Act, 1935, and the omission of the words "against any person who has been" from Article 248(1) clearly shows that the framers intended t limit the protection only to the period during which the dignitary concerned was serving and was thus amenable to the jurisdiction of the Parliament for any act or misconduct that he had performed.

29. The reference to Article 248(2) and (3) is not at all relevant. Su Article (2) deals with criminal proceedings while sub-Article (3) deals with process for the arrest or imprisonment of the President or a Governor. Normally, in civil proceedings process for arrest or imprisonment is not issued by a civil Court. It is for a criminal Court to do so. Since the bodie referred to above did not have the right to initiate criminal proceeding against the officers mentioned in sub-Article (2), they are not covered b sub-Article (1) and separate provision had, therefore, to be made for it. Since separate provision was being made and was intended only to apply to the President or a Governor, it was made clear that the protection shall b available only so long as the incumbent holds the office.

30. We are, therefore, of the view that Article 2480) applies to an protects the holders of the offices mentioned in that Article only during the period that they are in the saddle and once they are removed from the office or ceased to hold it for any other reason, the immunity vanishes.

31. The next leg of the submission pertaining to immunity revolves round the scope of accountability i.e. whether the protection i3 available also in respect of abuse of power and illegal acts after the person concerned has ceased to hold the office. Reference in this connection may be made to Zahoor Illahi v. Z. A. Bhutto (P L D 1975 S C 383) at page 394 where Hamoodur Rehman, C. J. as he then was, observed : "As to the scope of Article 248, we are in agreement with the learned counsel for the petitioners that each and every act done or action taken by the Prime Minister is not necessarily covered by this Article. The Article necessarily refers to his official acts and not to acts done by him in his private capacity. Only those acts are covered which he does in exercise of his powers as Prime Minister and in the performance of his functions as Prime Minister. If he has any other capacity, then he cannot claim immunity for acts done in that capacity if it has no relation whatsoever to the office of the Prime Minister.? It is true that the immunity cannot possibly extend to anything done illegally nor does the immunity protect the Prime Minister in respect of any criminal proceedings. In order to avail of this immunity it must be shown that whatever was done had some co-relation to the official functions or duties or powers of the Prime Minister . We are also in agreement with the learned counsel for the petitioners that the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law. It is, nevertheless, not possible to lay down any hard and fast rule as to what is or what is not within the powers and functions of a Minister or a Prime Minister but each case will have to be judged on its own facts and circumstances."

32. Article 248 is, therefore, nothing more than an exception to the general rule that no body is above the law and as has been pointed out in the judgment quoted above, it has to be construed very strictly.

33. In another case, Dilbar Hussain v. Khurshid Ahmad (P L D 1956 Lah.865), the facts were that the complainant, petitioner who was an accused being tried by Chaudhry Khurshid Ahmad, respondent, applied for the adjournment of the case on the ground that he might have moved the High Court for its transfer. On hearing this. the respondent i.e. the trial Magistrate is said to have Bared up and filthily abused the petitioner. When he sought to prosecute him, section 197 of the Criminal Procedure Code was cited as a bar because Chaudhry Khurshid Ahmad said that the act complained of had been committed by him while "acting or purporting to act in the discharge of his official duty". Relying upon H. H. B. Gil v. The King (AIR 1948 P C 128) the learned Chief Justice observed :‑ "The criterion for determining whether the act was covered by the protective section or whether the act complained of was such as lay within the scope of the official duty of the person concerned, it was pointed out that a Judge, for instance, neither acts nor purports to act as a Judge in receiving a bribe though the judgment may be such an act, nor does a Medical Government Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination may be such an act. In the words of the Privy Council, the test may well be whether the public servant, if challaned, can reasonably claim that what he does, he does in virtue of his office. In that particular case, the charge against the public servant was with regard to an offence under section 120‑B read with section 161, Pakistan Penal Code and it was found that no sanction under section 197, Criminal Procedure Code was necessary for his prosecution on these offences. Undoubtedly, the offending words were alleged to have been uttered by the respondent. He was sitting as Magistrate in Court and the words were spoken in the course of the trial. in which the petitioner figured as an accused. That is clearly not enough for the application of section 197, Criminal Procedure Code as it would involve a merely temporal interpretation of the section against the dictum of the Privy Council. On the face of it, it does not appear that the alleged abusive utterance falls within the scope of the official duty of the respondent or that the respondent could reasonably claim that what he did, he did in virtue of his office." Even if, therefore, it were to be assumed for the sake of argument without conceding, that Article 248(1) gave protection to certain dignitaries referred to in that Article, the same is not attracted to the present or the simple reason that illegal acts have been ascribed to the petitioner which cannot be said to have formed part of the performance of his duty the holder of a representative office.

