P L D 1954 Federal Court 187 (PLP)

AKRAM, J.--‑During the recent outbreak of a disturbance on a somewhat large scale in the city of Lahore, a proclama tion was issued on 6th March 1953, declaring Martial Law and administration of the Martial Law area was taken over by Major‑General Muhammad Azam Khan as the Chief Military Administrator. Soon after that a number of Martial Law Regulations were promulgated and on 23rd March 1953, the petitioner Abdus Sattar Khan Niazi was arrested and put upon his trial before a Court Martial for having delivered seditious speech on 6th March 1953. He was convicted and sentenced to death on about 7th May 1953, under section 124A of the Penal Code read with Martial Law Regulation No.

8. On 9th May 1953, the Martial Law (Indemnity) Ordinance, II of 1953 was promulgated by the Governor‑General "to indemnify servants of the Crown and other persons in respect of acts done under Martial Law and to provide for certain other matters in connection with the administration of martial law". On 14th May 1953, Major‑General Muhammad Azam Khan commuted the sentence of death of the petitioner to one of rigorous imprisonment for fourteen years. In June 1953, the petitioner presented a petition under section 491 Cr. P. C. before the High Court of Judicature at Lahore for releasing him on the ground that his imprisonment was illegal and invalid. The High Court, however, rejected this petition on 3rd July 1953. The petitioner thereupon filed the present petition on 10th August 1953 for leave to appeal from the judgment of the Lahore High Court. Pending this petition, the Martial Law (Indemnity) Act, XXXII of 1953, came to be passed on 3rd November 1953. Counsel for the petitioner urged inter alia :‑ (1) that on the 23rd March 1953, Major‑General Muhammad Azam Khan having made a declaration to the effect that the first phase of restoring peace and order having been achieved, the second phase of reconstruction had been begun, any action on the part of the military since 23rd March 1953, was clearly beyond the scope of their legitimate function and contrary to the principles of Constitutional Law ; that consequently the sentence of death dated 7th May 1953, and its commutation dated 14th May 1953, were unlawful and of no legal effect ; (2) that the Martial Law (Indemnity) Act, XXXII of 1953 was ultra vires of the Federal Legislature as in fact it amounted to a delegation of its own powers to the military personnel by giving them a free‑hand in the civil administration during the martial law (3) that section 6 of the Martial Law (Indemnity) Act, validated "all sentences passed during the martial law period by a Court or other authority constituted or appointed under martial law and acting in a judicial capacity" that this provision implies the application of a judicial procedure as usually followed in Courts of justice, but contrary to it some of the defence witnesses who were absent had not been re‑summoned by the Court Martial for their examination. As to (1) it is not for the military authorities, but for the Executive Government to determine when it could take back the work of administration with safety and without risk, since it is the Executing Government which' calls the military to its aid. ' Further under section 2‑ of the Act, "Martial Law period" is defined as the period "beginning 'on the sixth day of March 1953, and ending on the 15th day of May 1953 ' which obviously covers both the dates, when the death sentence was passed and when the commutation was ordered. As to (2) the Federal Legislature is a legislative body possessing sovereign powers and no question therefore of ultra vices with regard to, its legislative enactments can arise. Under section 6 (2) of the Independence Act‑ "No law and no provision of any law made by the legislature of either of the new Dominion, shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing of future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act and the powers of the Legislature of each Dominion, include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion'. The powers which the Federal Legislature now exercises are thus as large and ample as those of the British Parliamen4, itself. The Martial Law (Indemnity) Act is an Act of the Federal Legislature and no question therefore of a delegation of its powers to any one arises. The Act merely legalizes what may be considered to be illegal or irregular during the Martial Law period, committed in an endeavour to restore peace and order. It adopts and confirms inter alia the sentences passed by "a Court or other authority con stituted or appointed under Martial Law while acting in a judicial capacity". It is in essence an emergency measure which may be described as ex‑post facto law. Under the general principles of Constitutional Law, the right of the military to take measures to protect others and themselves against the harmful activities of the civil population cannot be doubted ; there must be given some discretion arid liberty, of action to the military when the martial law is in force. Indeed, the right to repel force by force for the purpose of suppressing 'riots, disturbances and insurrections is a part of the civil law and rio exception