MUMTAZ ALI BHUTTO Versus DEPUTY MARTIAL LAW ADMINISTRATOR

1. FAKHRUDDIN G. EBRAHIM, J .‑The petitioners are front line leaders of the Pakistan People's Party and this Petition calls into question their detention under Martial Law Order 12 by the respondent Deputy Martial Law Authority Sector 1. The orders impugned in this Petition are the two orders of detention dated 31st March, 1978 and its purported extension on 28th June, 1978, during the pendency of this Petition, for a further period of 90 days.

2. Before coming to the merits of the case I may refer to certain preliminary objections raised on behalf of the respondent as to the main tainability of the present Petition. Firstly, the frame of the Petition was objected to on the ground that one petition under Article 199 of the Constitution was not maintainable by the petitioners for they call into question separate independent detention orders in relation to each of the petitioners. Mr. Abbas Farooqi, the learned counsel who argued this objection referred to several decisions in which it was held that two or more persons cannot join in a single petition to enforce separate claims. In every case referred to, it is significant to note that the prayer was for a writ of mandamus or certiorari, while the present is a petition in the nature of the habeas corpus and the frame of the petition became subject‑matter of controversy for it allegedly deprived the State of its revenue as only one court‑fee had been paid though the petitioners were several. In the present case the question of court‑fee does not arise for the petitioners are in detention. It is well settled that in so far as the exercise of jurisdiction in the nature of habeas corpus is concerned all that is required is that information be laid before the Court that a person or persons are held illegally and it becomes the duty of the Court to examine the legality of the detention. This information may come to the Court aliuende and not even by the persons detained, for under) Article 199(l)(b) of the Constitution, the person laying the information need not be an aggrieved person. What is more important, however, is that it is not even the respondent's case that he has been in any way prejudiced by the joint petition and 1, therefore, decline to entertain this objection, a hick is at best a technically, particularly when we are concerned with personal liberty of an individual.

3. The second objection was that the petition was not supported by an affidavit which is the requirement of the rule in so far as an application under section 491, Cr. P. C. is concerned. The relevant rule, however, is rule 1 of Part I of Chapter IV‑G, Volume V, High Court Rules, which specifically provides that a habeas corpus petition will be entertained, though not supported by an affidavit and that such petition will be placed before B the Judge for orders. In the present case the petitioners could not file the affidavit for they were in detention and when permitted, did file the rejoinder affidavit in which they have affirmed the statements made in the] petition. The objection at best is of an inconsequential technical nature and should be left to rest at that.

4. Thirdly, it was contended that the petition suffers from non joinder of parties, namely, Chief Martial Law Administrator. It was argued that in several paragraphs of the petition the petitioners have made stringent criticism of the Chief Martial Law Administrator and also attributed to him mala fides and, therefore, Chief Martial Law Administrator was a necessary party to these proceedings. The petition does not challenge any order made) by the Chief Martial Law Administrator and since the petitioners concede that it is not their intention to obtain any finding on these allegations, which in any event I would have refrained from giving, the Chief Martial Law, Administrator is not a necessary party to the present proceedings.

5. Lastly, it was contended that the petitioners have failed to resort to an adequate alternate remedy, namely, a representation to the detaining authority expressly provided for in Martial Law Order 12. Mr. Pirzada rightly pointed out that the representation was not an effective or adequate remedy inasmuch as Martial Law Order 12 does not oblige the respondent to furnish to the petitioners grounds of detention and in the present case admittedly no such grounds were furnished to them. Moreover, a right of representation not only does not carry with it a right of personal hearing to the detenu but there is not even an obligation in the detaining authority to consider the representation made. This Court in the case of Abdul Hamid v. District Magistrate, Larkana (PLD 1973 Kar 344) regarded to the right of making a representation, with a right of personal hearing preceded by furnishing of grounds to be an inadequate alternate remedy. In the present case for reasons aforesaid the remedy is all the more inadequate.

6. Before coming to the merits the first question that arises for our consideration is the relationship between the two orders of detention dated 31‑3‑1978 and the orders dated 28th June, 1978 extending the detention of the petitioners for another period of 90 days. The contention of Mr. Zaboorul Haq, the learned Advocate‑General was that the later two orders of 28th June, 1978 only purport to be extensions for they are in law fresh orders of detention and if these are found to be valid it is unnecessary t:) examine the contentions raised by Mr. Pirzada as to the illegality of the original orders of detention. Mr. Pirzada, on the other hand contended that the latter two orders are extensions and if he demonstrated in showing that the original orders are illegal their present detention must fail in consequence thereof. We may at once state here that in so far as the material on which the orders of detention dated 31st March, 1978 and its purported extensions dated 28th June, 1978 are concerned, it is of the same character, namely, the petitioners' statements in Court made in the course of proceedings in Constitutional Petition No. 807 of 1977 filed by Begum Nusrat Bhutto, challenging the detention of the petitioners by the Chief Martial Law Administrator under Martial Law Order 12. In that petition the petitioners bad made very long oral statements supplemented by written memorandums, of which only a small portion appeared in the Press, which Press reports together with the noting of the two members of the Armed Forces, namely, Major Mumtaz Hussain and Col. Afzal Khan constituted the material before the detaining authority when the orders dated 31‑3‑1978 were made. When it came to the extension of the petitioners' detention by orders dated 28th June, 1978 the detaining authority had in addition, the actual memorandums of the petitioners' statements, which together with fresh notes prepared by another officer of the Armed Forces, Major Salman and the earlier Press Reports,. became the material for their further detention of 90 days. The contention of the learned Advocate‑General was that though the character of the material before the detaining authority on both the occasions was the same, on the latter occasion it was more extensive as including the entire written statements filed by the two petitioners running into 139 pages and altogether different notes put up by Major Salman and, therefore, the orders of extension were in fact fresh orders of detention. In support of his contention the learned Advocate‑General invited our attention to the following observation of the Federal Court in the case of Arbab Muhammad Hasham Khan v. The Crown (PLD 1954 F C 1) :‑

2. ... that when an order purports to be one of extension it cannot be .regarded as an original order unless there be circumstances that compel us to such a conclusion."

