MUMTAZ ALI BHUTTO Versus DEPUTY LAW ADMINISTRATOR SECTOR 1 KARACHI

ABDUL KADIR SHAIKH, C. J .‑By this petition under Article 199 of the Constitution, the two petitioners, Mumtaz Ali Bhutto and Abdul Hafeez Pirzada, seek to challenge the orders of their detention passed under the provisions of Martial Law Order No. 12. The case has come up before us in the Full Bench as the Division Bench made a reference that the questions of constitutional importance raised are likely to effect a large number of cases, and these deserve an authoritative decision of larger Bench. It is only appropriate that the facts of the case may be stated first.

The starting point is the 5th of July. 1977, when the proclamation of Martial Law was issued. The two petitioners, who are among the top leaders of the Pakistan People's Party, were arrested along with certain other leaders and kept under preventive detention for 24 days till the 28th July, 1977. They were once again arrested on 17th September, 1977, under the provisions of Martial Law Order No. 12 and have since then remained in continuous detention by virtue of five orders passed by the Chief Martial Law Administrator and the Deputy Martial Law Administrator, Karachi, on 16th September, 1977, 30th March 1978, 27th June, 1978, 26th September, 1978 and 20th December, 1978.

The detention orders dated the 16th September, 1977, passed by the Chief Martial Law Administrator were challenged by Begum Nusrat Bhutto on behalf of the petitioners before this Court in Constitutional Petition No. D. 807/ 1977. This petition was dismissed as infructuous on 10th April, 1978, and the petitioners' second petition, being Constitutional Petition No. D. 625 of 1978 was also dismissed on merits on 14th July, 1978. The petitioners then filed the present petition seeking to challenge the orders of their detention dated the 25th September, 1978. Since these orders lapsed by flux of time and petitioners' detention continues by virtue of orders of detention dated 20th December, 1978, they have also challenged these subsequent orders.

The orders ought to be challenged are almost identical, and it would suffice if the order passed in the case of the first petitioner is reproduced. It reads as under :‑

"Dated 25 September, 1978.‑Whereas, the Deputy Martial Law Adminis trator is of the opinion that for the purpose of preventing Mr. Mumtaz Ali Bhutto son of Nawab Nabi Bux Bhutto from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed, the security of Pakistan and the maintenance of peaceful conditions therein, it is necessary that Mumtaz Ali Bhutto be detained.

Now, therefore, in exercise of the powers under sub‑paragraph (a) of the paragraph 2 of Martial Law Order No. 12 the Deputy Martial Law Administrator is pleased to direct that Mr. Mumtaz Ali Bhutto son of Nawab Nabi Bux Bhutto be detained at such Central Prison Karachi for another ninety days as the Deputy Martial Law Adminis trator may decide from time to time and till such period as may be deemed necessary.

By order of the Deputy Martial Law Administrator.

(Sd.) Major‑General,

Deputy Martial Law Administrator.

This order is also almost identical to the orders passed first in the series. Since the impugned orders have been passed under the provisions of Martial Law Order No. 12, and not only the wires of this order but also its various provisions have been challenged, it is only appropriate that I may reproduce it. It was issued on 20th July, 1977, but was given retrospective effect from 5th July, 1977. It reads;

"Martial Law Order No. I2.‑(1) This Martial Law Order shall come into force at once and shall be deemed to have taken effect on the 5th day of July, 1977.

(2) Where with respect to any person the Chief Martial Law Administrator is of the opinion that, for the purpose of preventing him from acting in any manner prejudicial to the purpose for which Martial Law has been proclaimed or to the security of Pakistan, the public safety or interest, the defence of Pakistan or any part thereof, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of Martial Law, it is necessary to do, the C.M.L.A. may make an order‑

(o) directing that he be detained ;

(b) requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the order ;

(c) imposing upon him such restrictions as may be specified in the order in respect of his employment or business, and in respect of his activities in relation to the dissemination of news or propagation of opinions ; and

(d) otherwise regulating his conduct in regard to any matter as specified in the order.

(3) It shall not be necessary to provide to such person the grounds for such detention or restriction.

(4) Such person may, within twenty days of the making of an order under paragraph 2, submit a petition to the Chief Martial Law Administrator praying for relief.

(5) An order made under paragraph 2 shall not be called in question before any Court, Tribunal or other Authority including the Supreme Court, and a High Court."

