P L D 1969 Lahore 786 (PLP)

20. The learned Attorney‑General, to whom I am grateful for the valuable assistance rendered by hint in this case in answer to a call from us, submitted that the Supreme Court was faced with a more or less, similar difficulty in Mohammad Ismail and others v. The State (P L D 1969 S C 241) while interpreting para. 6 (1) of the Provisional Constitution Order of 1969 and they resolved the same by holding that‑ "even though, as a general rule, a Court of law is not authorised to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law‑maker to supply the omission in order to avoid doing a manifest injustice." He submitted that we should act likewise and supply the necessary words in Martial Law Regulation No. 45 so that the conflict, if there be any, between Martial Law Regulation No. 42 and Martial Law Regulation No. 3, as reconstituted by Martial Law Regulation No. 45, be resolved. I have not been able to convince myself that "the true and patent intention of the law giver" is not manifest from the words used in Martial Law Regulation No. 45 nor do I agree that the absence of the words "save as otherwise provided in Martial Law Regulation No. 42" in Martial Law Regulation No. 45 is unintentional. I am, therefore, not prepared to accept the proposition that we are faced with a case of "cassus omissus".

21. As I look at Martial Law Regulation No. 42, I find that it is applicable to cases pending under the ordinary law in any criminal Court. The question is whether this is prospective in operation or does it operate retroactively. Since it is not a mere procedural provision of law, it would act only prospectively unless the contrary intention can be gathered directly or by necessary intendment from the words used in it. "Pending" would signify cases which become pending after Martial Law Regulation No. 42 comes into force and not those which have been pending from a date prior to the enforcement of this T Regulation. The draftsman had, however, added a few more words and it remains to be seen whether those words cover the Regulation into a retroactive piece of legislation. The words are‑ "Irrespective, of whether the case or cases relate to a period before or after the imposition of Martial Law or whether trial has commenced or not." "The first part makes the provision retrospective to the extent that it is made applicable even to cases which relate to a period not only before the promulgation of the Regulation but also before promulgation of Martial Law. This provision concerns itself with the period during which the offence was committed. If, therefore, a case is otherwise covered by Regulation No. 42, at will not be removed from the four corners of its purview simply because the offence happens to have been committed prior to its Promulgation. The second part relates to the commencement of trial. 1t removes any possible objection on the ground of its commence ment or non‑commencement. In other words, a Zonal Martial Law Aministrator passing an order transferring a case need not be deterred in doing so by a mere fact that the trial of the case has not commenced or conversely that it has commenced.

22. The present bases, however, belong to a third category i.e. of those which, though they relate to a period before the imposition of Martial Law, were already pending in a criminal Court on the date when Martial Law Regulation No. 42 was t' enforced. No provision has been made in Martial Law Regulation No. 42 for this category although the law‑giver could have done so if that were his intention. It, therefore, falls within the mischief of "expressio unius est exclusio alteros" (the express mention of one thing implies the exclusion of another). This Maxim is never more applicable than when applied to the interpretation of a statute. It is axiomatic that when a Court is called upon to hold that something which is not expressed in a statute is implied in it. It is under a bounden duty to be careful that in drawing such an inference it does not make the statute' speak where it was intentionally silent and particularly that it does not make it speak entirely contrary to the intention of the law‑giver as can be gathered from the plain words used by him.

23. Keeping in view the solemn obligation imposed upon the Courts by the Maxim, referred to above, can it be said that such a class of cases as the one before us is covered by Martial Law Regulation No. 42? My answer is in the negative. To apply Martial Law Regulation No. 42 to a case which has not become pending in a Court of Law after its promulgation would amour to giving it retrospective effect in that regard although by not including it in the categories enumerated in Martial Law Regulation No. 42 the patent intention of the Chief Martial Law Administrator was not to apply the Regulation to such cases.

24. So far as the present cases are concerned, therefore‑, M. L. R. No. 42 is not applicable and the question of inconsis tency between it and M. L. R. No. 3 as reconstituted by Martial Law Regulation No. 45 would not arise in this limited context.

25. The reason is not far to find. The present regime has, by pronouncements made from time to time left nobody, in doubt about the fact that (assuming that it can do so) there is: no intention whatsoever on its part to curb or curtail the jurisdiction of the ordinary Courts, particularly of the High Court, which has now been exercising it for over a century and has, therefore, attached to it, inter alla, the force of antiquity so that it has become an inalienable part not only of the constitution of the Court itself but of the history of this country in general and` of the Judiciary in particular.

26. I would be failing in my if I did not emphasize at this juncture that Martial Law in this country was imposed with a view to dealing with a situation in the creation of which the Courts had played no part, at all. In fact, if there was one institution, which continued and still continues to enjoy the undiluted appre ciation and confidence of the people, on the one hand and the Government, on the other, it is the judiciary. The malady, which was sought to be cured by the imposition of Martial Law, was germinated and flourishing in places other than Courts of law. That being so, there could possibly be no justification for taking away the powers of such an institution. And that is the reason x why this Court and those subordinate to it have been maintained in their pristine glory by the present Government also. Looked at from this standpoint also, Martial Law Regulation No. 42 is not applicable to cases of the category referred to above in which the present causes fall.