3. The learned Advocate‑General also relied on the following observation of the Lahore High Court in the case of Ghulam Ahmad v. Punjab Province and another (PLD 1976 Lah. 773) :‑

4. "It must be mentioned at the very outset that mere termination of a detention by the rescission of an earlier order and resumption thereof under a fresh order does not necessarily mean the commencement of a fresh detention. The actual physical discontinuation of detention for a few minutes or a few hours or even for a longer period has no bearing on the question of the continuity of the detention. What is in fact basis to a detention is the material on which it is based. It is the material alone which should determine whether a subsequent detention is the continuation of the earlier one and not the fact that the detenu was put out of jail for a certain length of time and then placed again under custody." (Underlining' is mine).

5. In the present case since the material before the detaining authority when making the orders dated 28th June, 1978 by far exceeded the material before it when the orders dated 31‑3‑1978 were made, in my humble view it must follow that the orders dated 28th June, 1978 though purporting to extensions of the earlier detention in fact amounted to fresh orders of detention and the petitioners' continued detention under Martial Law Order 1 g will have to be determined on the basis of the validity of the orders dated 28th June, 1978 for the settled law is that‑ "if at any time before the Court directs the release of the detenu a valid order directing his detention is produced, the Court cannot direct its release merely on the ground that at some prior stage there was no valid cause for detention."‑[P L D 1954 F C 1 ].

7. On merits the orders dated 28th June, 1978 were challenged firstly, on the ground that there was in law no material before the detaining authority inasmuch as it almost exclusively consisted of the petitioners' statements made in Court in Constitutional Petition No. 807 of 1977 which enjoyed if not absolute, qualified privilege and in the alternative the material was such that no reasonable person could come to the conclusion that it was necessary to detain the petitioners under Martial Law Order 12. I will first proceed to examine the material for such examination will be relevant for the purpose of deciding the privilege claimed.

8. I have read and re‑read the material and the irresistible conclusion arrived at is that it is an unbridled attack, described by the learned Advocate General as vicious and malicious, against the Chief Martial Law Administrator in particular and the Military regime in general. The portions on which the learned Advocate‑General relied upon read as follows :‑

6. Mr. Mumtaz All Bhutto

7. "The situation today is entirely different from what it was on 10th November, 1977 when the Hon'ble Supreme Court gave its judgment. Viewed in light of the circumstances today it becomes abundantly clear that the Chief Martial Law Administrator has acted in implementation of a preplanned foreign conspiracy, against the People's Party Govern ment which was totally void of bona fides. .

8. Tell tale signs of the conspiracy also .started , becoming increasingly visible . ... '

9. And most revealing of all at the time was the reception given by the Chief Martial Law Administrator in honour of an outgoing Ambassador of a foreign Imperialist and Capitalist power on about 18th April quite contrary to and in defiance of very strict rules of the Foreign Office prohibiting this sort of thing.

10. Thus the Chief Martial Law Administrator resorted to .every form of repressive action known to Martial Law including the free use of lathis, teargas, mass arrests and imprisonment, torture, lashing and long sentences announced on the spot regardless of lack of evidence.. , ,

11. Mr. Zulfiqar Ali Bhutto was arrested on 3rd September, 1977. ,

12. It need only be said that the conduct of the arresting force was more suited to pagan invaders than good Muslims who presumably had homes and families of their own. . , . , , , _ ‑ .

13. But the Chief Martial Law Administrator instead of choosing an honourable course brought about, what was in effect, a second Martial Law. He unleashed the most barbaric form of violence and abuse against the PPP. Arrests have been continued till the jails are bursting with PPP workers. Public flogging and torture are commonly resorted to. The sanctity of 'Chadar and Chardiwari' has been brutally violated with impugnity. Women are beaten with lathis and kicked into unconsciousness (Annex. 'I'). They are dragged by the hair to police stations or unknown destinations (Annex. 'J'). The acting Chairman's head was split open with a laths at a cricket match and she and her daughter have been continuously harassed, detained and generally prevented from leading the party and performing functions as the Acting Chairman.

14. The release of Wali Khan motivated entirely by mala fides is a serious set back for democracy and harmful to the security and solidarity of the Nation.

15. It has now become a matter of survival for Chief Martial Law Administrator to destroy the PPP. Thus all resources and attention of Government has been focused on this issue with the consequence that the Nation stands on the brink of disaster and collapse.

16. The stock of Pakistan in the community of Nations stands at the lowest ebb. By surrendering to whims and fancies of a foreign Imperialist and Capitalist power, the Government has abandoned its sovereign and independent status, labourously built and projected by the PPP Government. It has assumed the role of a stooge. Thus many countries refused to have dealings with Pakistan until a legal and sovereign Government comes into existence. President Carter visited this part of the world but ignored Pakistan. The Chief Martial Law Administrator had to be content with a visit to Tehran in the wake of the President to find out whether any crumbs had been left behind.

17. The attitude of the British Prime Minister during his recent visit was nothing short of insulting. He did not only conduct himself as if visiting a part of Her Majesty's Empire, but assumed the power to comment and advise in a Press Conference on 12th January, 1978 on matters which were exclusive domestic and none of his business.

18. In the recent occurrences in the Middle East, the Chief Martial Law Administrator has not only let down our brotherly Muslim countries and Governments but also betrayed the cause of Islam. He has had to bend to the will of his benefactors and promote the case of Jews to the extent of giving them unprecedented publicity locally. This is the second time the Chief Martial Law Administrator has acted against the interest of the freedom fighters of Palestine for whom the People of Pakistan do not only have love and admiration but are also willing to make sacrifices. Even from Jail, Mr. Zulfiqar Ali Bhutto could not help remarking that if he was free President Sadaat would have not gone to Israel. The brazen instance by Chief Martial Law Administrator that he is the best Muslim of them all and must lecture to other Pakistanis on how to be such, is lip service completely contradicted by his deeds.

19. The economy has been completely destroyed. After seven months of uncontrolled power which has been used beyond the limits of decency, to explain that the economy was destroyed by the previous Government is to indulge in self‑deception. The Nations see that the Chief Martial Law Administrator is clueless in this field and has to depend upon a bureaucratic approach which has no basis in reality.

20. The treatment received by the students, labor and peasants, during the last seven months is a blot on the history of Nations. Whereas the Chief Martial Law Administrator has taken away all freedoms and rights and turned a dead ear to basic demands, Goondagardi in Schools and Colleges is rampant. In a statement on 20th January, 1978 a number of students organisations made a joint demand that‑ 'the Martial Law Administrator must control the Islami Jamiat‑e‑Tulba or they would also sumo into politics'.