It would be seen that Martial Law Order No. 12, in its original form, authorised only the Chief Martial Law Administrator to make an order of detention, and no limitation was placed on the period of time for which a person could be detained under its provisions. Subsequently, Martial Law Order No. 12 was amended by Martial Law Order No. 24 on 12th November, 1977 with the result that even a Martial Law Administrator was made competent to pass an order of detention. Some major amendments were, however, introduced by Martial Law Order No. 55 on 31st December, 1977, by which the period for which an order of detention is to remain in force was limited to 90 days and embargo of 12 months' time was placed on the period for which a person could be detained under successive orders passed against him. This period of 12 months now stands extended to two years by virtue of amendment introduced by Martial Law Order No. 55 issued on 15th September 1978, and this change is one of the serious points for consideration before us.

It is proper that I may now reproduce Martial Law Order No. 12 in its present form. It reads :‑

"Martial Law Order No. 12.‑This Martial Law Order shall come into force at once and shall be deemed to have taken effect on the 5th day of July, 1977.

(2) Where with respect to any person the Chief Martial Law Administrator (or a Martial Law Administrator) is of the opinion that, for the purpose of presenting him from acting in any .manner prejudicial to the purpose for which Martial Law has been proclaimed or to the security of Pakistan, the public safety or interest, the defence of Pakistan or any part thereof, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of Martial Law, it is necessary so to do, the Chief Martial Law Administrator (or a Martial Law Administrator) may make an order‑

(a) directing that he be detained ;

(b) requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the Order ;

(c) imposing upon him such restrictions as may be specified in the Order in respect of his employment or business, and in respect of his activities in relation to the dissemination of news or propagation of opinions ; and

(d) otherwise regulating his conduct in regard to any matter as specified in the order:

Provided that an order made under clause (a) shall not remain in force for a period exceeding three months unless, before its expiration, the period is extended by the Chief Martial Law Administrator or, as the case may be, the Martial Law Administrator by a period not exceeding three months ; and a person shall not be detained under successive orders for a period exceeding two years in the aggregate.

Explanation.‑For the purposes of this provision, an order in force immediately before the commencement of Martial Law Order No. 27 shall be deemed to have come into force on such commencement.

(3) It shall not be necessary to provide to such person the grounds for such detention or restriction.

(4) Such person may, within twenty days of the making of an order under paragraph 2, submit a petition to the Chief Martial Law Administrator (or a Martial Law Administrator, as the case may be) praying for relief.

(4‑A) (1) The Chief Martial Law Administrator or, as the case may be, the Martial Law Administrator shall prefer a petition submitted under paragraph 4 for the examination and report to a committee consisting.

(a) In the case of a petition submitted to the Chief Martial Law Administrator, of the Secretary, Ministry of Interior, Government of Pakistan, Islamabad and an officer of the Armed Forces of Pakistan not below the rank of Brigadier nominated by the Chief Martial Law Administrator ; and

(b) in the case of a petition submitted to a Martial Law Administrator, of Home Secretary of the province concerned and an officer of the Armed Forces of Pakistan not below the rank of Colonel nominated by the Martial Law Administrator concerned.

(2) After he has received the report of the committee on a petition referred to it, the Chief Martial Law Administrator or, as the case may be, the Martial Law Administrator may make such orders as he may deem fit.

(5) An order made under paragraph 3 shall not be called in question before any Court, Tribunal or other Authority, including the Supreme Court and a High Court."

It would be at once seen that Martial Law Order No. 12 makes quite a departure from the provisions of Article 10 of the Constitution, which prescribes certain safeguards as to arrest and detention, and this point was debated at great length before us. I may, therefore, usefully reproduce the provisions of Article 10 and also Articles 8 and 9, as these are also relevant for the purpose of appreciating the controversy before us.

Articles 8, 9 , and 10 are part of Chapter I of Part II of the Constitution under the heading "Fundamental Rights"

"Article 8.‑(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by' this Chapter, shall, to the extent of such inconsistency, be void.

(2) The state shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.

(3) ..

(4)

(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

Article 9.‑No person shall be deprived of life or liberty save in accordance with law.,

Article 10.‑(t) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention is continued after the said period of three months unless the appropriate Review Board has reviewed his case and reported, before the expiration of such period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation I.‑In this Article, "the appropriate Review Board" means,‑

(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court ; and

(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.

Explanation II‑The. opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity or making a representation against the order;

Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.

(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not m the public interest to furnish any documents, is produced.

(7) Within a period of twenty‑four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:

Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti national activity as defined in a Federal Law or is a member of any association which has for its objects, or which indulges in, any such anti‑national activity.

(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien."

The departure made in the provisions of Martial Law Order No. 12 from the provisions of Article 10 of the Constitution is sought to be 9efended on the ground of the provisions made in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 which reads:

"The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all the proceedings in any Court, insofar as they are for the enforcement of any of those Rights, shall stand suspended."