34. We have, therefore, no hesitation in holding that the protection contained in Article 248 was in any case not available to the petitioner because the misconduct complained of is such as could not be said to have been committed, in the exercise of his functions because what was done was patently illegal.

35. It has also been asserted before us that Martial Law Order 31 by making the dignitaries mentioned in Article 248 subject to the process of the Court runs contrary to the Constitution and that the doctrine of implied repeal can just not be invoked for this purpose We have been told that if a law which conflicts with the Constitution has to be enacted, the Constitution must first be appropriately amended, failing which the law so enacted will have to fall and give preference to the Constitutional provision which would in any case transcend it. Reference may in this connection be made to R. S. Jhamandas and others v. The Chief Land Commissioner, West Pakistan and others (P L D 1966 S C 229) and more particularly, to the observations made by B. Z. Kaikaus, J., at page 252, which run as follows : "The power granted by the Constitution can be taken away only by an amendment of the Constitution unless it be provided in the Constitution itself that the power shall be subject to law. It is open of course to the Constitution to say that a power granted by it may be controlled by a law passed by a competent Legislature, but unless it says so expressly or by necessary implication the mere fact that a particular item is within the legislative competence of a Legislature does not enable the Legislature to legislate with respect to that item in violation of the Constitution itself. The power would in such a case be liable to be taken away only if that particular provision in the Constitution granting the power is amended." Similarly, in Abdul Aziz alias Labha and others v. Province of West Pakistan (P L D 1958 S C (Pak.) 499), where it was observed at pages 506 and 507 as follows : "Constitutional provisions may be stretched by interpretation with the object of saving the validity of statutes, which ex facie contravene the Constitution. It is not permissible to adapt the Constitution for the purpose of saving a statute, when in fact the requirement is that all statutes and more generally, all sub-constitutional laws should conform to the Constitution." Similarly in Marbury v. Madison (2 U S S C (Lawyers' Edn.) 60) at page 73 it was asserted that : "The question, whether an act, repugnant to the Constitution, can become the law of the land is a question deeply interesting to the United States: but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future Government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the Government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a Government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the Legislature may alter the Constitution by an ordinary act. A Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. ` If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written Constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such Government must be, that an act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written Constitution, and, is consequently, to be considered by this Court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the Courts, and oblige them to give it effect ? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So if a law be in opposition to the Constitution, ii both the taw and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered, in Court, as a paramount law, are reduced to the necessity of maintaining that Courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our Government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be given to the Legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written Constitution would of itself be sufficient, ire America, where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say, that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises ? This is too extravagant to be maintained. In some cases, then, the Constitution must be looked into by the Judges. And if they can open it at all, what part of it are they forbidden to read or to obey ? There are many other parts of the Constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case ? ought the Judges to close their eyes on the Constitution, and only see the law ? The Constitution declares "that no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the Court condemn to death those victims whom the Constitution endeavors to preserve? "No person", says the Constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court". Here the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, - and declare one witness, or a confession out of Court, sufficient for conviction, must the constitutional principle yield to the legislative act ? From these, and many other selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of Courts, as well as of the Legislature. Why otherwise does it direct the Judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support . The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding agreeably to the Constitution and laws of the United States." Why does a Judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his Government? if it is closed upon him, and cannot be inspected by him ? 1f such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void; and that Courts, as well as other departments, are bound by that instrument. The rule must be discharged." Similarly, Cooley in his Constitutional Limitations, Volume 1, has at page 378 referred to Solter v. The State (2 Okla Crim. Rep. 464) and has stated that : "And the Criminal Courts of Appeal of Okla Homa have held that though it is the duty of the Court to uphold any statute enacted in the ordinary exercise of the legislative power, unless the constitutional objections to it are clear and indisputable yet when it is proposed by a statute to deny, modify or diminish a right or immunity secured to the people by a clear and explicit constitutional provision, then the presumption is against the validity of the statute and the Courts should enforce the constitutional provision."