21. Retrenchment in factories and ejectment of haris have become open occurrences. In the circumstances it was inevitable that situation should develop leading to the massacre of workers in Multan. The inflictors of this grave tragedy and the subsequent heartlessness shown by those concerned is something for which they must account before man and God.

22. A sacred principle of the doctrine of State necessity is solus populi suprema lex. And this is the one that has been violated the most. The welfare of the people has been turned into their nightmare. So much so that there is no one today who wants the agony to continue. Even the recognised mouth pieces of the Chief Martial Law Administrator and his fellow conspirators are clamouring for immediate return of democracy and representative rule.

23. In fact the attempt to destroy the PPP is a clear indication not to spare the institution of the politics in the country so that the Chief Martial Law Administrator may reign for a long time to come .

24. It is abundantly .clear from all. the . above that the. Chief Martial Law Administrator has been motivated by mala fides throughout. That he has failed to fully implement the foreign imperialist and capitalist conspiracy because he underestimated the strength and deep root of the Pakistan People's Party. That every attrocity committed against it has only roused its force and determination. The unfulfilled obsession and lust for unchallenged power has made him indifferently oblivious not only to the limitations of the doctrine of State Necessity but also the norms of common decency. ,

25. The patience of the Nation has been tested beyond tolerance. .

26. The Chief Martial Law Administrator in accusing .me of preaching Regionalism is attempting to conceal a guilty conscience which he must have owing to the fact that he is not only a pawn in the foreign conspiracy but also hand in glove with those who do not accept Pakistan.

27. His lust for power is driving to a parochial and anti‑people attitude which strikes the very foundation and security of the Nation."

28. Mr. Abdul Hafeez Pirzada

29. "With passage of time, it became abundantly clear that the solemn pledge made by the respondent No. 1 to the Nation on the 5th of July, 1977 to hold free, fair and impartial Elections in October, 1977 and not to dissipate his energies as the Chief Martial Law Administrator on anything else except the holding of such Elections on Schedule, had no better sanctity than a word uttered callously by a loose tongue. There appeared to be more honour in dishonouring pledges rather than keeping them with faith. The tall and bogus claims of chivalry, human decency, the great Islamic Traditions and sanctity of the Chaddar and the Chardiwary, vis‑a‑vis the leadership of the People's Party meant an ignoble and ruthless pursuit to attack even the Home and Hearth of the leadership. Ignominy became the most cherished goal of the respondent No. 1 and his regime as if the solemn pledge to Nation, was really made to hound the People's Party leadership not even sparing the female members of their family. ,

30. However, this was only the tip of iceberg and the real game was far too deep. In juxtaposition with the avowed objections of respondent No. 1, the actual designs were sinister and machiavellian. the respondent No. 1 pronounced his new theory of accountability whereby he assumed to himself with arrogance, all the functions of the inquisitor, the prosecutor and the Arbiter of the fact of the National Political leadership. Placing himself on a pedestal above his personal accountability and the law, it was ironical, that, he sought the accountability of others.

31. We also witnessed an insatiable appetite for resort to the famous Martial Law Order 12. However, the pattern of strategy that emerged from the arrests and detentions was singular and aimed solely at exorting from the workers, under duress and torture, statements, which would falsely incriminate and implicate me in illusory criminal offences.

32. Beyond the shadow of doubt, the real object of the respondent No. 1 is the destruction of the democratic political system in the country and its substitution by a dictatorship through the Oligarchy of the Junta or the autocracy of the respondent No. 1. In this he fully shares the ambitions and the aspirations of his predecessor the late Field Martial Ayub Khan

33. Therefore, like a cunning and crafty contender, he must split and divide the political leadership and using one against the other destroy the most powerful to begin with so as to pave the way for an easy disposal of the weaker.

34. However, let the. warning ring .loud. and . clear, that today only the people of Pakistan are the real masters of their destiny. The awakening brought about by Chairman Zulfiqar Ali Bhutto has given them a full appreciation of their inalienable rights which they thoroughly cherish and are resolved to protect at all costs. They shall rise to defend their own and strike down any hand, no matter how iron clad it be, which is raised to usurp their rights. The warning is clear and is on the wall.

35. ..

36. Our people were born to be free and masters of their destiny. It was not to be their lot to be bonded into slavery and serfdom by caprice and fancy of unscrupulous and ambitious individuals in whom they reposed faith and trust for their protection. They cannot allow such individuals to destroy institutions created out of the sweat and blood of the people.

37. However, only those, who are possessed by the demon of self‑mutilations and national destruction can afford to stand by as silent and remote spectators and witness the grand performance of the 'Fiddler while Rome is aflame.'

38. During the short course of eight months has the respondent No. 1 not succeeded in :

(a) Providing to the whole world that the National fiber and character of Pakistan is incapable of producing any clean political leadership and that the masses of Pakistan are totally devoid of any political, moral and social sense of responsibility and that they can vote to power only murderers, crooks and thieves.

(b) Destroying the fair name of Pakistan within and abroad through a well‑concerted plan to destroy the character of its National leaders.

(c) Destroying all political and democratic institutions and elevating himself to the untenable position of thrusting upon the sovereign people a political leadership suited to his whim and caprice ?

(d) Establishing that there is greater glory in dishonouring solemn pledges and articles of faith' rather than in fulfilling the commitments ?

(e) In arresting the dynamics of a progressive party by resorting to retrogression and subjugation of the political, social and economic rights of a poor people and making them subservient to the dictation of Imperialistic and neocolonial powers and representatives of the champions of exploitation and oppression ?

(f) In jeopardising the foundation of a public sector development dedicated to the flourishing of National economy and the alleviation of the misery of the teeming millions.

(g) In relegating Pakistan to the position of a non‑entity and a camp follower in the field of international affairs. .

39. . Why are important and massive projects languishing from neglect and lethargy. Why have the prices of the essential commodities rocketted to such insufferable and unapproachable heights ; and whatever happened to that bumper wheat crop so that the State has also driven to the fancy of crash importing a million tons of that essential staple food item." .

40. One wonders as to the motivating impulses that have led the respondent No. 1 to the relentless pursuit of destroying the Nationalised and Public sector programmmes of economic development. Is he not aware that his disastrous and arbitrary course is suicidal to the establishment of an independent National Economy. ,

41. It is equally painful to see this brave Islamic State relegated in the field of international affairs to the fate of a third rate Camp follower of the neocolonialist powers. . ,

42. In these circumstances, which patriot can afford to sit back with a bleeding heart and see the destruction of his beloved country?

