2001 PLP 1 (YLR)

"Daily "The News" in its publication, dated 21st March, 2000 has reported the above debate. " "It is a sad state of affairs that no conceivable steps were initiated to curb the systematic corruption because of lack of transparent accountability during the tenure of the previous Government. The material placed before us indicates that the former Government had shown little interest in eradicating corruption from the society." "The observations made herein and in the Short Order are not intended to condemn bloc the politicians and parliamentarians as a class. Undoubtedly, there are good honest and upright as well as corrupt people in every group of persons." "In order to voluminous record wherein specific instances of misdeclaration of assets have been given. We have examined the relevant record only for the purposes of the present controversy and find that sufficient material exists showing prima facie, that a large number of politicians indulged in misdeclaration of assets, which factor has a bearing on the issue in hand. We may clarify that misdeclaration of assets or any discrepancy as to declaration of assets before the Wealth Tax Authorities qua the Election Commission may not by itself be a ground for intervention of the Armed Forces on 12th October, 1999 but this aspect of the matter when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practice becomes a relevant factor." "After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country's economy inasmuch as G.D.P. growth during the past three years had hardly kept pace with the growth of population and Pakistan has a debt burden which equals the country's entire national income." "The learned Attorney‑General relied on an interview of Mr. Khalid Anwar, former Law Minister, given to the media, published in Daily Khabrain dated 25‑3‑2000 wherein he observed: "Nawaz Sharif, had been exercising the powers like a Mughal Emperor." "On the question of well‑being, the learned Attorney‑General stated that the well‑being of the people is a reflection of the combined effect of sovereignty, integrity and solidarity and there can be no well‑being without either of sovereignty, integrity, solidarity and prosperity." "After careful analysis of the above material, we are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, power corrupts and absolute power corrupts absolutely" "The fact remains that this Court is of the considered view that intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time and, therefore, there is no valid justification for not validating the extra‑Constitutional measure of the Armed Forces on the technical distinction between 'doctrine of necessity' and the doctrine of State necessity'." It is for the Superior Courts alone to decide whether any given peculiar and extraordinary circumstances warrant the application of the above doctrine or not. " "It is Government of the people, by the people and for the people; and not by the Army rule for an indefinite period. " 6(I) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO‑1 of. 1999, whereby he has been described as Chief Executive, 'having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter." 6(vi) "That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf." 6(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts." He summed up his argument that the present regime had failed to achieve the objects highlighted by the Chief Executive in his speeches of 13th and 17th October, 1999. The Honourable Supreme Court has granted conditional validation. R6spondents did not improve the conditions better than the 12th October, 1999 and in fact conditions qua each and every sphere of the life is worst than 12th October, 1999 and this Court has ample jurisdiction to analyses the prevailing situation in the country and shall take judicial notice of the events subsequent to the judgment of the Honourable Supreme Court in Syed Zafar Ali Shah's case. We have considered the contentions of learned counsel for the appellant and perused the record. It is better and appropriated to reproduce Constitutional history and case‑law on the subject since the creation of Country to resolve the present controversy between the parties:‑‑ "Pakistan came into existence on the map of World on 14‑8‑1947 under the Independence Act, 1947. Pakistan was to be governed by the provisions of Government of India Act, 1935 as adopted by the Pakistan Provisional Constitution Order, 1947 until a Constitution