27. There is yet another reason in support of this proposition. It was held in Gha2i and others v. The State and another (P L D 1962 Lah. 662) by a Full Bench of this Court‑ that a right of appeal existing on a day on which a proceeding , or lis commences or prosecution is lodged, is a vested right and that that right is governed by the law prevail ing on that day and not the law prevailing on the date of its decision admits of no doubt. Their Lordships felt fortified by a decision of Supreme Court of Pakistan in Mohammad Ishaq v. The State (P L D 1956 S C (Pak.) 256) in which it was held that‑ "the right of appeal in this country being the creation of a statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or necessary implication." To the same effect is the famous decision of the Privy Council in the Colonial Sugar Refining Company v. Irving (74(905) L J R 77) where their Lordships went even to the extent of holding that‑ "it seems to their Lordships that the question does not admit of doubt. To deprive a suiter in a pending action of an appeal to a superior tribunal which belonged' to him as of right in a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an inference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

28. Since the right to file an appeal is a vested right and since it becomes vested, the moment a proceeding or lis commences or prosecution is lodged a transfer of a case from the ordinary ; Courts to a Special Military Court would entail the loss of that right to move the superior Courts in the normal judicial hierarchy of the country. In a case which is lodged after the promulgation of Martial Law Regulation No. 42 a respondent would always be conscious of the fact that the right to appeal may never accrue if the proceedings are lodged in a Military Court from its very inception and that he array lose the right of appeal if the same is transferred from an ordinary Court to the Military Court if the proceedings commenced against him in an ordinary Court. On the other hand, in a case which became pending before the Martial Law was proclaimed or before Martial Law Regulation No. 42 was enforced, such a possibility could never have even been visualized by any one concerned. It would, therefore, be in the line with the norms of justice that such a case should not be transferable from the ordinary to the Military Courts, and it was with this idea in mind that Martial Law Regulation No. 42 was so worded as not to include cases which became pending before the proclamation of Martial Law Regulation No. 42.

29. The dictum of Ghazi's case was pressed into service before us for supporting the contention that the Full Bench which decided the case interpreted the word `pending' to include cases which have become pending before the extension of the Frontier Crimes Regulation to the Mianwali District. I need not examine this dictum of their Lordships before whom I had the privilege of arguing the case for the State, because that case related to an entirely different set of circumstances. In that case the Frontier Crimes Regulation was not a law which was enacted after the offence was committed. The law existed in the: country and could be extended to any district. It was extended to Mianwali District after the commission of the offence. In this lies the real difference between the facts of that case and the one before us where not only Martial Law Regulation No. 42 was enacted for the first time after the ordinary Courts had seisin of the case but, in fact, a new jurisdiction was created after the offence had been committed.

30. I may in passing, state that section 11 of the Frontier Crimes Regulation, which fell for interpretation in Ghazi's case was not hemmed in by such qualifications as are contained in Martial Law Regulation No. 42 and have been taken note of by me above.

31. The learned Advocate‑General laid much stress upon the fact that Martial Law Regulation No. 3 had come into existence much before Martial Law Regulation No. 42, and, therefore, would have to give way to the latter in the case it was found that both could not stand together in given circumstances. He, time and again, said that Martial Law Regulation No. 45 was only a "Correction Slip". I must confess that the "Correction Slip" argument is beyond me for I have not come across any such argument nor have I been able to appreciate what the earned Advocate‑General meant when he used this expression. It cannot be denied that Martial Law Regulation No. 42 was enforced on 4th May 1969. Martial Law Regulation No. 45 is, therefore, later in point of time and would supervene so far as M. L. R. No. 42 is concerned. Martial Law A Regulation No. 3, in its present form, exists today because of M. L. R. No. 45 and it is therefore, difficult for me to accept the proposition that Martial Law Regulation No. 3 even as reconstituted is not a piece of subsequent legislation.

32. Learned Advocate‑General tried to take a stand on Muhammad Jamil's case (P L D 1965 S C 681) where, in a different context, it was held that the right to cross‑examine matures into a vested right only when the charge is framed. He tried to argue on the basis of this citation that a right of appeal becomes vested only after a conviction is recorded and not before that. I need not dilate upon this proposition because, as I have already indicated above, the Supreme Court had while dealing with the question of an appeal being a vested right unequivocally placed itself on record in 1956 by affirming the decision in Colonial Sugar Refining Company v. Irving and the same has been so understood by the Full Bench in Ghazi's case.

33. I would like to make it clear that the common notion that Martial Law is the will of the Military Commander is not applicable to the circumstances attending the present Martial Law, at all. The sort of Martial Law in which the will of the Military Commander is the law has more than once been dubbed as a state of lawlessness, and rightly so, because the whim of any body, even if he be a Military Commander, cannot be called law. This commonly understood meaning of Martial Law is applicable to a country which has been occupied by the enemy forces and which is ruled by them. There the will of the b Martial Law Commander would be the law. But can it be said that the imposition of Martial Law in this country is synonymous with occupation by the forces of the enemy. The answer would be a clear "No". Martial Law was not imposed by the Chief Martial Law Administrator after having wrested power from the constitutional Government by force. In fact, it was the other way about. The President elected under the Constitution, unfortunately, came t4 the conclusion that "all civil administration and constitutional authority in the country has become ineffective. I am left with no option but to step aside and I leave it to the defence forces of Pakistan which today represent the only effective and legal instrument, to take over full control of the affairs of this country It is your legal and constitutional responsibility to defend the country not only against external aggression but also to save it from internal disorder and chaos. The nation expects you to discharge this responsibility to preserve the security and integrity of the country and to restore normal social, economic and administrative life." It was in these words that the outgoing President handed over power to the Commander‑in‑Chief of the Army who then proclaimed Martial Law. At the time of proclaiming Martial Law the Chief Martial Law Administrator acknowledged, while referring to the former President, that‑ "he, therefore, called upon me to carry out my duty of protecting this country from utter destruction." He went on to say‑ "My sole aim in imposing Martial Law is to protect life, liberty and property of the people and put the administration back on the rails. My first and foremost task as the Chief Martial Law Administrator, therefore, is to bring back sanity and ensure that the Administration resumes its normal functions to the satisfaction of the people. We have, had enough of administrative laxity and chaos, and I shall see to it that this is not repeated in any form or manner. Let every member of the administration take a serious note of this warning." Martial Law was imposed, therefore, with the declared purpose of "restoring sanity", "restoring and saving the country from internal disorder and chaos" and to "ensure that the adminis tration resumes its normal functions to the satisfaction of the people." There is not one word either in the letter of the former President to the Commander‑in‑Chief, or in the speech of the Chief Martial Law Administrator, or even in the Proclamation o Martial Law to suggest that the existing machinery for dispensing justice was found wanting or that it was to be subject to curbs or that a state of affairs was to be brought about in which the will of the Martial Law Commander was to be enforced. The, Martial Law Authorities, and even the Chief Martial Law Administrator himself are bound by the Proclamation, Regulations and Orders as any other citizen in the country. No one including the Chief Martial Law Administrator, can transcend or deviate from the sole purpose of restoring law and order and democracy and it needs no gainsaying that curbing the jurisdic tion of the established Judiciary is not a step in that direction and it is for this reason that the Chief Martial Law Administrator never made any secret of the fact that‑ "the ordinary Courts including the High Court shall exercise their jurisdiction."