43. It was simply beyond their comprehension to understand and appreciate the outburst of the popular emotion and sentiment of the broad masses in support of a Political Party, which had been constantly badgered and thrashed from all sides for months upon months by brutal and inhuman use of an 'iron fist' whose leadership had been unconscientiously demanded, debased and humiliated by the most wicked, perverse, vulgar. and obscene campaign sponsored through the mass media‑whose workers in thousands had been hounded, arrested, sentenced and lashed for their political belief‑whose members and leaders had been painted as Cheats, Crooks, Looters, Plunderers, Rapists and Murderers and dubbed as the enemies of the Nation ‑ which had been subjected to the Machiavelian and sinister intrigue to bring about internal dissensions and its weakening‑whose Government had been toppled as a result of an Imperialistic conspiracy‑which was being made to pay, day in and day out, for having challenged the might of the neocolonial powers so as to ensure a just and fair treatment for the down trodden millions of its citizens whose women members and workers had been terrorised by the protection of Chadar and Chardiwari inside the jails and had for the first time in our history been made to shed their blood on the streets at the hands of the 'iron fist'."

44. Is there a parallel in our. political history to the sacrifice given by this Party. It is not simply a case or remote chance of punishment for the violation of section 144, Cr. P. C. Does one realise as to how many thousands of the workers of the party have gone to Jail since the 5th July. How many hundreds have been awarded stiff sentences of rigorous imprisonment and lashes just because they have gone to the mosques and shrines to pray for the release of their Chairman and raised the slogans of 'Jiey Bhutto' ? How many scores of our sisters and daughters have received the brutal laths on their bodies by the law enforcing agencies, of the respondent No. 1 and how their blood including that of the Acting Chairman of the Party, the one time First Lady of the country, was shed on the streets. In Karachi alone hundreds of workers have received sentences of up to one year R. I. and up to 15 lashes notwithstanding that some of them were only in their teens. Even today number of lady workers of Karachi from respectable homes are languishing in jail under sentence of imprisonment (R. I.) from Summary Military Courts.

45. On 5‑12‑1977, for having demonstrated their solidarity with their detained leaders, whose writ petition was coming up for hearing before this Hon'ble Court, scores of party workers including women were mercilessly laths‑charged and beaten up within the precincts of this Hon'ble Court. Not satisfied with the gruesome act whereby at least three lady workers lay on the ground unconscious, they had to be house arrested, external or convicted to imprisonment as common criminals. 23 male workers including a few teenagers are still serving the stiff sentences at Karachi Jail awarded by the respondent's Summary Military Courts. .

46. Hoping against hopes, like a desperate man, clinging on his seat by the skin of his teeth, he must venture upon one audacious gamble after another, with a forlorn chance of some gimmick coming off and coming to his rescue ..

47. The whole country must be held at ransom."

9. The learned Advocate‑General pointed out that the statements attributed to the Chief Martial Law Administrator and the present regime, an ab initio conspiratorial birth at the behest of a foreign imperialist power which runs counter to the finding of the Supreme Court in Begum Nusrat Bhutto's case that the take‑over was justified by requirements of State necessity and welfare of the people. He also pointed out the total irrelevancy of the allegations to the petitioners' detention or their defence of mala fides. According to the learned Advocate‑General the venom of the petitioners is self‑evident and the vehemence with which it has been expressed exposes a state of mind which under no circumstances is prepared to accept the continued existence of the present regime which had allegedly brought about total ruination. That the objective of the petitioners is to cause disaffection between the people and the Government, which Government according to them was born infamy, pursuing as it is an anti‑Muslim and anti‑Third World Policy, and sustained by human operation, must be removed at all costs and by all means possible. These utterances, it was suggested ought to be read in the context of Martial Law Order 24, which while allowing limited political activity expressly prohibited making of statements which are intended or likely to cause hatred or disaffection towards the Government established under Martial Law, which was followed by Martial Law Regulation 33 dated 28‑2‑1978 which completely prohibited political activity. In this context our attention was also invited to Martial Law Order 28, dated 26‑2‑1978 under which the petitioners were debarred from participating in any manner whatso ever directly or indirectly in any political activity closed or otherwise during the pendency of proceedings against them before the Disqualification Tribunal on the pain of penalty which may extend to seven years' R. I. by a Summary Military Court. It was argued that the petitioners had become so desperate that any reasonable person reading the said material can come to only one conclusion and that is, an immediate likelihood of a serious law and order situation. Mr. Abdul Hafiz Pir2,ada, contended that the aforesaid statements though pungent in character must be understood in the context in which they were made, namely, in furtherance of a habeas corpus petition which expressly alleged mala fides against the Chief Martial Law Administrator and by a person who had remained in detention for a period of over 8 months. The statements it was said quite reasonably picked up an uncontrollable momentum and, therefore, the excess if any, in the use of the language may be overlooked. Mr. Pirzada, further argued that what had been stated in the material was nothing new for it had been asserted by the petitioners and .their leaders, the Chairman and the Acting Chairman of the Pakistan People's Party, in various proceedings in Court. It went no further than the allegations made in the Constitutional Petition No. 807 of 1977 and in any event being relevant to the issue of mala fides could not become subject matter of an independent proceedings for their detention. It was argued that the statements read as a whole were unexceptional and the exclusive objective of the petitioners was, as have been forcibly asserted by them, that the only solution was to hold elections which was the declared objective of the Chef Martial Law Administrator when assuming power on the 5th of July, 1977 which objective alone gave the otherwise illegal take‑over an interim legal sanctity. He further pointed out by reference to large number of statements by different politicians that it is a near unanimous demand of the Nation that elections be held at the earliest. It was argued that the sole cause of their detention was their passionate belief in the ballot box and their assertion that the present regime bad lost its credibility by its failure to hold elections. It was also contended that criticism of the Government, however, vigorously stated was not only permissible but was a necessary activity and a patriot's expression of plurality of fears if elections are not held cannot become a ground for detention.