36. It can hardly be doubted that in a Federal form the Government with a written Constitution if there is a clash between the latter and a piece of legislation framed under it, the touchstone of the validity of such legislation are the provisions of the Constitution itself. The law can be held to be intra vires and valid only if it does not transgress any provision of the Constitution. If it does so, then it is not the provision of the Constitution which will be held to have been impliedly repealed, but the piece of legislation itself would have to be declared ultra vires as being in contravention of the provisions of the fundamental law. To assert the contrary, would be to make a fun of the Constitution and to ignore the very reason for which it is made. The doctrine of implied repeal of a provision of the Constitution at the hands of an ordinary piece of legislation is a contradiction in terms. It is open to the Chief Martial Law Administrator to amend the Constitution, a power recognized by the judgment of the Supreme Court in Nusrat Bhutto's case subject to certain limitations, but he can do so only by a deliberate and a conscious act expressly amendin the Constitution. It is not possible to destroy a Constitutional provision as if by a side wind.

37. We were referred to Muhammad Afzal v. The Commissioner Lahore Division (PLD 1963 SC 401) at page 410 to show that the various forms of Regulations and Orders issued under the Martial Law have to be placed in different categories and function, purpose, and ambit of each one of them is different from the other. The observation runs thus "An examination of the text of the Articles of the Laws (Continuance in Force) Order, 1958, referred to above, however, clearly lends support to the contention of the learned counsel appearing on behalf of the appellants. The words "Regulation" and "Order" (in which reference to an "Order" of the President" are not to be included) Supra-constitutional document appeared to have been used in different and distinct senses. Although both of them were intended to describe instruments of a legislative kind as opposed to executive or judicial orders, nevertheless, "Regulations" were, in our view, meant to describe laws of a general nature made by the Martial Law Authorities, whilst "Orders" were to be equivalent to subordinate legislative measures, such as rules and bye-laws made to implement the provisions of a general law. This differentiation also appears to have been observed in the Martial Law Regulations made on 7-10-1958 which were the first legislative measures of the Martial Law Authorities, for Regulation No. 1 set up Martial Law Zones, appointed Zonal Administrators and gave them the power to make "Orders" under those "Regulations". Thus under the scheme of the Martial Law itself there was to be not only an administrative hierarchy but also a legislative hierarchy. The Martial Law proclaimed chose a system of Government which was not to be a negation of law but an orderly system following a pattern of its own selection not dissimilar to the pattern of civil administration prevailing in the country. The terminology adopted, therefore, to describe its legislative measures was not without significance."

38. We are in a different situation from that in which the learned author of the aforesaid judgment was. No differentiation has been observed in the Martial Law Regulations and Orders issued by the Chief Martial Law Administrator and no legislative hierarchy has been created so far as the various pieces of legislation turned out into different names by the Martial Law Authorities is concerned. Moreover, at that time, there was no Constitution in force, the same having been held to have been abrogated. We are in a happier position in so far as the Constitution of 1973 continue to be in force as has been held in Nusrat Bhutto's case. We are, therefore, not inclined to accept the proposition advanced in this regard by the learned counsel.