can be taken to it. As to (3) the expression "acting in a judicial capacity" in' section 6 of the Act; is, to my mind, meant mainly to emphasise the duty of adjudication as distinguished from administration and meeting the requirements of military exigencies. The word `capacity' here is not without signi ficance, one may be vested with various capacities for exercising various kinds of functions, `judicial capacity' describes only the character in which the work is to be performed. In any event the calling or not calling of witnesses by the Court Martial or other authority constituted under Martial Law is no ground for an order of release under section‑ 491 Cr. P. C. It has to be borne in mind that "Martial Laws, which in a strict legal sense are no laws at all, are merely exceptional methods adopted by the military for preserving order, and safeguarding the interests and integrity of the States during war and insurraction". (1). None of the contentions pressed before us, seems to me to have any real force and I accordingly dismiss this petition, SHAHABUDDIN, J.‑‑I agree entirely with the judgment proposed by my brother Cornelius, to which I have nothing to add. The petition should, in my opinion, be dismissed. CORNELIUS, J.--‑I agree that this petition should be dismissed, but in view of the importance of the case, I consider it desirable that I should state my reasons in my own words. The petitioner Maulana Abdus Sattar Khan Niazi stands convicted under section 124~A P. P. C., for which the maximum punishment prescribed under the ordinary law is transportation for life. The petitioner was however tried by a Military Court on the 29th April 1953, at which time the area of Lahore was being administered under Martial Law by the Major‑General commanding the 10th Division who, in his proclamation of Martial Law, had designated himself as the Chief Martial Law Administrator. In that capacity, he had issued inter alia a regulation which enhanced the maximum sentence for the offence of sedition to death. The Military Courts appointed by the Chief Martial Law Administrator did not deal with all crimes but only with such ‑cases as were sent to them. The ordinary criminal Courts continued to function during the period that the condition of Martial Law prevailed in Lahore. It appears that the petitioner was also tried by the same Court on a charge of abetment of murder, but was acquitted. The charge of sedition was based on two speeches alleged to have been made by the petitioner on the 3rd and 6th March 1953, respectively. In the absence of the, record, it has not been possible to ascertain in respect of which speech the petitioner' was convicted, or whether it was in respect of both the speeches. It was stated at the Bar that on the 7th May 1953, the petitioner, was committed to the custody of the Superintendent of the Central Jail, Lahore, under a warrant which declared that the Military Court had convicted him under a certain Martial Law Regulation, and on the 4th May 1953, had passed sentence of death upon him, which the Superintendent was directed to carry out. It appears however that the sentence was subject to confirmation by the Chief Martial Law Administrator, who did not in the event confirm it, but commuted it to 14 years' rigorous imprisonment. In com pliance with this order, on the 14th May 1953, the commutation was duly notified to the Superintendent of the Central Jail. The period of Martial Law came to an end at midnight between the 14th and the 15th May 1953. Martial Law had been proclaimed on the 6th March 1953. On the 9th May 1953, the Governor‑General of Pakistan, acting ' under section 42, Government of India Act, 1953 promulgated the Martial Law (Indemnity) Ordinance, 1953. (1) F C R Vol, 1, p.135 at p.185=P I, D 1951 F C 73 at p.106, This instrument was expressed to come into force at once, and besides a definition clause included six substantive provisions section 3 provided indemnity against suits, prosecution or other legal proceedings to servants of the Crown in respect of acts done or purporting to be ; done for the purposes of maintaining or restoring order, or in obedience to directions of a superior authority, in the Martial Law area during the Martial Law period. Similar immunity with qualifications was given to private persons who acted or purported to act under orders of the nature in question given by a servant of the 'Crown. By section 4 it was provided that suits brought against servants of the Crown or others in respect of acts of the kind mentioned in section 3, which were alleged not to have been done in good faith or under a specified reasonable belief, should require the prior sanction 'of prescribed authorities. Section 5 embodied a provision of a peculiarly drastic nature. It declared that all seizure, confiscation, destruction or damage in relation to private property, occurring during the Martial Law period in the Martial Law area, in the course of operations conducted by or under the direction of servants of the Crown acting under Martial Law "shall be deemed to have been lawfully ordered and authorised, and no claim shall be maintainable in any Court in respect of any such property for the restoration thereof or for compensation