10. Lastly, it was urged that their statements ought to be read as a whole and in particular our attention was invited to the following portions in their statements

48. Mr. Mumtaz Ali Bhutto

49. "That in its judgment given on 10th November, 1977, in the petition filed by Begum Nusrat Bhutto, the Hon'ble Supreme Court has in effect clearly stated that the take‑over of Government and imposition of Martial Law by Chief Martial Law Administrator on 5th July, 1977 is wrong. But it is permissible for a strictly limited period if the Chief Martial Law Administrator is acting in good faith, in the interest of the people for the purpose of holding free and fair elections.

50. The PPP Government having complete faith and confidence in the will of the People and the finality of the verdict at the polls decided to accept the challenge.

51. Nawabzada Nasrullan Khan Vice‑President, PNA, in his press statement reported on 8th January, 1978 has said that out of 32 points, 31 had been agreed upon and Maulana Mufti Mahmood has been reported on 10th January, 1978 to say that every thing had turned out alright towards the end of the dialogue despite sabotage by Asghar Khan. Asghar Khan has himself admitted that he sabotaged the dialogue in an interview to a weekly in Lahore on 14th October, 1977.

52. Although the PNA leadership had seen the mood of the people and were ready for a political solution, the Chief .Martial Law Administrator had his own plans. The sabotage by Asghar Khan fits into the conspiracy but more important is the thirty second points referred to by Nawabzada Nasrullah Khan which was the demand for release of Wali Khan and his fellow traitors in the Hyderabad case and the withdrawal of troops from Baluchistan. This matter was discussed in a Cabinet meeting on 1st July, 1977 and the Chief Martial Law Administrator was adamant and would not relent an inch. He said that a compromise on this point would be totally unacceptable to the Armed Forces who were ready to face the consequences of the break‑up of the dialogues. The blood of soldiers had been shed in Baluchistan and they would under no circumstances accept a compromise. Thus the way was paved for the third step of the conspiracy. However, a political solution had been found. The Prime Minister told the Press at 11‑30 p.m. on 4th July that he was ready to sign the accord the next day and realising that it was becoming too late the Chief Martial Law Administrator struck at 2‑30 a.m. on 5th July, 1977.

53. Thus the conspiracy had come into full circle. It only remained for Tebrik‑e‑Istiqlal to break away from PNA. This Asghar Khan did on 11th November, 1977 with the words that he had only joined PNA for removing PPP from power.

54. ..

55. The People's Party, however, struck to its decision of 3rd August, 1977 to participate in the elections under the rules prescribed by Martial Law. Begum Nusrat Bhutto became Acting Chairman and the election campaign commenced.

56. According to disclosures in a Press statement on 8th .January, 1978 by some of the PNA leadership namely, Maulana Shah Ahmed Noorani and Maulana Abdul Sattar Niazi, the PNA leaders begged Chief Martial Law Administrator and it suited him perfectly to postpone the elections indefinitely. This was the only way to prevent the PPP from returning to power. Thus the 'solemn assurance' given to the Nation by Chief Martial Law Administrator on 5th July, 1977 was broken by him on 1st October, 1977 with the stunning expression 'should I hold, election only because I made pledge to this effect on behalf of the Armed Forces.'

57. This if true was really an admission of failure that in three months the combined might of the Armed Forces supported by Police, F. I. A., Rangers, Frontier Constabulary and all other law enforcement agencies in country had failed to improve the situation which remained the same as on 5th July, 1977. For such a failure the PPP Government was removed. But the Chief Martial Law Administrator instead of choosing an honourable course brought about, what was in effect a second Martial Law. .

58. It has now become .a matter. of survival for Chief .Martial Law Administrator to destroy the PPP. Thus all resources and attention of Government has been focused on this issue with the consequence that the Nation stands on the brink of disaster and collapse.

59. From where does the Chief Martial Law Administrator derive the authority to take such fundamental and epoch making decisions? This is far outside the doctrine of State necessity as enunciated by the Supreme Court even if he insists that he is still acting under it.

60. There can be no doubt whatsoever now that much published process of accountability is being used by Chief Martial Law Administrator as yet another and perhaps the main play to remain in power regardless of the fact that it has nothing to do with the doctrine of State Necessity and has been rejected by the people as a process of victimiza tion of the PPP leadership only. It is clearly being used to remove from the political field those leaders who are not prepared to be black‑mailed, bullied or bought by the Chief Martial Law Administrator so that if and when an election comes only such candidates contest and win who are willing to enter into an arrangement.

61. ..

62. Amongst the most glaring, examples of mala fides shown by Chief Martial Law Administrator is the appointment of a Council of Advisors not only in the Centre but also in one Province, so far. It is an unequivocal and defiant statement of his intention not to hold elections and cling on to power as long as possible. This is not only contrary to the judgment of the Hon'ble Supreme Court and quite outside the doctrine of State Necessity but also in violation of the verdict of the people who, ten years ago removed from power a similar dictator and his cabinet of Armed Forces personnel bureaucrats discarded politicians and unknown individuals .

63. The Chief Martial Law Administrator has repeated Ad‑Nauseum that elections will be held after accountability but his Advisor for Food and Agriculture said on 19th January 1978 that this can be done only after the economy is revived which in an under‑developed country with the present set up means never. The Chief Martial Law Administrator himself added this new dimension on 16th February, 1978 ; when speaking to foreign Journalists he said a sound economic base before the polls was essential. On the same day the Advisor for Political Affairs and Commerce said that elections will be held when the situation improves. And on 23rd February came the statement of Chief Martial Law Administrator that Polls only after he and his colleagues are assured of 'positive results'. He went even further when explaining this on 28th February, 1978 by saying that election will be held only after arrangements for separate electorates new electoral rolls and fresh constituencies had been completed. This does not only wipe out every commitment made by the Chief Martial Law Administrator for the restoration of democracy but makes mince meat of the doctrine of State Necessity as enunciated by the Supreme Court on 10th November, 1977. Thus no one can blame the BBC for commenting on 24th February 1978 that General Zia wants to stay in power for some more time and there will be no elections until he is convinced that the results will be according to his wishes. He and his colleagues are worried that Bhutto might come back. This in effect is what the Chief Martial Law Administrator said to Keyhan International on 15th September, 1977

64. No one wants the Chief Martial Law Administrator to stay in power a moment longer. Every one wants immediate elections, restoration of democracy and representative rule.