39. Article 4(1) of Martial Law Order 31 lays down the precondition which should be satisfied before the Disqualification Tribunal shall proceed to enquire into any charge of misconduct against a holder of a representative office. It provides that it shall be done only on a reference in writing made to it by the Chief Secretary of the Province. This reference has to be notified in the official Gazette and of course the Chief Secretary has the right to make successive references. We have, therefore, no hesitation in accepting the argument advanced by the learned counsel for the petitioner that the Tribunal cannot proceed to enquire into a charge which has not been so referred to it. This takes care of the second out of the three points on which submissions were sought to be made by learned counsel for the petitioner before us.

40. We are now left with point No.

1. There is no gainsaying the fact that in the exercise of its constitutional jurisdiction under Article 199, this Court does not act as a Court of Appeal in respect of the Administrative Tribunal, whose judgment is assailed before it.

41. The question of the extent of the corrective powers of the Court has been considered in a number of cases by the Supreme Court as well as this Court. The first case in point of time that we would like to advert to is Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973SC236). Dealing with this question the then Chief Justice of that Court observed that : "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be nonexistent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. In the present cases the Verification Orders cannot be said to be without jurisdiction and a nullity, in this sense, merely because of the circulars of the Claims Commissioner, Pakistan, directing the Claims Officers to treat claims for zamindaris and tenancy interests in claims filed under Schedule V-A as claims under Schedule V, leaving out Jagirs and Muafis. If the Claims Officers had misinterpreted these instructions or misapplied them and treated? even? Jagirs and Muafis as claims in respect of properties under Schedule V, then they had no doubt decided wrongly but not without jurisdiction. I am, therefore, unable to agree on this ground the Verification Orders could be treated as a nullity." ???????????

42. Similarly, in Muhammad Hussain Munir v. Sikandar and others (PLD 1974 SC 139) at pp. 142-1 3 it was observed that :- "The argument in our opinion is unexceptionable. It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (ii) of sub-clause (a) of clause (i) Article 98 of the 1962 Constitution. That being so, the learned Judge could have set aside the order, if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue, was "without lawful authority and of no legal effect". These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. It is well settled that where a Court or a tribunal has jurisidiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law ..................... The High Court's supervisory jurisdiction under Article 98 (2) (a)(ii) of the 1962 Constitution (or for that matter under Article 199 (1) (a)(ii) of the present Constitution having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects : first ; the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C. P. C., second ;the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers." Reference was then made by the learned Judge to the judgment of that Court in Badrul Haq Khan v. Election Tribunal, Dacca and others (PLD1963SC704) : "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would disregard of advices to the contrary by Finance/Law Department, Government of Punjab, resulting in huge loss to public exchequer." It was submitted before us that there was an order for the matter being decided by a particular person passed by Mr. Haneef Ramey, predecessor of the petitioner, and that all that the present petitioner did was to order that the compensation assessed by the person appointed by his predecessor be paid and the commitment may be honoured. It was further brought to our notice that for making the payment, sanctioned by the Chief Minister, the Cabinet proposed a supplementary grant which was accepted by the Legislature and duly approved and passed. We fail to understand how the action of the Cabinet and the Legislature could be converted into something justifiable which is a misuse or abuse of power R by a public functionary who was the Leader of the Party which had a brute majority in the Provincial Legislature and which had to put a stamp of approval on whatever was done by him.

51. Be that as it may, a number of facts were placed before the Tribunal and the learned Advocate-General repeated them before us from the relevant file and the order of the Tribunal in support of the charge. We have no intention to discuss that evidence and a bare reading of the order of the Tribunal relating to Charge No. 10 clearly shows that there was lot of evidence before the Tribunal relatable to this charge and if the Tribunal .came to the conclusion that the charge was proved by that evidence to its satisfaction, we have no business to re-appraise the evidence.