for any loss sustained". Section 6 operates to validate all sentences passed during the Martial Law period "by a Court or other authority constituted or appointed under martial law and acting in a judicial capacity". Such sentences were to be deemed to have been lawfully passed and if already executed according to the tenor were to be deemed to have been lawfully executed. Section 7 relates to sentences continuing at the termination of Martial Law, and provides that persons confined under such sentences should continue liable to such confinement until the sentence was served out, subject to permissible remissions, and to release by order of the Central Government. By section 8, the effect of sections 7 and 5 was extended inter alia to sentences passed by Courts or other authority under Martial Law, in respect of offences or parts of offences committed before the imposition of Martial Law. This Ordinance was in force when a petition was pre sented on the petitioner's behalf in June 1953 to the Lahore High Court in which it was prayed that the petitioner be set at liberty. That petition was dismissed on the 3rd July 1953, and by the present petition, Maulana Abdus Sattar Khan Niazi seeks special leave to appeal from that order of dismissal. Since that date, the Martial Law (Indemnity) Ordinance, 1953, has been superseded by an Act of the Federal Legislature entitled "The Martial Law (Indemnity) Act, 1953" which received the assent of the Governor- General on the 3rd November 1953. The provisions of the Act are in certain respects substantially different from those of the Ordinance, but not in any respect material for the purposes of the present case. The principal grounds of challenge to the continued confinement of the petitioner under the sentence in question were, firstly, that by the Martial Law (Indemnity) Act, 1953, the Federal Legislature of Pakistan was, in effect, ratifying its own abdication of its legislative functions for the later portion of the Martial Law period commencing from the 23rd March and ending on the 14th May 1953, and secondly that the circumstances attending the trial and conviction of the petitioner were such that it could not, on any reason able view, be said that those responsible for the trial and sentence had acted in a judicial capacity. It will be convenient to examine the second argument first. In the initial stage of his argument, Mr. Manzur Qadir urged that the requirements of natural justice had been denied to his client in several respects, and in particular that only one day's notice of the hearing of the case was given to him and he was required to produce his defence evidence as soon as the trial began. It was admitted however that four witnesses were examined for the defence, though it was later said that the Military Court had denied justice to the petitioner in refusing to re‑summon four important witnesses whose summonses had been left unserved in the first instance. It was admitted that arguments were heard by the Military Court. As regards the sentence, it was at first contended that the Military Court did not award any sentence, but contented itself with communicating its views to the Chief Martial Law Administrator, who did not hear the petitioner or any counsel on his behalf, and may not even have referred to the record, and his imposition of a sentence of death, or any sentence, could not be regarded as a judicial act in any sense. At a later stage however and on further enquiry, it was admitted that the Chief Martial Law Administrator had directed that the trial of cases by Military Courts should follow the procedure laid down for summary general Courts martial under the Indian Army Act, 1911, and that the sentence of death was awarded not by the Chief Martial Law Administrator, but by the Military Court, although subject to confirmation by the Chief Martial Law Administrator. Finding it impossible to urge that the procedure of a summary general Court martial does not provide the necessary elements for a due and proper administration of justice, Mr. Manzur Qadir finally relied on two circumstances only, namely, that four important witnesses for the defence had not been re‑sum moned and secondly that confirmation of the death sentence by an authority which took no part in the trial could not be said to be an act performed in a judicial , capacity. There is no force, in either of these contentions. In respect of the presentation of his case in defence, the minimum requirements of justice are that an accused person should be allowed to present his plea, as well as a reasonable opportunity to support it, and to rebut the evidence led against him, by producing defence witnesses. The procedure actually followed would seem to satisfy these requirements. As for the other argument, it is sufficient to say that, in the result, the Chief Martial Law Administrator did not confirm the death sentence, but acted in mitigation thereof, by reducing it to 14 years imprisonment. Under most acts relating to armies, death sentences passed by Courts‑martial require to be confirmed by the Comander‑In‑Chief, before they can be carried into execution, and the Cr. P. C. also contains a r provision requiring confirmation by the High Court