It is argued that since fetters contained in Article 10 do not operate for the reason of suspension of this right, as such, Martial Law Order No. 12 is a valid piece of legislation as it can be competently made under the Constitution, but for the provisions of Article 10.

This brings me to the first point raised by Abdul Hafeez Pirzada, petitioner No. 2 that as laid down by the Supreme Court of Pakistan in Begum Nusrat Bhutto v. The Chief of Army Staff, etc. (PLD 1977 SC 657), the Constitution continues to be the Supreme law of the land and the power of suspension of Fundamental Rights, as such, is not available to the Chief Martial Law Administrator, and therefore Fundamental Right contained in Article 10 of the Constitution is enforceable. He highlighted this argument by pointing out that the action of the Chief Martial Law Administrator taken by him on the 5th of July 1977 has been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case only to a limited extent, and just for a short period of time, so that general election in the country may be held, and the Chief Martial Law Administrator is, therefore, not competent to suspend the Fundamental Rights guaranteed by the Constitution to the people of Pakistan. Abdul Hafeez Pirzada further added that all actions by the Chief Martial Law Administrator, be these legislative measures, or, executive in character are to be tested on the touchstone of the law of necessity, and the suspension of Fundamental Rights cannot at all satisfy this test, for there is no conceivable reason why the citizens of Pakistan should be deprived of their basic human Rights.

In the alternate, Abdul Hafeez Pirzada submitted that even if it is assumed for the sake of argument that the Chief Martial Law Administrator has the power of suspending the Fundamental Rights, the provisions of Article 10 of the Constitution are, indeed, a part and parcel of the organic law of the land and, as such, these apply in full force and are enforceable under Article 4 of the Constitution which commands that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan," and further that "in particular‑

(a) No section detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) No person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) No person shall be compelled to do that which the law does not require him to do."

As yet another alternate, Abdul Hafeez Pirzada argued that the provisions of clause 3 of Article 2 of the Laws (Continuance in Force) Order, 1977 must be so construed as to conform to the emergency provisions of the Constitution contained in Article 233, which provides that "while a Proclama tion of emergency is in force, the President may, by Order declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, or any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force". This argument precisely was that during the Emergency only those Fundamental Rights, which are mentioned in clause (1) of Article 233, namely, the Fundamental Rights contained in Articles 15, 16, 17, 18, 19 and 24 would not prevent, or restrict the power of the State to make any law, or, to take any executive action which it would, but for the provisions of the said articles, be competent to make, or, to take, but so far as the Fundamental Rights contained in Articles 9 and 10 are concerned, these prevail even during the period of Emergency, and therefore the provisions of Martial Law Order No. 12 in so far as there contravene the various provisions of Article 10 are void to that extent.

Apart from these points, Abdul Hafeez Pirzada challenged the vires of Martial Law Order No. 12 on the ground that there are many other laws in force on the subject‑matter of detention such as West Pakistan Maintenance of Public Order Ordinance, Sind Crime Control Act, 1973 and various other Martial Law Orders and there was, therefore, no necessity for making yet another law on the subject. Ho further argued that even if it was necessary to enact another legal measure in the same legislative field, there was no necessity to make a departure from the constitutional provisions, so as to deprive the citizens of Pakistan of the very basic safe, of liberty guaranteed under the Constitution. In this behalf, he pointed out that Martial Law Order No. 12 militates against the Fundamental Guarantees relating to the right of personal liberty under Article 10 of the Constitution, in so much as the following specific safeguards stand breached:

(1) The limit on the maximum period for which a person can be kept under preventive detention.

(2) The communication of the grounds within fifteen days to the past on which the order has been made and affording the detenu the earliest opportunity of making a representation against the order of detention.

(3) The review of his detention by a quasi judicial Board consisting of three High Court judges with a right to be heard in defence at least every three months.

(4) The Review Board to decide the place of detention.

(5) The provision of maintenance of the family of the detenu.

Abdul Hafeez Pirzada further submitted that the extention in the period of detention from twelve months to two years made by Martial Law Order No. 55 is illegal and void on the ground of male fides, muse on 16 th September 1978, when this Order was issued, the petitioners were the only two citizens 'who had completed twelve months of continuous preventive detention, and the sole object behind the amendment was to frustrate the constitutional Petition No. D. 625 of 1978 filed by thorn which was then ending in the High Court, and also to keep them permanently in jail custody, so as to secure their elimination from politics as they are affective components of the top leadership of Pakistan People's Party.