34. In a joint opinion of the Attorney and Solicitor‑General, Sir John Campbell and Sir R. M. Rolfe, as to the power of the Governor of Canada to proclaim Martial Law, it was categorically stated that‑ " ..we are of opinion that the prerogative does not extend beyond the case of persons taken in open resistance, and ,with whom, by reason of the suspension of the ordinary tribunals, it is impossible to deal according to the regular course of justice. When the regular Courts are open, so that criminals might be delivered over to them to be dealt with according to law, there is not, as we conceive, any right in the Crown to adopt any other course of proceeding . . . . ." It is hardly necessary for us to add that, in our view of the case, Martial Law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance couples its adoption. The high respect accorded to this opinion in particular and to, that of the holders of these offices in general needs no iteration.

35. The opinion of these learned law officers finds eminent support from the observations of the Earl of Halsbury in Tilonke v. The Attorney‑General of the Colony of Natal (1907 A C 93). His Lord ship was dealing with a petition for Special Leave to Appeal from the judgment of a Court Martial claiming to sit under a declaration of Martial Law before whom the petitioner had been indicated for crimes of sedition and public violence. The petitioner had objected to the trial on the grounds that "he was not a military men, had not been taken in the field, had never taken up arms against the Government, that the state of the country was not such as to justify his being tried before a Court Martial, and that the civil Courts before whom he had a right to be tried had in no way been interrupted in their functions and were then sitting. It alleged that the Court Martial "arrogated to itself jurisdiction" under colour of a proclamation of Martial Law, a Colonial Office Circular of January 26, 1867, and a mandate of the Governor addressed to the Commandant of Militia dated February 11, 1906; but that a state of war did not exist at the time of the proclamation, and that the powers of the common law, were sufficient for the civil power to maintain order. The petitioner submitted that his trial before the military tribunal was without jurisdiction and illegal." The noble Lord observed :‑ "Such acts of justice are justified by necessity, by the fact of actual war; and that they are so justified under the circumstances is a fact that it is no longer necessary to insist s upon, because it has been over and over again so decided by Courts as to whose authority there can be no doubt. But the question whether war existed or not may, of course, from time to time be a question of doubt, and if that had been the question in this case, it is possible that some of the observa tions of the learned counsel with regard to the period of trial and the course that has been pursued, might have required consideration."

36. Martial Law arises from State necessity, and is justified at the Common Law by necessity, and by necessity alone quod necessit as cogit, defendit‑--(what necessity forces, it justifies) Where the case is a case of riot rather than a case of rebellion, as the necessity is less, so the discretion of these concerned is limited. "If any one, suggests a dangar of this doctrine being extended without limit, the answer almost too elementary to call for statement‑is that Courts of Justice must conclusively presume the ordinary process and remedies of law to be sufficient in time of peace." When the Courts are sitting there is no doubt that (i) it is a time of pace (ii) they are sitting in their own right and (iii) not merely as licences of the military power. The jurisdiction of the ordinary Courts, therefore, continues to vest in them and the same cannot and has not been taken away by the Proclam ation of Martial Law. Particularly since it has been imposed in times of peace and for the purpose of quelling riot's and restoring order.

37. My conclusions are as follows :‑ (i) . . . . . . . . . . . . . . No Martial Law Regulation can make provisions contrary to the Provisional Constitution Order. My reasons for saying so are :‑ (a) The Provisional Constitution Order is by virtue of its Article 2, in addition to the Proclamation of Martial Law. In other words, it has the same status as the Proclamation of Martial Law. Since the Proclamation itself is not subject to Martial Law Orders or Regulations, the Provisional Constitution Order can also not be subject to them ; (b) In the matter of the Governance of the country by the 1962‑Constitution, Martial Law Regulations or Orders made by the Chief Martial Law Administrator can make provision` contrary to the said Constitution. Such provision can' however, not be contrary to the said specific provisions of Provisional Constitutions Order as is clear from the following words in Article 3(l)‑ "the State of Pakistan shall, except as otherwise provided by the Provisional Constitution Order itself, be governed as nearly as may be in accordance with the said Constitution." (c) The jurisdiction of the Supreme Court and the High Court is recognised by Article 6 of the Provisional Constitution Order and is, therefore, covered by the expression‑-- "except as otherwise provided in this order." 1 is therefore, not open to vary this at all; be it by a Martial Law Regulation or Order. (ii) The Provisional Constitution Order is in addition to the provisions of the Proclamation and neither in derogation of it nor subject to it. It can, therefore, be amended not by a Martial Law Regulation or Order but by amendment of the Provisional Constitution Order itself. Whether the President and Chief Martial Law Administrator, who is himself not above the law, can now at all amend it is a question which will be answered when the time comes to do so. (iii) It is correct that all the powers of the High Court enjoyed by it' immediately before the abrogation of the j Constitution continue to vest in it and. as has already been indicated above, in the present state of law the transfer of the cases out of which the present reference has arisen to the Special Military Court was beyond the Jurisdiction of the person who passed the order of transfer. (iv) Cases which became pending before the ordinary Court before the imposition or Martial Law Regulation No. 42, cannot be transferred froth the ordinary Courts: (v) No Martial Law Authority has been invested with powers under section 561‑A of the Code of Criminal Procedure nor have any similar powers been conferred upon him. (vi) Since the entire Constitution of 1962 has been preserved, subject to the exceptions referred to in the judgment, and Article 2 is not one or them, the said Article continues to remain in force. In fact, it is for the restoration of conditions in which every body is treated according to law that Martial Law ha been imposed according to the avowed declarations of the former and present Presidents. (vii) If Martial Law renforced to quell riots and acts, of indiscipline and to restore normalcy, " order and democracy in times of peace the ordinary Courts continue to exercise their jurisdiction over civil and criminal matters and the same cannot be made the subject‑matter of curbs. When the ordinary Courts r arc open and functioning, persons accused of offences against ordinary law have to be brought before them, and them alone, to be dealt with according to law and, to quote the learned Law Officers named above, "there is not, as we conceive, any right in the Crown to adopt any other course of proceedings."