of sentences of death awarded by Sessions Judges. There is nothing contrary to any basic conception of justice in a provision of this kind. In the light of these conclusions, it is sot necessary to consider at length whether the words "acting in a judicial capacity" are merely designed to differentiate acts of the kind in question from other acts of a purely administrative kind or whether, on the contrary the intention is not, by the employment of these words, to confine the saving effect of the section to acts which, in their essence, satisfy the minimum requirements of a judicial determination. I find myself, to my regret, in disagreement with my learned brother Akram on this point. In my view the words "acting in a judicial capacity" are not merely words of indication, but are intended to be, and are in fact, words of limitation. So much appears to me to follow from giving to each word in the phrase, its full and plain grammatical meaning, but I base this con clusion also upon the consideration that when the Federal Legislature was considering the question of the extent to which the acts performed by self‑appointed authorities during p the extra‑constitutional regime represented by the Martial Law period could be maintained in their effect, it may well have considered that the saving should be confined to those particular acts, purporting to be acts performed in the administration of justice, which were in fact performed in compliance with the minimum requirements of the dispensa tion of justice. In certain precedent cases, which were cited before us, notably those of Sholapur (I L R 55 Bom. 263.) and Natal (L R 1907 A. C, 93,), the Acts of indemnity did riot include this qualification, and it is reasonable to suppose that the words have been intentionally employed in the present Act with a view to creating the salutary effect of limitation, which has been indicated above. I now proceed to consider the question whether any abdication of its essential legislative functions is involved in the enactment by the Federal Legislature of the Martial Law (Indemnity) Act, 1953. The substance of the argument, as I understood it, may be put as follows :‑ "Martial Law having been imposed by the Military Commander on the 6th March 1953, the said Commander on the 23rd March made a public pronouncement to the effect that the first phase of Martial Law namely the restoration of law and order had been effectively accom plished, and the second phase of Martial Law, which he described as "constructive" had begun. Basing upon the argument that Martial Law owes its existence to urgent necessity usually in relation to the maintenance of law and order and comes to an end automatically when the conditions which necessitated its imposition have ceased to exist, Mr. Manzur Qadir contended that from the 23rd March upto the 14th May 1953, inclusive, there had been abdication by the Federal Legislature of its functions under the Constitution inasmuch as, during this period, the Military Commander was allowed to administer the Martial Law area under laws of his own making for which there was no warrant in the Constitution of Pakistan, viz., the Government of India Act, 1935. Although the Federal Legislature had not, in fact, empowered the Military Commander to make these laws and to administer the Martial Law area in an extra‑constitutional manner, it was in fact in session at the time when Martial Law was imposed and was therefore assumed to be aware of the usurpation of its functions. It was stated that on the 23rd March 1952, the Federal Legislature was still in session, and whatever might be said of the justification for extra constitutional measures in the period from 6th March to 22nd March inclusive, it must be assumed that on the 23rd March 1953, the Federal Legislature was aware that existing' conditions permitted the restoration of its authority, and that of the executive, to bring the extra‑constitutional state of affairs to an end. There was consequently, conscious abdication of power and non‑performance of duty, for the period from the 23rd March to the 14th May. While the Indemnity Act purported directly only to affect the right of life, liberty and property of citizens, it had also another effect, namely that of ratifying the action of the Federal Legislature in allowing its functions and those of the Central Executive to be exercised, without necessity in fact, by the Military Commander. By reason of this effect, the legislation must be deemed to be void". The judgment of the High Court contains the statement that Martial Law was imposed with the consent of the Central Government. Accepting this statement it would yet not compromise the Federal Legislature itself in the transaction by which administrative powers vested by the Constitution in the Central and Provincial Governments were to be exercised to the knowledge of those Governments by the Military Commander. Moreover, though the Federal Legislature is not devoid of means by which it could express its disapproval of the transaction, should it have been so minded, yet the question whether or not these means should have been employed is not one which concerns this Court or any Court. The contravention of constitutional