65. That arrest under Martial Law Order No. 12 for the purpose of account ability is illegal and unjustified. Accountability is completely outside the scope of Martial Law Order. This and the process of accountability are ultra vires and in conflict with the doctrine of State Necessity. The real accountability of a politician takes place at the polls. On 10th September, 1977, it is reported that 'General Zia said Mr. Bhutto would be finished only if he died a political death such as being defeated in a fair election'. But now that he knows that PPP cannot be defeated at the polls he has resorted to the open use of Martial Law and troops against it

66. That in fact I have not in any manner or fashion done, said or committed anything that could invoke arrest and detention under Martial Law Order No. 12. My crime has been that

(i) I cannot be bullied, black‑mailed or bought.

(ii) I remain loyal to my party and an important member of its High Command.

(iiii) I have a firm belief in democracy and demand its restoration.

67. It is also the object of the Chief Martial Law Administrator that I should face the disqualification Tribunal and criminal prosecution in Special Courts while still under detention so that I have no chance to defend myself, If any further evidence of bad faith is required, this ranks at the top. Having concocted cases against me, by locking me up, now he wants me to face trials in chains. ;

68. Mr. AM Hafeez Pirzada

69. Had the real objective of the Martial Law been holding of the free, fair and impartial elections, the arrest of the leadership of Pakistan People's Party under Martial Law Order No. 12 could not even have been contemplated. This is now conclusively established by the speech made by the respondent No. 1 at Sibi on 23‑2‑1978.

70. The indications of the gathering storm and the deepening National crises were further confirmed during the Press Conference of the respondent No. I on 1st September, 1977, wherein we heard a vociferous advocacy for a Presidential system of Government and a Constitutional Role for the Armed Forces in the administration of the Federation. We were also stunned to witness a complete somersault by the said respondent on the question of accountability of the Public Representatives.

71. ..

72. At this , stage, the nefarious plans to oust and eliminate the real leadership from the Electoral fight became as clear as the day. The object clearly was to destroy the Premier Political Party of the country and jam pack the Assemblies with men of straw, who subsequently could be bent or broken at will by the respondent No. 1.

73. ..

74. This, somewhat, premature revelation of the nefarious and wicked strategy was precipitated by the tenacious resolve of the Pakistan People's Party in its refusal to be provoked into a decision to boycott the General Elections.

75. In the face of heavy odds, undaunted by the insurmountable handicaps, and undeterred by the most scurrilous and obscene provocation, this premier political party, once again rose above all subjective considers dons, and issued the famous declaration, of its resolve to participate, unconditionally in the General Elections.

76. ..

77. The considerations which led the Central Executive to take this decision are self‑evident in its declaration of 3rd August, 1977. This declaration speaks volumes on the ideology of Pakistan People's Party and the totality of the commitment of its leaders, workers and members to the ideology and integrity of Pakistan, respect for the rule of law and the inalienable Political, Social and Economic rights of the Nation. It also firmly establishes the Party's conviction that the Governments must be formed through the Electoral process of Ballot."

78. The stakes are indeed very high. Today, the future of democracy is in the balance, the Nation is at cross roads, the rights of a brave, but oppressed people are suspended by a thin a feeble thread.

79. ..

80. Pakistan must be fully restored with the umbrella of its Constitution and the protection of its democratic representative institutions. The explosive situation does not admit of a single day's delay or any complacent. In any case the respondent No. 1 is morally and legally bound by the judgment of the Supreme Court to hold free, fair and impartial elections without any further loss of time and not to dissipate his energies and the resources of the State on any other matters.

81. ..

82. In. these circumstances, which patriot can afford to sit back with a bleeding heart and see the destruction of his beloved country?

83. ..

84. What unforgiveable sin does one commit by advocating and vociferously demanding the immediate holding of General Elections? One is only repeating the emphatic opinion of the Highest Court of the country.

85. ..

86. Is this the crime for which one is detained to be thrown behind the bars. Has not the entire public opinion now started voicing the same demand?

87. ..

88. The subsequent events have established. how determined the respondent No. 1 was to wipe out the possibility of Mr. Bhutto conducting the Election Campaign. That by now, it was quite obvious that the respondent No. 1 was simply not prepared to see the top leadership of the Pakistan People's Party in the Parliament and the Assemblies. The evil ingenuity had invented the operation 'fail safe', in the form of the multidirectional attack. The king pin in the strategy was the genius behind the promulgation of Martial Law Order No. 21 which more or less synchronised with the arrest of the Party Chairman.

89. ..

90. That on 15‑9‑1977, the Pakistan Times .reproduced a somewhat earlier interview given to a Lahore Journal which makes interesting reading and clearly shows the bias and prejudice of the respondent No. 1 against the Chairman and leaders of Pakistan People's Party. A partial reproduction of the interview is Mr. Bhutto and his colleagues will not be able to escape severe punishment. If necessary, Martial Law would also be used to bring culprits to book who have been playing with the honour and the dignity of the Nation for the past five and a half years. We cannot be impartial regarding those, who have committed crimes against the Nation.

91. ..

92. What fairplay could one expect from a person who so unabashedly declared his inability to be impartial.

93. The Election. campaign started on the day following our arrests, .the Pakistan People's Party reiterated its resolve to go ahead with the campaign and participate in the Elections even with the entire leadership of the Party behind the Bars. The party did not even bother to remind the respondent No. 1 of his pledge to allow its leaders to fully participate in the Election Campaign.

94. Moreover, these arrests failed to spring any surprise on the Party which had long apprehended this action and was mentally reconciled to any such development. Such apprehensions had been often expressed in public by the Party leadership since August 1977 and it had been reiterated time and again that the commitment of the Party to the process of ballot for restoration of democracy and representative Government was total and the Party had no other course of action than the process of Elections, knowing fully well that the Dice would be heavily loaded against it.

95. ..

96. That in a tribute to our masses, let it be said that they, more than any one sitting behind the safety of the armour and comforts of the desk, realised the real depth and intensity of the gravity of the crises facing the Nation. In their identification with the Pakistan People's Party they were reiterating their resolve to adhere to their ideological belief in the security and integrity of Pakistan. In this hour of crises they not only rose to the occasion, but demonstrated an extraordinary and magnificent sense of discipline. They displayed a splendid sense of understanding as if the fate of the country, which was hanging in balance by the feeblest of the threads, depended upon their sense of responsibility and maturity of action in not being provoked to exuberant and frenzied overtures. The greater their support for the Party, the greater was determination to maintain peace and tranquillity.