38. These cases may now, therefore, be returned to the Darned Single Judge for disposal in accordance with the observations made above. BASHIRUDDIN AHMED, J.‑

Mir Hassan and another, who were accused in cases under sections 420 acid 468, P. P. C. read with section 5(2) of the Prevention of Corruption Act 11 of 1947, in the Court of Central Special Judge, Rawalpindi, petitioned to this Court under section 561‑A, Cr. P. C. for the quashment of proceedings on the ground inter alia that no criminal offence was disclosed and the continuance of proceedings against .them amounted to an abuse of the process of the Court.

2. On 24‑5‑1969, Mr. Anwar, learned counsel for Mir Hassan and another filed Cr. Misc. No. 2952 of 1969, in which he raised certain important points, which the learned Single Judge, who was seized of the main petition, incorporated in extenso in his order dated May 25, 1969, and referred the matter to the learned Chief Justice for constituting a. larger Bench for the decision of the questions raised, as he considered the same to be of general public importance.

3. We need not refer here in detail to all the contentions raised before the learned Single Judge except as to‑ whether the cases against the petitioners which related to the period prior to the imposition of Martial Law, and had not only been pend ing in the Court of the Central Special Judge, but had also been taken cognizance before the imposition of Martial Law, had been properly transferred to the. Special Military Court by the Martial Law Administrator, Zone A, for trial. Secondly, whe ther the Provisional Constitution Order preserved all the powers and jurisdiction of the High Court including their inherent powers under section 561‑A, Cr. P. C. when there was no other provision comparable' to it; and thirdly, R‑hat was the effect of Article 2 of the late Constitution which was preserved by Article 3 of the Provisional Constitution Order and that of Article 3 of the Provisional Constitution .Order vis‑a‑vis Article 6(2) of the said Order. The case of the petitioners was that the Capital Development Authority, Rawalpindi, actuated by malice had lodged with the Special Police Establishment a report against the petitioners, on the basis of which 12 cases were filed in the Court of the Central Special judge, Rawalpindi, on July 19, 1967. The peti tioners moved applications in all those cases on April 28, 1969, under section 561‑A, Cr. P. C. for quashment of the proceedings. The learned Single Judge, who dealt with the petitions ordered the investigating officer to be sent for alongwith the relevant records. The matter was adjourned to May 26, 1969.

4. In older to appreciate the questions referred to the Full Bench, it would be appropriate to refer to the circumstances, which led to the imposition of Martial Law in the country. As a result of violence, riots and resistance to law in the wake of political and labour unrest, it became evident that it A as not possible for the civil administration of the country to function. Therefor, F. M. Muhammad Ayub Khan the former President of Pakistan, stepped aside and invited General A. M. Yahya Khan, Commander‑in‑Chief of the Pakistan Army, to take over the country and he proclaimed Martial Law on March 25, 1969. By this Proclamation of March 25, 1969, the Chief Martial Law Administrator annulled the Constitution of. Islamic Republic of Pakistan (1962) dismissed the Central and Provincial Cabinets and both the Provincial Assemblies. With the declar ation of Martial Law throughout the country, General A. M. Yahya Khan, Commander‑in‑Chief of the Pakistan Army, assumed all the powers of the Chief Martial Law Administrator. This Proclamation validated all laws, other than the Constitution that were in force before it and the restoration of jurisdiction of all Courts and Tribunals including the Supreme Court and the High Court. The Proclamation contained further directions that no Court shall call in question any Martial Law Regula tion or Order or any finding, Judgment or order of a Military Court and that no writ or other order would be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator. In addition, it also contained that the Judges of the Supreme Court and the High Court, the Comptroller and the Auditor‑General, the Attorney‑General and the Advocate- General, who were in service of Pakistan, were to continue to hold the offices until otherwise directed and that all other officers and authorities appointed, constituted or established under the late Constitution, shall continue and shall exercise and perform all powers and functions which they would have exercised and performed had the Constitution not been abrogated.

5. Simultaneously with the Proclamation of the Martial Law in the country, the first 26 Regulations were promulgated. These Regulations concerned the administration of Martial Law, the organization of Martial Law Authorities, the creation of Special Military and Summary Military Courts and the punishments for the existing or newly‑created offences.