was framed by the competent body which also formulated the function of the Federal Legislature. The competent body i.e. Constituent Assembly failed to frame Constitution even after the lapse of seven years and was guilty of acting as if it was permanent Legislature. The then Governor‑General Mr. Ghulam Muhammad dismissed the Constituent Assembly on 24‑10‑1954 on the reason that it had become unrepresentative character. Moulvi Tameez‑ud‑Din Khan being aggrieved, by the aforesaid action of the Governor‑General filed a petition under section 223‑A of the Government of India Act, 1935 before the Chief Court of Sindh with the prayer for issuance of writs of mandamus and co warranto. The Federation of Pakistan raised preliminary objection on the ground that section 223‑A under which the issuance of writ was prayed for was not enacted properly for want of assent of the Governor‑General. The Chief Court Sindh rejected the preliminary objection of the Federation of Pakistan on the ground that the Assembly functioned as Constituent Assembly and not a Federal Legislature, therefore, assent was not given and writ petition was accepted. The Federation of Pakistan being aggrieved filed appeal before the Federal Court. The Federal Court reversed the findings on this point and the Chief Court held that Constituent Assembly while enacting section 223‑A exercised power under section 8(1) within the meaning of section 6(l) of the Indian Independent Act was Legislature of the dominion and as such legislation under section 6(3) of the Act requires assent of the Governor General which was lacking and the judgment of Chief Sindh Court was set aside by the Federal Court reported as Federation of Pakistan and others v. Moulvi Tamiz‑ud‑Din (PLD 1955 FC 240)." The aforesaid decision of the Federal Court had far‑reaching consequences as number of enactments were promulgated by the Constituent Assembly since 1950 which had not received the assent of the Governor-General. Due to this reason Governor-General promulgated Emergency Powers Ordinance, 1955 to validate to these enactments which had been enacted since 1950. The validity of the Ordinance fell for consideration in Yousaf Patel's case before the Federal Court reported as (PLD 1955 FC 38). The Federal Court had that validation amounted to legislation and the Constituent Assembly alone was competent to legislation on Constitutional matters and by its dissolution, the powers held by it could not be transferred to the Governor‑General. The Governor‑General could only either accord or refuse his assent to the enactments passed by Constituent Assembly, Ordinance was thus found to be invalid is so far as a conferred validity on the laws of the Constitutional character rendered invalid on account of the lacking of assent of the Governor‑General. The aforesaid decision had effect of creating a serious Constitutional chaos in the Country as there was no competent Legislature to validate the law in question. The Governor General filed a Reference before the Federal Court under section 213 of the Government of India Act, 1935 with the prayer seeking Federal Court opinion to overcome crises with which the Country was faced (PLD 1959 FC 435) which reveals the question referred by the Governor‑General to the Federal Court inter alia as follows: "Is there any provisions in the Constitution or any Rule of law applicable to the situation of which the Governor‑General can by any order or even otherwise declare that all orders made, decision taken and other cause done under these laws shall be valid and enforceable and these laws which cannot .without danger to the Sate remove from the existing legal system shall be treated as a part of the law of the land until the question , of validity which determined by the new Constituent function. " Mr. Muhammad Munir the then Chief Justice has expressed his opinion in the following terms: "The powers and responsibilities of the Head of State in preserving the State and Society during an extraordinary emergency and preventing from disruption the Constitution and Government of the country are analogous to the powers which an Army Commander had .during Martial Law. He also referre6 to the following opinion of Lord. Mansfield in George Stratipn and others (1979) 21 Howells State trial 1045). " ....the only question for you to consider is this: Whether there was that necessity for the preservation of the Society and the habitants of the place as authorized private men