52. Charge No. I I.-"That you had on 11-10-1953, obtained lease of State land measuring 1257 kanals 4 marlas in Chak No. 13/Faiz, Tehsil Multan. under the Tube-well Scheme of 1952. Under the law you could not retain the said land even on lease as the land owned by you exceeded 250 acres. You were in the year 1974 conferred proprietary rights in the land on lease with you which you sold away in the year 1976 for a sum of Rs. 17,60,000 without previous sanction of the Government. You were under the terms of grant not competent to sell the land for a period of five years from the date of conferment of proprietary rights which amounted to misconduct." The Tribunal held the petitioner guilty only in respect of the second part of the charge. It also took note that the relevant file had been misplaced in the office of the Deputy Commissioner, Multan, which according to the Tribunal may give rise to wild speculations. The Tribunal has held, that according to pare. 1:1-A of the terms and conditions of grant as incorporated in the registered document. the petitioner was not competent to alienate in any manner whatever the whole or part of the land for a period of five years to be reckoned from the date of the registration of the deed without previous consent of the Government in writing.

53. The petitioner admitted that he had sold the land within that period but urged that the stipulation in the registered grant was illegal and, therefore, it was no bar to the sale. The Tribunal found against him but made the decision subject to the finding that may be arrived at in a writ petition regarding the same which was pending in the High Court.

54. Learned counsel submitted that the contention of his client had the support of the decision of the Privy Council in Muhammad Din v. Imam DM (P L D 1947 P C 317), and relied upon the observation at page 321, which is as under:‑ "The real question is whether it was competent for the executive authority under the form of granting proprietary rights to grant something very different and in fact to create an estate of a kind unknown to the law. For the result of a grant with such a condition is to deprive the grantee of proprietary rights of an essential right of property, viz., the free power of disposition, and moreover to fetter it not by an absolute bar against alienation nor by such a bar except with the consent of a particular person, but by a bar against alienation "except with the concurrence of the reversioners," a body of persons presumably altering from time to time and perhaps at no time easily ascertainable. Their Lordships do not find any justification for such a condition in the Act or any Rules that have been brought to their notice."

55. The ratio of this finding is relatable to the facts of that case in which as has been shown above, "the free bar of disposition was inhibited by bar against alienation except with the _ concurrence of the reversioners" which in the eye of the Privy Council "was a body of persons presumably altering from time to time and perhaps at no time easily ascertainable." The argument of the learned counsel loses sight of the fact that in that very sentence the Privy Council had observed "and moreover to fetter it not by an absolute bar against alienation nor by such a bar with the consent of a particular person". In the present case the bar was not an eternal bar but only for five years and even during that period the land could be sold with Government permission.

56. The Supreme Court has in Anjuman e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha etc. (P L D 1966 S C 639), held that ?Under section 30 of the Colonization of Government Lands Act, 1912, it appears that a person, who bas under the rules issued by the Government acquired proprietary right in any Government land, is to be bound in respect of such land by the conditions set out in the Schedule 11 of the Act itself and other provisions of the Act applicable to proprietors of land. Under paragraph 155‑A of the Departmental instructions, referred to in the said Schedule, on completion of the purchase and execution of the conveyance the parties cease to be governed by any conditions incompatible with those actually incorporated in the instrument itself. Such a grant being a Crown grant is to be read, according to its tenor, any statute or law to the contrary notwithstanding. This Schedule also indicates that the right of re‑entry or assumption can only be exercised where a breach of any of the conditions of the sale has taken place and that too after the dispute, if any, has been referred, following the procedure therein prescribed, to arbitration, if the same has not been excluded by the terms and conditions of the deed. In the present case, however, the deed itself provides in paragraph 1 l‑A (earlier quoted) that when?ever there is a dispute or difference there shall be an arbitration." This is a view which is binding upon this Court in preference to the Privy Council even if that decision were at variance with it.

57. The result is that it is not possible for us to agree with the learned counsel on this submission and we have no reason to disagree with the learned Tribunal on this point.

58. We, therefore, dismiss this petition but in view of the intricated points of law involved, leave the parties to bear their own costs.

59. Summary Military Court No. 42, Lahore Cantt. shall not proceed with the case against the petitioner till the 15th of January 1979, to enable him to avail of a Petition for Special Leave to Appeal to the Supreme Court against this judgment, if he so desires.

60. Before patting with this case, we want to acknowledge the remarkable assistance rendered to this Court by the Attorney-General, the Advocate General and learned counsel for the petitioner.

3. A. H.??????????? Petition dismissed.