6. The Provisional Constitution Order was promulgated by the Chief Martial Law Administrator on April 4, 1569. This was deemed to have taken effect immediately on the making of the Proclamation on the 25th day of March 1969. Article (3) of the Order is material and the relevant portion from it runs :‑ (1) Notwithstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, hereinafter referred as to the said Constitu tion, by the Proclamation and subject to any Regulation or Order made from time to time, by the Chief Martial Law Administrator, the State of Pakistan shall, except as otherwise provided in this order, be governed as nearly as may be in accordance with the Constitution. (2) .. (3) Paragraphs 2, 4, 5, 6, 7, 8, 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter I, Part IL of the said Constitution shall stand abrogated and all proceedings pending in any Court, in so far as they are for the enforcement of those Rights shall abate. (4)

7. Mr. M. Anwar, learned counsel for the petitioners submitted that the present Martial Law is more constitutional than the Martial Law imposed in the country in the year 1958 because Article 2 of the 1962‑Constitution had been preserved as enshrined in the 'Provisional Constitution Order, 1969. He submitted that the Proclamation provided that all the Courts and Tribunals in existence immediately before tfie7abrogation of 1962, Constitution "shall continue and exercise all their powers and jurisdiction which they would have exercised had the Constitution not been abrogated'". He contended that the Chief Martial Law Administrator had also placed certain restrictions on him self with the promulgation of the Provisional Constitution Order, as by allowing Article 2. of the late Constitution to stay, the people of the country had to be governed in accordance with law. He submitted that a Special 'Military Court was con stituted by the order of 11ie Zonal Martial Law Administrator and though in view of clause 3 (4) of the Provisional Constitution Order, the Chief Martial Law Administrator was immune from the process of law, the order of a Military Court acting in excess of its jurisdiction was open to scrutiny by the High Court. According to the counsel, the order of transfer or a case from the ordinary Court of Law to a Military Court was not sacrosanct. Referring to the instant case, he contended that the cases were pend ing before the Special Judge who was not an ordinary Court and the Court of a Special Judge under the Pakistan Criminal Law (Amendment) Act was a Court of special jurisdiction and that the Pakistan Criminal Law (Amendment) Act, under which the Special Judge was proceeding was not ordinary‑law. He continued that the phrases "ordinary law" and "criminal Court" in Martial Law Regulation No. 42 had special connotation. He contended that the High Court inter alia had appellate, revisional and supervisory powers. In addition, the High Court had inherent powers under section 561‑A, Cr. P. C. He submitted that the accused in the instant case had invoked the jurisdiction of this Court under section 561‑A, Cr. P. C. to procure a pronounce ment as to whether on the facts stated in the challan a criminal offence was disclosed or not and the relief by way of quashment of proceedings was .an extraordinary relief which was available from the High Court and nowhere else. Counsel also argued that the petition for quashment of proceedings was not covered by sub‑para. (2) of Martial Law Regulation No. 42 and the abatement of such proceedings was not understandable if com parable relief was not available in a Military Court. Lastly, he argued that the special jurisdiction of the High Court under section 561‑A, Cr. P. C. was well known and the Martial Law Regulation No. 45 which recons ituted Martial Law Regulation No. 3 had reserved it. He contended further that Martial Law Regulation No. 42, which deals with transfer of cases to Military Court was a procedural law and it would not take away any vested right, which could be taken away only by express provisions or by necessary intendment. He added that the Chief Martial Law Administrator had issued Martial Law Regulation No. 45 after Martial Law Regulation No. 42 and there was a clear conflict between the two and it is for the superior Courts of the country to see the effect of Martial Law Regulation No. 45 vis‑a‑vis Martial Law Regulation No. 42.

8. Learned Attorney‑General stated at the Bar that the intention of the Chief Martial Law Administrator has, always been to preserve the jurisdictions of the Courts‑.including the High Court and that the jurisdiction of the Courts has been retained, but subject to the Martial Law Regulations and Orders. He continued that the order passed by Military Court in excess of its jurisdiction was open to scrutiny by this Court. He, however, laid great emphasis that no Court is permitted to call in question the Martial Law Regulations and Orders and that Martial Law Regulations Nos. 42 and. 45 were not inconsistent with each other. Likewise, the learned Additional Advocate‑General argued that the petitioners could not challenge the Martial Law Regulation, nor a writ could be issued against a Martial Law Authority and that the petitioners had endeavored to seek indirectly what they could not achieve directly. He stated that Martial Law Regulations Nos. 42 and 45 were not repugnant to each other and that Martial Law Regulation No. 45 was not promulgated to supersede Martial Law Regulation No. 42 and that, in fact, Martial Law Regulation No. 3 was reconstituted and renumbered as No. 45 to remove ambiguity, if any. He emphasised that if there was repugnancy between Martial Law Regulations Nos. 42 and 45, it should be resolved in a manner that both should stand: Finally, he argued that Martial Law Regulation No. 42 could be better worded and if there was any lacuna, the Court should normally lehti towards constitutionality of a statute rather than striking it down, particularly, when the intention of the Legislature was to correct the mischief. Learned Advocate‑General submitted that the superior Courts should interpret the Martial Law Regulations and Orders in such a manner that there should be no conflict in them. He argued that with the promulgation of Martial Law Regulation No. 45, which reconstituted Martial Law Regulation No. 3, the Chief Martial Law Administrator had not touched any other Martial Law Regulation. If he had any intention of doing so, he would have expressly said so. He argued that the Constitution of 1962 had been abrogated2nd the entire fabric leas demolished and was reconstituted with certain limitations and that the Proclamation of March 25, 1969, provided that no Court could call in question any Martial Law Regulation or Order, finding or‑ judgment of a Military Court and no writ or other order shall be issued against the Chief Martial Law Administrator or any Martial Law Authority. He maintained that if any one was aggrieved by the order passed by the Martial Law Authority, he should apply to the higher Martial Law Authority and not to this Court. He argued that the petitioners has no vested right to be tried by a particular forum and the Legislature was competent to determine the forum for trial and that the right of appeal did not accrue to them the moment cognizance was taken by the Special Judge. Finally, he urged that a "vested right" could not depend upon any contingency.