To take possession of the Government; and to take possession of the Government to be sure it was necessary to do it immediately, "to amount to a justification, there must appear imminent danger to the Government and individuals; the mischief must be extreme, and such as would not admit a possibility of waiting for a legal remedy. That the safety of the Government must well warrant the experiment ....The necessity will not justify going further than necessity obliges; for though compulsion takes away the criminality of the acts, which would otherwise be treason, yet it will not justify a man in acting farther than such necessity obliges him or continuing to ‑act after the compulsion is removed." The Chief Justice then expressed his own opinion:

subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity (it) affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful that which otherwise is not lawful. Since the address (of Mansfield) expressly refers to the right to a private person to act in necessity, in the case of Head of the State justification to act must a fortiori be clearer and more imperative. " The Chief Justice further observes:‑‑‑ " ....The disaster that stared the Governor‑General in the face, consequent on the illegal manner in which the Constituent Assembly exercised its legislative authority, is apparent from the results described in the Reference as having followe4 from this Court's decision in Mr. Tameez‑ud‑Din Khan's case and the subsequent case of Yousuf Patel. The Governor‑General must, therefore, be held to have cited in order to avert an impending disaster and to prevent the State and Society from dissolution. His 'Proclamation of 16th April, 1955, declaring that the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955 shall be retrospectively enforceable is accordingly valid during the interim period, i.e. until the validity of these laws is decide upon by the new Constituent Assembly," In view of the opinion of the Federal Court Constituent Assembly was installed under the Constitutional Assembly Order, 1955. It passed the validity of laws Bills which was duly assented by Governor‑General; thereafter the Constituent Assembly u: Pakistan finally passed the Constitutional Bill. The first Constitution of Pakistan came into force on 23‑3‑1956. Mr. Ghulam Muhammad resigned from the office of Governor‑General, and Major General Sikandar Mirza had succeeded office of Governor‑General of Pakistan w.e.f. 7‑10‑1955 who became President of Republic of Pakistan who had abrogated Constitution of 1956 and dissolved the Legislative Assemblies and also dismissed the Federal and Provincial Governments and also abolished the political parties. He also proclaimed Martial Law throughout the country and appointed General Muhammad Ayub as Chief Martial Law Administrator. The proclamation contained inter alia I following reasons for imposing proclamation:‑‑‑ "

The Constitution

is so full of dangerous compromises that Pakistan will disintegrate internally if the inherent malaise is not removed. To rectify this, the country must be firstly brought to sanity by peaceful revolution. Then it is my intention... to devise a Constitution more suitable to the genius of the Muslim People..." The aforesaid action was challenged before the Hon'ble Supreme Court in State v. Dosso and another and 3 others (PLD 1958 SC 533). The Honourable Supreme Court examined the question of validity of Martial Law and laid down the following principle: "

For the purposes of the doctrine here a change is, in law, a revolution if it annuls the Constitution and the annulment is effective ....if the revaluation is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country, to conform to the. new regime, then the revolution itself becomes a law creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus, the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. If what I have already stated is correct then the revolution having been successful it satisfies the test of efficacy and becomes a basic law creating fact. On that assumption the Laws (Continuance in Force) Order, however, transitory or imperfect it may be, is a new legal order and it is in accordance with that order that the validity of the law and the correctness of judicial decisions has to be determined. Under the new legal order any law may at any time be changed by the President there being no restriction on the President's law‑making powers." It is pertinent to mention here that Field Marshal Muhammad Ayub Khan, replaced Maj. General Iskandar Mirza and gave new Constitution to the Country on 8‑6‑1962. He remained in power as President of Pakistan up to 25‑3‑1969. The country fell in major crises and Field Marshal Muhammad Ayub Khan had to tender his resignation and handed over the control of the country to General Muhammad Yahya Khan, who also abrogated the Constitution and became Chief Martial Law Administrator who assumed the office of President and continued to act as President until 20th December, 1971, when Mr. Zultikar Ali Bhutto, took over as President and Chief Martial Law Administrator. The principle laid down by the Hon'ble Supreme Court in Dosso supra case ‑was examined by the honourable Supreme Court in Asma Jillani's case (PLD 1972 SC 139) and laid down following principle: ....... The assumption of power by Agha Muhammad Yahya Khan as Chief Martial Law Administrator and later as President of Pakistan was an act of usurpation, and was illegal and unconstitutional. All the legislative and administrative measures taken by this unauthorized and unconstitutional regime cannot be upheld on the basis of legitimacy, but such laws and measures which are protected by the doctrine of necessity, that is to say, which were made for the welfare of the nation and for the ordinary orderly administration of the country, can be deemed to be valid ....Martial Law Regulation No.78 of 1971 under which the two detainees were held is an illegal regulation which cannot enjoy the protection of the rule of necessity." After holding that Martial Law regime of Yahya Khan was utterly illegal, relying on the Attorney- General of the Public v. Mustafa Ibrahim and others (1964 Cyprus Law Reports 195) and dissenting opinion of the Lord Pearce in Madzimbamuto v. Lardner Burke ((1968) 3 AER 561) Hamood‑ur Rehman, CJ expressed the view that: ‑‑‑‑