provisions' in relation to the administration of the Martial Law area during the material period was brought directly before the Federal Legislature when it was asked to enact the Martial' Law (Indemnity) Act, 1953, and it was open to the Legislature in dealing with the Bill, to take such action as it thought fit, in relation to the executive authorities which were responsible. Such action need not have involved any act of legislation, and consequently no question of abdication of legislative functions is involved in that aspect of the matter. Assuming that the Federal Legislature expressed no dis approval of the action of the executive authorities appointed under the Constitution that would indeed amount to ratification of that action, but again, for the reason mentioned immediately above, such ratification would not involve the legislative functions of the Federal Legislature. In my opinion, the Martial Law (Indemnity) Act, 1953 is to be regarded as a statute having the effect of assimilating into the new conditions created by restoration of the rule of law under the Constitution, certain acts of the self appointed authorities, which had been operating in the Martial Law period, in so far as such acts affect private citizens in respect of life, liberty and property. To make such a provision, following upon a period of extra‑constitutional administration, was certainly a proper exercise of the legislative functions of the Federal Legislature. In the absence of such provision, all acts of the aforesaid self appointed authorities would be actionable at the instance of persons adversely affected thereby. It is inconceivable that the Legislature, while on the one hand it did not disapprove, and consequently by implication ratified, the carrying on of the administration by such self‑appointed authorities, during the material period, should at the same time have left all those who participated in the task of administration in that period, open to suit or prosecution by persons against whom they had felt it their duty to take action, to which suit or prosecution no defence could be offered. Provisions similar to those in the Martial Law (Indem nity) Act, granting immunity to persons acting in the discharge of public duties, are obviously wholly within the competence of the Federal Legislature, and this, irrespective of whether or not such persons were duly constituted in authority or otherwise. Similarly, provisions regarding the seizure of property in emergencies are contained in numerous statutory instruments with which the country was made familar during the years covered by the Second Great War (although it should be observed that ordinarily provision was made for grant of compensation and that would appear also to be required by the Constitution). As to maintenance of sentences awarded by tribunals whose jurisdiction is doubtful or has been avoided, there are instances of such sentences being validated ex post facto, by means of legislative instruments, e.g., The Special Criminal Courts Ordinance, XIX of 1943. Statutes requiring notice before suit to be given by plaintiffs intending to sue servants of the Crown in respect of acts performed in their official capacity are very common. It is therefore unnecessary to search in the Legislative Lists appended to the Constitution Act to discover the vires for such a statute as the Martial Law (Indemnity) Act, 1953. Moreover, there is in existence a notification of emergency under section 102 of the Constitution Act which is in itself sufficient to confer power upon the Federal Legislature to legislate at large for a Province. It is desirable that I should make it clear that, in the view I have taken, the powers of the Federal Legislature are derived froth, and are circumscribed by, the express provisions of the Govern ment of India Act, 1935, as still in force in Pakistan. I am unable, therefore, to agree with the opinion of my learned brother Akram, that the powers of the Federal Legislature (as distinguished from the Legislature of the Dominion) are, in the existing circumstances, as wide as those possessed by the British Parliament. I entertain no doubt therefore that the Federal Legis lature had full power to enact such an instrument as the Martial Law (Indemnity) Act, 1953, and I consider that, so far from any abdication of legislative functions being involved in such an enactment, it represents on the contrary a proper performance of a legislative duty, namely to restore the rule of law in respect of acts performed by self‑appointed extra‑constitutional authorities during the emergency. As for the fixation of the date 14th May 1953, as the terminal date of the Martial Law period, that was entirely within the discretion of the Federal Legislature, and I cannot see that there is anything but due performance of the legislative function involved in fixing that date. It is impossible in my opinion for any Court to say that by not fixing an earlier date, any abdication of legislative functions resulted. For these reasons, I consider that there is no force in this petition. The decision of the High Court on the petitioner's application under section 491 Cr. P. C. appears to me to be plainly correct. A. H. Petition dismissed.