9. Most of the arguments addressed by the Advocate -General were unintelligible. Neither the Attorney‑General nor the Additional Advocate‑General supported the correctness of the proposition that this Court was precluded from interpreting the Martial Law Regulations. We now proceed to examine the" remaining contentions.

10. It is significant that Article 2 of the 1962‑Constitution was kept intact. It declares that "every citizen of Pakistan is entitled to the protection of the law and to be treated in accordance with law and only in accordance with law. . ." The Article provides that no person shall be deprived of life, liberty, body, reputation or property without due process of law. It further declares that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person or affecting his profession, trade or business must rely on some law to justify his action. In other words, every public functionary or person must show legal authority for interference with the right of another person. Thus a direction or order by a public functionary would be invalid if it does not have the backing of a valid contemporaneous law. The Chief Martial Law Adminis trator by preserving Article 2 of the 1962‑Constitution had made it clear once for all that the intention of the Government was to act in accordance with law. Therefore, the action of any authority including Martial Law Authority howsoever high he may be, if it had not the backing of a constitutional provision was not immune from being struck down by the Courts of the country.

11. It would be pertinent, at this stage, to understand the connotation of the words "State" and the "Martial Law" as they would be relevant in the context. The conception of a State proper

in contradistinction to colonies

is in existence when the people is settled in a country under its own sovereign Government. The conditions which must obtain for the existence of a State are, therefore, four There must, first, be a people. There must, secondly, be a country, in which the people have settled down. There must, thirdly, be a Government‑--i.e., one or more persons, who are the representatives of the people and rule according to the law of the land. There must, fourthly and lastly, be a sovereign Government. Bodin, in his celebrated work De la Republique, which appeared in 1577, defined sovereignty as `the absolute and perpetual power within a State'. According to Bodin, such power is the supreme power within a State without any restriction, whatever, except the Commandments of God and the Law of Nature. No constitution can limit sovereignty, which is an attribute of the King in a monarchy and of the people in a democracy.

12. Pakistan is a State proper and we now proceed to examine whether after the imposition of Martial Law in the country, the sovereignty still vests in the people. Martial Law, as defined in Wharton's Law Lexicon, "means the suspension of ordinary law and the Government of a country or part of it by the Military Tribunals". The term "Martial Law" is also sometimes used as meaning the common law right of the Crown to repel force by force in the case of insurrection, invasion, or riot and to take such exceptional measures as may be necessary for the purpose of restoring peace and order. In common parlance, Martial Law generally means of Military occupation of occupied territory and in that context Martial Law is understood to mean the will of the Commander. In a country, where the army takes over to suppress riots or disorder and to restore peace and order by the proclamation of Martial Law, it would be described as law of necessity, which must surrender to the rule of law. Therefore, it follows that even if there is a Martial Law rule in the country, such rule is not arbitrary or uncontrolled by principles nor is it the simple and pure will of the Commander. In this country, Martial Law was introduced to secure general peace, to curb riots and to stop resistance to the law. The person assuming the power is to ascertain the will of the people, their settled habits and sentiments and to make laws and Regulations to gain its ends. Thus, in our view, where the army of a country proclaims Martial Law to curb riots, tumults and violence to law, sovereignty still continues t9 vest with the people. To quote in the words of Mr. Justice Hamoodur Rahman (now the Chief Justice of Pakistan) in Muhammad Afzal v. Commissioner, Lahore Division (P L D 1963 S C 401) :‑ "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."

13. With this background, we now proceed to examine Martial Law Regulation No. 42, which was promulgated by the Chief Martial Law Administrator on May 25, 1969. The Regulation reads :‑ "(1) A Zonal Martial Law Administrator may direct that any case or class of cases under the ordinary law pending in any Criminal Court; irrespective of whether the case or cases relate to period before or after the imposition of Martial Law or whether trial has commenced or NOT, shall be transferred for trial to a Military Court specified by him and the Military Court shall try the case according to its own procedure. Where a case in which trial has commenced is transferred, the Military Court to which the case is transferred, shall NOT, by reasons of such transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer, and may act on the evidence already recorded by or produced before the criminal Court from which the case has been transferred. (2) All applications, of whatever nature, made to any Court including a High Court and all proceedings connected with such applications shall abate."

14. In pursuance of the aforesaid Regulation, Martial Law Administrator, Zone A, passed orders on May 21, 1969, directing the cases pending against the petitioner in the Court of the Central Special Judge, Rawalpindi, to be transferred with immediate effect to the Special Military Court No. 1, Sector 2, for trial.

15. We now proceed to consider the validity of the order passed by the Zonal Martial Law Administrator transferring the cases pending against the petitioners from the Court of the Central Special Judge to the Special Military Court for trial.

16. The cases related to the period prior to the imposition of Martial Law which was proclaimed in the country on March 25, 1969. The Central Special Judge had already taken cognizance of those cases. With the institution of petitions under section 561‑A, Cr. P. Code for quashment of proceedings in all those cases, the High Court was seized of the matter in exercise of its extraordinary jurisdiction.