I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the view that it is a doctrine for validating the illegal acts of usurpers ... ....I would call this a principle of condemnation and not legitimization .....I would condone all transactions which are past and closed for no useful purposes can be served by opening them, all acts and legislation, legislative matters which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order; all acts which tend to advance or promote the good of the people; and all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution. " Subsequently, Zulfikar Ali Bhutto, became Prime Minister of the country who remained in the office till July, 1977. Then General Muhammad Zia‑ul‑Haq, Chief of Army Staff took over control of the country on 5‑7‑1977 and also issued proclamation whereby the whole of Pakistan was brought under Martial Law. The Constitution of Pakistan was held in abeyance. Tote Prime Minister including his Cabinet, Speaker, Deputy Speaker and Chief Ministers were ceased to hold office. The President of Pakistan was allowed to remain in office. General Muhammad Zia‑ul‑Haq also issued Laws (Continuance in Force) Order, 1977 to give effect to the proclamation in which he had taken the control of the country. Begum Nusrat Bhutto, being aggrieved by the imposition of Martial Law challenged the same under Article 184(3) of the Constitution before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the effectiveness of regime provides its own legality and rather took the view that the enactment of the legal order is only condition of validity and not the validity itself. The Hon'ble Supreme Court summarized the legal position as under:‑‑‑ (i) That the 1973 Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; (ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken all new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally i established under the 1973 Constitution, and have continued in their functions in spite of the proclamation of Martial Law; (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:‑‑ (a) All acts of legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely restoration of law and order, and normalcy in the country, the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution; (iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or as the occasion may require; and (v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; (vi) General Muhammad Zial‑ul‑Haq Chief Martial Law Administrator promulgated Provisional Consti tution Order on 24‑3‑1981. The same was self‑contained document and certain Articles of 1973 Constitution were made part thereof. The country was governed in accordance with the provisions of this Order until 30th December, 1985 when Martial Law was lifted. The Revival of the Constitution of 1973 Order, 1985 was promulgated. It was first amended in the Constitution Second Amendment Order, 1985 and then substituted by the Constitution (8th Amendment) Act, 1985. It came into force on 30‑12‑1985 when proclamation on 5‑7‑1977 was revoked. Article 270‑A was added in the Constitution through 8th Amendment of which was challenged before the Hon'ble Supreme Court in reported case Ghulam Mustafa Khar (PLD 1989 SC 26). The Hon'ble Supreme Court has laid down principle that superior Courts have powers of judicial review qua the actions taken by the Martial Law regime in case the actions are without lawful authority are coram non judice. From this onward political system came into existence, the Article 58(2)b was added in the original Constitution, 1973 through 8th Amendment. The 'President of Pakistan and Governors of Provinces dissolved the National and Provincial Assemblies respectively. The action of President and Governor was challenged before the Hon'ble Supreme Court in Haji Saif Ullah's case (PLD 1989 SC 166), the action of President was declared void, without lawful authority but the Assemblies were not restored. Thereafter, President and Governor again dissolved the Assemblies, the action was again challenged before the Hon'ble Supreme Court by Kh. Ahmed Tariq Rahim's case in (PLD 1992 SC 646) and the same was declared valid. The President of Pakistan and Governors also dissolved National and Provincial Assemblies in the year 1993 which was challenged before the Hon'ble Supreme Court and action of President was declared invalid and Assemblies were restored in Mian Nawaz Sharif's case (PLD 1993 SC 473). It is pertinent to mention here that after restoration of Assemblies Mian Nawaz Shair would remain in powers for one month only and he himself advised the President of Pakistan to dissolve the National Assemblies and Provincial Assemblies on the advice of Governors. The general elections were held and Mohtrama Benazir Bhutto became Prime Minister of Pakistan. The President and Governors again exercised their powers under the Constitution under Article 58(2)(b) dissolved the Assemblies which were challenged by Mahmood Khan Achakzai's case (PLD 1997 SC 426) and Mohtarma Benazir Bhutto's case (PLD 1998 SC 338) and the action was declared valid by the Hon'ble Supreme Court. The General Election was held and Mian Nawaz Sharif was elected as Prime Minister. The present Chief Executive dissolved the National Assemblies and Provincial Assemblies and imposed proclamation in the Country on 12‑10‑1999. This action was challenged by Syed Zafar Ali under Article 184(3) of the Constitution before Hon'ble Supreme Court and the same was finally decided and validity of action of Chief Executive declared valid conditionally reported in Syed Zafar Ali Shah's case (PLD 2000 SC 869). In view of aforesaid discussion we would like to decide the present case. In the present case the action of the respondent No. 1 is validated by the Hon'ble Supreme Court in Syed Zafar Ali's case (PLD 2000 SC 869) Wasim Sajjad and others filed review petitions before the Hon'ble Supreme Court under Article 188 of the Constitution in which they sought review of judgment, dated 12‑5‑2000 rendered by the Hon'ble Supreme court in Syed Zafar Ali Shah's case. The Hon'ble Supreme Court reconsidered the aforesaid case in all prospects and upheld the earlier view taken by the Hon'ble Supreme Court on 6th and 7th February, 2001 and dismissed the review petition reported as PLD 2001 SC 233 (Wasim Sajjad and others v. Federation of Pakistan). It is pertinent to mention here that eleven Judges of the Hon'ble Supreme Court had decided the aforesaid review petitions and validated the action of respondent No.