97. ..

98. What else is mala fides? I wish it were a Collector's item of art, so that it could be produced physically before the respondent No. 1 to see for himself. Can he validly ask for any further proof of mala fides, when the dastardly attack on Begum Bhutto at the Qadafi Stadium, resulted in nothing but scornful statements of the respondent No. 1 against her, when an ordinary incident resulted in a minor assault on Maulana Noorani at the Lahore Airport on 8‑8‑1977 was responded to by a telephonic and public apology by the respondent No. 1.

99. ..

100. Since 5‑7‑1977 has a single member or worker of any other political party been arrested or convicted by any Military Court? Whereas the leaders and workers of these political parties have an open general license to address meetings and undertake full‑fledged political activity, as if the Martial Law Regulations and Orders did not exist, the Pakistan People's Party is not permitted to carry on the activity specifically allowed by these Regulations and Orders the meeting of its Provincial Committee of Sind is ordered to be postponed. Its leaders are detained and arrested to prevent them from visiting mosques and religious shrines, law enforcing agencies in plain clothes are inducted to attack and assault the Party leadership at mosques and shrines.

101. We have consistently pleaded that the imposition of .Martial Law had imperiled the Federation of Pakistan. The respondent himself is on record to have admitted that the country simply cannot survive another Martial Law.

102. May be, our early warnings did not fall on responsive ears. But can one overlook the monstrous proportions that this threat has assumed today. Why is it necessary for PNA, leaders like Maulana Noorani to cry themselves hoarse that the issue of Provincial Autonomy and Federal Provincial Relations are fully settled and should not be disturbed.

103. Today we should bow our heads and with all humility and penance pray to the God Almighty, in his infinite mercy to protect this Nation and Land from the repetition of what it has suffered since 5th July, 1977.

104. The barbarities and the atrocities that the respondent No. l has perpetrated on the National leadership, may well have paved the path for destruction of all incentive in the patriotic elements to come forward and assume leadership to guide the destinies of the country. The precedent that he has established may well have dampened by now all the patriotic spirit.

105. Someday, some one may just get up and say. If this is the fate to be meted out to the National leaders by the will of an Army Commander, for the crime of selfless services to the Nation and the people : 1f this country is not to enjoy the sanctity of its constitution, if successive commanders can with impugnity undo the life times work of the Nation.

106. To hell with the politics and the affairs of the Governments.

107. There is a saying in Sindhi

108. `To hell with the Gold that rips the ears.'

109. Without prejudice to the legal grounds already raised in the petition challenging the vires of the Martial Law Order No. 12, the question is what were the objectives of the Martial Law on 16th September, 1977, the safeguard and achievements of which necessitated the passing of impugned orders of respondent No. 1. Was it not the avowed object of the Martial Law as publicly declared by the respondent No. 1 to hold free and fair elections in the country so as to bring about the restoration of democratic and popularly elected Government who can say what we at any time even remotely intended to sabotage or frustrate the efforts of the Martial Law Government to achieve this object. As long as the respondent claims that this was the real object, our detention cannot be justified under any cannon of law and justice.

110. The question today is as to when will the elections be held? When will we see the light at the end of the tunnel? How long can the Nation survive the hazzards of such an unrepresentative Rule? Is this not a question that very patriot is asking? Is one not justified to raise his voice if there are serious apprehensions of a catastrophic conclusion at the end of this Martial Law if it is prolonged unnecessarily like its predecessors? Must we once again have the legacy of ashes and debris for the future Government to build upon. Must this be the fate of a people, who through relentless struggle and unprecedented sacrifices, created an independent homeland for themselves. Must it be our miserable lot to have the concentric cycles every few years necessitating building from the scratch.

111. .

112. If in the face of overwhelming odds, abusive and provocative discrimi nation, massive dozes of the unclement iron fist, scandalous and vulgar campaign, onslaughts of the might of the State, fabrication and concoction of the false cases, defamation of the home and family, arrests, imprisonment and whipping, our decision, not to boycott the polls and bring about the restoration of democratic institutions through the process of ballot, is construed as undermining the objects of Martial Law, let us continue to suffer the punishment and let not waste the time of this Hon'ble Court. However, in such a case the object of the Martial Law must of necessity be held to be tantamount to annihilation of Democracy and People's Sovereignty God forbid, the end of the National Dream."

11. Our jurisdiction in examining the material before the detaining authority vital as it is, is not unlimited. In the language of the Supreme Court of Pakistan in the case of Ghulam Jillani "under our Constitutional system, which provides for a judicial review of executive action, it is a fallacy to think that such a judicial review must be in the nature of appeal against the decision of the executive authority. It is not the purpose of the judicial authority reviewing executive action to sit in appeal over the executive or to substitute the discretion of the Court for that of administrative agency". As tersely put in Abdul Baqi Baloch's case the Court should examine the grounds of detention to test the reasonableness and while doing so the Court does not substitute its own opinion for the opinion of the authority concerned. It will follow, therefore, that the Court is not concerned with the truth or otherwise of the material unless of course the record itself demonstrates its falsity but then the detention will not be set aside because of this falsity but that no reasonable man could found the order on such material. If the material before the detaining authority was adequate and relevant Court will not interfere. It may as well be that the Court may be inclined to take another view of the material but if the view taken by the detaining authority is also possible and has been taken after an honest application of mind there will be no room for interference. When we examine the material in this context the least that can be said is that there could be two equally possible views on the material, namely, the P one urged by the petitioners and the other taken by the detaining authority. In this view of the matter it cannot be said that the material was such as could not have persuaded a reasonable person that the petitioners' detention was necessary under Martial Law Order No. 12. The argument of Mr. Pirzada that no overt prejudicial act has been attributed to the petitioners in the material appears to be irrelevant for it is sufficient if the state of mind of the detenu as disclosed in the, material justifies the conclusion that the detenu was likely to act in a manner prejudicial to maintenance of peace fu conditions. I may add here that the additional material before the detaining authority, in the context of the petitioners aforesaid written‑statements, was capable of inducing a reasonable person to come to this conclusion. This additional material in the case of Mr. Mumtaz Ali Bhutto was his statement to the press in the premises of this Court on 22‑1‑1978 that the impartiality of the present Government was proved from the inimical treatment meted out to the PPP but the PPP could not be suppressed in that way and the rule of law will prevail in this country and the capitalists and conspirators would meet their fate. In this statement he also complained of his eye trouble and went on to say that while the people were donating their eyes after their death he was sacrifying his eyes for the Nation during his life. In relation to Mr. Abdul Hafiz Pirzada the additional material was his statement appearing in the press in which he stated that he and his Party would go on struggling for establishment of democracy and in that effort he and his son would give their last drop of blood. Furthermore, there was a note put up before the detaining authority in which it was alleged that Mr. Pirzada was issuing press statements while attending the Court proceedings and after one such statement (it appeared in daily 'Masawaat', dated 21‑12‑1977) a bus was burnt by the PPP supporters on Burns Road. Additionally, there were serious disturbances in the Court premises on 5‑12‑1977 when the petitioners were brought to Court at the hearing of Constitutional Petition No. 807/1977.