17. As a result of Proclamation of Martial Law the 1962 Constitution was abrogated, but despite abrogation of the Constitution and subject to Regulations and Orders made by the Chief Martial Law Administrator, paragraph 5 of the Proclamation provided for continuance of existing laws. Similarly all Courts and Tribunals in existence were allowed to exercise all the powers and jurisdiction. The relevant portion of paragraph 5 of the Proclamation of Martial Law is reproduced below for the sake of convenience :‑ "Notwithstanding the abrogation of the Constitution and subject to Regulations or Orders made by the Chief Martial Law Administrator‑ (a) all laws, including Ordinances, Martial Law Regulations, orders, rules, bye‑laws, regulations, notifications and other instruments, in force immediately before the abrogation of the Constitution shall continue in force. (b) all Courts and Tribunals in existence immediately before the abrogation of the Constitution shall continue and exercise all their powers and jurisdiction which they would have exercised had the Constitution not been abrogated ; (i) no Court shall call in question any Martial Law Regulation or Order or any finding, judgment or order of a Military Court ; and (ii) no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Mirtial Law Administrator. (c) and (d) . . . . , . ." We are tempted to reproduce Article 6(2) of the Provincial Constitution Order which runs:‑ "Save as provided in clause (l), the Supreme Court, a High Court and all other Courts and Tribunals shall have and exercise the same powers and jurisdiction as they had immediately before the issue of the Proclamation." It is thus clear that the jurisdiction of this Court to entertain petitions under section 561‑A, Cr. P. C. remained intact and the petitioners could invoke the extraordinary jurisdiction of this Court.

18. Since Martial Law Regulation No. 3, as reconstituted by Martial Law Regulation No. 45, on May 28, 1969, has a bearing on the case, it would be advantageous to reproduce it. "Martial Law Regulation No. 3 issued by the Chief Martial Law Administrator, is hereby reconstituted, and shall be deemed always to have been so reconstituted, as follows :‑ No. 3.‑Notwithstanding anything contained in these Regulations, the ordinary Courts including a High Court shall exercise their respective jurisdiction in respect of (a) Offences other than offences created by these Regulations, and (b) Cases relating to offences created by these Regulations which are transferred to such Courts for trial."

19. On a plain reading of the reconstituted Regulation, referred to above, it is clear that the criminal Courts, as by lawn established, will continue to exercise jurisdiction with respect to (a) offences ‑other than offences created by these Regulations and; (b) cases relating offences created by these Regulations which are transferred to such Courts, for trial. The words notwith standing anything contained in these Regulations" occurring in Martial Law Regulation No. 3 and again in the reconstituted Regulation No. 45 are significant. By necessary intendment, the power to transfer pending cases from the criminal Courts under the ordinary law by the Zonal Martial Law Administrator have been taken away completely by the reconstituted Martial Law Regulation No.

45. We are clear in our minds that the Martial Law Regulation No. 42 could not be invoked to transfer pending cases against the petitioners from the Court of the Central Special Judge to the Special Military Court, Rawalpindi for trial.

20. We have no cavil with this proposition of law that no Martial Law Regulation or Order could be challenged in this Court, but it must be remembered that there is nothing in the Proclamation or the Provisional Constitution Order or the Martial Law Regulations which bars the superior Courts of the country from interpreting the Martial Law Regulations. It is inherent jurisdiction of the superior Courts of the country to interpret law. If an order is passed by a Martial Law Authority or a Military Court which is in excess of or without jurisdiction its legal position is open for examination by the High Court, or the Supreme Court, though these Courts would not and could not interfere if the order in question was one with jurisdiction and had the sanction of the Provisional Constitution Order behind it. This was the view that prevailed in a parallel situation under the old Martial Law of 1958 with the High Court of West Pakistan in cases, reported as Manzoor Elahi v. The State (P L D 1959 Lah. 243) and Sher Muhammad v. Nasir‑aid‑Din (P L D 1960 Lah. 583). In any event, the question of the scope and effect of the Martial Law Regulations would be eminently fit for determination by the superior Courts with a view to adjudge whether an order purporting to have been passed under a particular Martial Law Regulation was with or without jurisdiction. The ouster of existing jurisdiction of a superior Court of record, such as the High Court, must not be too readily inferred, without express words providing for such ouster or without necessary intendment of a new law.

21. It will thus be clear that the jurisdiction of the High Court to entertain petitions under section 561‑A, Cr. P. C. remained intact and was available to the petitioners. With the institution of the cases in the Court of the Central Special Judge, a right had accrued to the petitioners to appeal to the High Court in case of a conviction and also eventually to challenge the conviction, if necessary, by a petition for special leave to the Supreme Court of Pakistan. The petitioners had in fact filed applications under section 561‑A, Cr. P. Code, in the High Court before Martial Law Regulation No. 42 was promulgated and the petitions had been entertained by this Court to examine if no offence could be made out on the basis of allegations made against the petitioners. The abrogation of the 1962‑Constitution by the Proclamation of Martial Law in no way deprived the petitioners of the benefit of Article 2 of the late Constitution. The petitioners, therefore, have the inalienable right, as citizen of Pakistan, to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law.

22. In view of the language used in Regulation No. 45, the jurisdiction of this Court to make orders under section 561‑A of the Code of Criminal Procedure in a suitable case despite any thing contained in the Martial Law Regulations including Martial Law Regulation No. 42, is still there. If the law is changed during the pendency of an action, the principle that governs the situation would be that the rights of the parties are to be decided according to the law as it existed when the action P was begun, unless the new law shows a clear intention either by express words or by necessary intendment to vary such rights. This principle was affirmed by the Supreme Court in State v. Muhammad Jamil (PLD1965SC681). It was pointed out in that case by the court that if a statute deals merely with the procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. If, however, the new law affects changes, which amount to more than a mere matter of procedure, i.e. if it touches a right in existence at the time of the passing of the new Act, an aggrieved party would be entitled to raise a successful challenge to retrospective effect being given to the Act. The same principle was affirmed by the Federal Court in Punjab Province v. Lala Sita Ram and others (PLD1956FC157) and the Supreme Court in Muhammad Ishaq v. The State (P L D 1956 S .C (Pak.) 259) and again in Muhammad Aslam v. The State (P L D.1967 S C.259). The same principle was enunciated by the Privy Council in Delhi Cloth and General Mills Co. Ltd. v. Income‑Tax Commissioner, Delhi and another (A I R 1.927 P C 247) and in the well‑known case of the Colonial Sugar Refining Co. v. Irving (1905 A. C169). A Full Bench of the Lahore High Court in Ghazi v. The State (P L D 1962 Lab. 662) also decided to the same effect.