1. Subsequently in Khan Asfand Yar Wali v. Federation of Pakistan Constitutional Petition No.13‑2000 alongwith other Constitutional petitions in which the vires of the NAB Ordinance were challenged before the Hon'ble Supreme Court. The Honourable Supreme Court upheld the action of respondent No.l qua the present controversy in paragraphs 201 to

210. The relevant observation is reproduced hereunder: ‑‑ "But when the matter discloses a clear nexus between crime/corruption and powerful persons holding public offices which poses a serious threat to the economy as well as the very existence of the country, then to prevent erosion of the rule of law and to take steps for restoration of democracy in the country within time frame laid down by this Court, it will have to be examined whether the mechanism involved for recovery of amounts from the wilful defaulters for reviving the economy is in conformity with the declared objectives of the Chief Executive. Applying the above principles, we are led to irresistible conclusion, after hearing the learned counsel for the petitioners at length, that there was a need for creation of an offence of wilful default and mechanism for the recovery of the same as is purported to have been done under section 5(5) of the impugned order." The appellant wants review of the judgment of the Honourable Supreme Court through Constitutional petition as well as through this I.C.A., rendered by the Honourable Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869). The Honourable Supreme Court, as mentioned above, has dismissed the review petition filed by Waseem Sajjad and others before the Honourable Supreme Court on 7‑2‑2001 keeping in view the situation in the country subsequent to the decision of the Honourable Supreme Court in Syed Zafar Ali Shah's case. Thereafter, as mentioned above, considering the prevailing situation of the country, in NAB Ordinance case and upheld the action of the respondent in Constitutional Petition No. 13 of 2000 filed by Khan Asfand Yar Wali v. Federation of Pakistan. It is pertinent to mention here that the judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. In view of what has been discussed above, this I.C.A. has. no merits and is hereby dismissed. Q.M.H./M.A.K./P‑35/L Appeal dismissed.