12. A further argument limited to the case of Mr. Mumtaz Ali Bhuttol was that according to the note of Major Salman, put up before the detaining authority the apprehension expressed was that if the detenu is set free he will go out in the interior of Sind and would incite people to rise in revolt against the Martial Law and shall create a serious law and order situation, while the jurisdiction of the detaining authority was limited to Sector 1, which is Karachi Division. In other words, the contention was that it was not open to the detaining authority to detain Mr. Mumtaz Ali Bhutto for preventing him from acting prejudicially outside this Sector. The argument overlooks the order of the detaining authority that in his opinion it was necessary to detain Mr. Mumtaz Ali Bhutto to prevent him from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed and for the maintenance of peaceful conditions "in the area". The detaining authority had therefore, in his mind the area under his jurisdiction and not the interior of Sind.

13. This brings me to the contention of privilege on which there was conceptual difference between Mr. Pirzada and the learned Advocate‑General. According to the former without the extension of absolute privilege to statements made in Courts the very trichotomy of powers between the Executive, the Legislature and the Judiciary will be destroyed and, therefore, parties and witnesses must of necessity have the same kind of privilege as is enjoyed by the members of the Parliament, namely, absolute privilege. It was vehemently asserted that without this privilege a party's right to defend himself will be rendered illusory particularly when mala fides are alleged which must of necessity result in an attack on the motives of the opposite party. On the other hand the argument of the learned Advocate‑General was that the question of privilege does not at all arise in this case for a detaining authority is concerned with a vital public duty and if it receives reliable information‑and what could be more reliable than detenu's own utterances‑he is bound to act thereon irrespective of any other consideration. It was alternatively argued that privilege, sought must have its foundation in law and if the law does not recognize it then there would be no occasion to plead it. We are relieved of examining the English Law on the subject of the Parliamentary privilege enjoyed by the Members of the British Parliament for in to far as privilege of the parties in relation to a civil action, our Supreme Court has in the case of Moosa v. Muhammad and others (PLD 1968 SC 25), held that parties, witnesses and counsel enjoy, unlike in England, qualified privilege. It will, therefore, follow that if it was sought to found a civil action on the basis of statements made by the petitioners in Constitutional Petition No. 807/1977, the petitioners will be entitled to plead qualified action provided statements were bona fide made and relevant to issue in question.

14. In the present case the petitioners voluntary statements have exposed them to an order of arrest and detention which will clearly attract the principle laid down in section 132 of the Evidence Act. Since the petitioners were not compelled by the Court to make any statement these could be used t as evidence against them in any criminal or civil proceedings. It is also relevant to notice that under section 342, Cr. P. C. the answers given to Court by an accused can be taken into consideration and put in evidence against him in any other enquiry or trial for any other offence which such answers may tend to show that he has committed. Therefore, neither in principle nor on authority it is possible to accept the plea of privilege. Even if by some process of reasoning it may be said that the statements were made on an occasion of a qualified privilege such privilege was quite clearly lost for some of the allegations were lacking in bona fides and most of the portions complained of were not germane to the subject‑matter in issue. ,, The privilege, if any, was also lost by its publication for part of the petitioners statements appeared verbatim in "Mayyar" Weekly and there are reasons to believe that this publication was made at the instance o the petitioners or that they had made their statements available to the said Weekly.

15. Finally, Mr. Abdul Hafiz Pirzada challenged the orders of detention on the ground that the Chief Martial Law Administrator having earlier revoked the petitioners, detention by his order dated 30th March, 1978, the petitioners ceased to be security risk and it was not open to the respondent, Deputy Martial Law Administrator, his delegate subordinate to order afresh the petitioners detention. The identical order of Chief Martial Law Adminis trator on which reliance is placed reads as follows

113. "(1) The Chief Martial Law Administrator is pleased to rescind detention order dated 16th September 1977 in respect of Mr. Abdul Hafiz Pirzada son of Abdul Sattar Pirzada, with immediate effect. He will be released from detention and set free without prejudice to any legal action to which he may be amenable under any other law for the time being in force.

(2) By order of the Chief Martial Law Administrator."

114. The argument would have had some relevancy if the Chief Martial Law Administrator had rescinded the earlier order of detention after his attention had been drawn to the then existing material against the petitioners and the order of Deputy Martial Law Administrator had been made on the basis of the same material. The admitted fact however, is that the Chief Martial Law Administrator did not have before him the petitioners' written‑statements made in this Court which became the basis of their detention by the Deputy Martial Law Administrator. Even otherwise to my mind Martial Law Order No. 12 must be given its full effect and since it empowers the Chief Martial Law Administrator, Martial Law Administrators and the Deputy Martial Law Administrators, to pass an order of detention, exercise of this power by one cannot have the effect of limiting the power of the other. There is here clearly no delegation of powers by the Chief Martial Law Administrator to Martial Law Administrators, or Deputy Martial Law Administrators. Each must apply his own independent mind in the exercise of his power under Martial Law Order No. 12 and at best rescission of an order of detention made by one, followed by an order of detention by the other may be relevant in the application of the test of reasonableness on the part of the latter detaining authority. Even this examination is unnecessary in the present case for the material before the Deputy Martial Law Administrator was altogether different and in any event maintenance of law and order in Sector I is the immediate concern of the Deputy Martial Law Administrator.

16. The result, therefore, is that the petitioners' detention under Martial Order No. 12 cannot be said to be without lawful authority and this petition is, therefore, dismissed. In the circumstances there will be no order as to costs.

115. AIMAL MIAN, J.‑I agree. s. A. H. Petition dismissed.