23. The principle is stated in almost identical terms by the Text‑Book Writers. Reference may be made with advantage to Halsbury's Laws of England, 3rd Edition, Vol. 36, pages 423 and 426; Crawford on the Interpretation of Laws, 1940 edition, pages 568 to 646; Craies on Interpretation of Statutes, 5th Edition, pages 370 and 371, Maxwell on the Interpretation of Statutes, 1962 Edition, pages 212, 216, 217 etc., and Corpus Juris, Vol. 59, page 1174.

24. At page 369 of Interpretation of Statutes by Craies, the following comments occur :‑ "So careful are the Courts in endeavouring to protect `vested rights' that we find that in several cases Judges have refused to allow statutes to have a retrospective operation, although their language seemed to imply that such was the intention of the Legislature, because if the statutes had been so construed, `vested rights' would have been defeated." At page 368 of the book, the learned author says that there is a presumption against the taking away of the `vested rights' to be raised initially. The instances of several such cases are given. At page 205 of interpretation of Statutes by Maxwell's book, the following occurs :‑ "'Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, other wise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. But if the language is plainly retrospective, it is laid down that regard roust be paid to the dominant intention."

25. There is no dispute that retroactive legislation can be made, but the rule of construction which the Courts have evolved in regard to the interpretation of the retroactive effect of legislation on what are called "vested rights" is that al legislation is presumed to be prospective unless by express words G or by necessary intendment the Court finds that the legislation in question is calculated or is designed to have retrospective effect and then too no more effect by way of retrospective opera tion could be given to it, than is absolutely necessary.

26. There is a string of rulings that a statute cannot be so construed as to take away the "vested rights" unless there is an express provision to that effect or unless such a result follows H as a necessary implication of any new statute.

27. On examining the provisions of Martial Law Regulation No. 42 alongwith Martial Law' Regulation No. 45, it is quite obvious that the law‑giver did not intend to give it. retrospective effect. The two Regulations cannot stand together and if one of them is to give way to the other, then obviously the decision should be in favour of upholding Martial Law Regulation No. 45, which was affirmed in its full force after Martial Law I Regulation No. 42 came on the statute book. If the two provisions are contrary to each other, then the principle is that the earlier one would give way to the later in pursuance of the maxim: Legis posteriores priores contrarias abrogant. See Ahmad Saeed Kirmani v. Fazal Ilahi, Speaker, West Pakistan Assembly (P L D 1956 Lab. 807).

28. We now proceed to examine the effect of clause (2) of Martial Law Regulation No.

42. If the interpretation of this clause by the law officers of the Government were to be accepted, it would mean that the petitions for quashment of proceedings in the High Court under section 561‑A, Cr. P. C. also abated on the order of transfer being passed, but such an interpretation would again interfere with a further right that had already accrued to the petitioner in this case. The right to quash proceedings pending in a criminal Court vests exclusively in the High Court. Under section 561‑.A, Cr, r. Code, the Special Military Court to which the cases have been transferred would have no such power. If the High Court found that the petitioners, contentions were well founded that the proceedings before the Central Special Judge amounted to an abuse of the process of law, the result would be that there will be in fact no case, which can be the subject‑matter of a transfer order. The words in clause (2) of the Regulation receive a narrow interpretation and, in our opinion, the word "application" occurring in clause (2) of the Regulation means applications of ancillary nature, such as right to ad interim question of bail or custody of property etc. pending decision in the main case. It cannot be held to compre hend applications in the nature of quashment of proceedings which go to the root of the case and which might put end to the case itself. We, therefore, hold that the jurisdiction of the High Court under section 561‑A, Cr. P. Code was allowed to remain intact by the Proclamation, the Provisional Constitution Order and Martial Law Regulation No.

42. As no comparable relief is available in any other Court including Special or Summary Military Court, the right which vested in the petitioners could not be taken away by Martial Law Regulation No. 42.

29. The Special Judge appointed under the Pakistan Criminal Law (Amendment) Act, 1958, is a Court of special jurisdiction, its jurisdiction being confined only to a specific class of cases under a prescribed procedure. In Muhammad Ayub Khuhro v. Pakistan (PLD 1960 SC 237) it was held that a Court of a Special Judge was neither of tire status of a High Court nor that of a criminal Court constituted under the Criminal Procedure Code. Martial Law Regulation No. 42, therefore, would not be attracted to this category of cases pending in the Court of Special Judge. Accordingly, our answers to the questions formulated referred to the Full Bench are as follows :‑ (i) That the order transferring the cases from the Court of the Central Special Judge to the Special Military Court, Rawalpindi, was defective on the legal plane and is without jurisdiction, in view of the Provisional Constitution Order and Martial Law Regulation No. 3, as reconstituted by Regulation No. 45. (ii) That the promulgation of Martial Law Regulation No. 421, had not in any manner whittled down the power or curbed the jurisdiction of the High Court, as the Provisional Constitution Order cannot be subjected to Martial Law Regulations or Orders, and the jurisdiction of the superior Courts of the country had been recognized by Article 6 of the Provisional Constitution Order, which cannot be cut down by any Martial Law Regulation or Order. (iii) That as Article 2 of the 1962‑Constitution still holds the field, therefore, any direction or order of any authority including Martial Law Authority would be invalid if it had not the backing of a constitutional provision.

30. As a result, the reference is returned with the above answers to the learned Single Judge to decide the petitions under section 561‑A, Cr. P. Code in accordance with Law. These cases shall now be returned to the learned Single Judge for being disposed of in the light of the conclusions arrived at in the two judgments delivered in this case, on which all three of us are agreed. Order accordingly.