Abdul Hafeez Pirzada then pointed out that the material basis on which the order of detention, so far as he is concerned, is the statement made by him in this Court in support of Constitutional Petition No. D. 807 of 1977 in which be had challenged the order of detention dated the 27th June 1978 and likewise the material basis of the order of detention passed against Mumtaz Ali Bhutto is also of the same nature. According to Pirzada, these statements were the foundation of the orders of detention dated 25th September 1978 passed against them and the same material cannot furnish a valid basis or grounds for making subsequent orders of detention, for, if such be the case then successive orders can be passed on the same material resulting in a continuous detention for two years, and even if the maximum period is extended from time to time by making amendments in Martial Law Order No. 12. In this behalf, it was further argued that there was neither the cogent material nor the necessary application, of mind for making the order of detention, and the considerations for their detention are totally extraneous to the scope of Martial Law Order No. 12.This argument was highlighted by pointing out that since proceedings by under Martial Law Order No. 31 initiated against them are yet pending, they are prohibited, by virtue of paragraph tin in any manner whatsoever, directly or indirectly, in any political activity, and the violation of this prohibition entails rigorous imprisonment upto 5 years, forfeiture of property and/or whipping upto 20 stripes, and therefore there could be possibly no basis for making of an order under the provisions of Martial Law Order No. 12.

These were the important points raised by the petitioner, Abdul Hafeez Pirzada, which may be noticed at this stage, leaving certain other points for discussion at a later stage. The petitioner, Mumtaz Ali Bhutto, adopted the arguments advanced by Abdul Hafeez Pirzada, and so far as he is concerned, reference to the pleas raised by the petitioner, Abdul Hafeez Pirzada, would be enough.

Mr. S. Sharifuddin Pirzada, learned Attorney‑General of Pakistan, who appeared as Law Officer of the Court, fully supported the vires of Martial Law Order No. 12, and the amicus curiae, Mr. Ali Ahmed Fazeel, Mr. Khalid Ishaque and Mr. Rehan‑ul‑Hassan Farooqui, President of the Karachi Bar Association adopted his arguments. Learned Attorney‑General submitted that the Fundamental Rights, as such, having been specifically suspended under clause 3 of Article 2 of the Laws (Continuance m Force) Order, 1977, the petitioners cannot base any claim on the Fundamental Rights contained in Article 10 of the Constitution. According to learned Attorney‑General the Supreme Court of Pakistan has clearly laid down in Begum Nusrat Butto's case that the Fundamental Rights have been validly suspended, and the plea that Martial Law Order No. 12 is violative of the Fundamental Rights contained in Article 10 is not available to the petitioners. Learned Attorney‑General further submitted that the law and order situation fully justified the endorsement of the provisions of Martial Law Order No. 12 on the day it was made, and the present situation in the country also furnishes an equal valid basis for making of that law, and the various provisions of Martial Law Order No. 12 fully satisfy the test on the touch stone of the doctrine of necessity as laid down by the Supreme Court of Pakistan.

Learned Attorney‑General emphasised that the Martial Law Administra tor has been fully authorised by the Supreme Court of Pakistan in Begun Nusrat Bhutto's case to make amendments in the Constitution which may even well amount to deviation from the specific provisions of that Instrument, and also to make the laws that can be competently made under the Constitu tion, and Martial Law Order No. 12, as originally made as well as in its present form with all amendments made therein is a valid piece of legislation.

In support of the argument that the Chief Martial Law Administrator is fully competent to suspend the Fundamental Rights, as such, learned Attorney‑General referred to the various provisions of the Constitution, and submitted that during the period of emergency declared under the Constitution, the right to move any Court for enforcement of all the Fundamental Rights conferred by Chapter I of Part II of the Constitution is capable of being suspended under the provisions of Article 233(2) the Constitution, and in case the Armed Forces are acting in aid of civil power by virtue of a direction issued under Article 245(1) of the Constitution, High Courts are totally debarred from even exercising any jurisdiction under Article 199, and this position has been clarified by a Full Bench of this Court in Niaz Ahmad Khan v. Province of Sind and others (P L D 1967 Kar. 604). According to the learned Attorney‑General, since actions such as these are permissible within the framework of the Constitution itself, it does not lie in the mouth of the petitioners to urge that the Chief Martial Law Administrator is devoid of legal capacity to suspend the Fundamental Rights, as such.

Having indicated the conflicting points of view that requite resolution, I f eel that the stage is set for me to make certain general observations regarding the Fundamental Rights conferred by Chapter I of Part II of the Constitution. Since the present case concerns the Fundamental Rights Co-relating to life and liberty. Particularly the safeguards as to arrest and detention, I will confine myself to the Rights conferred by Chapter I of Part II from point of view of personal freedom.

Preventive detention is an issue of gravest constitutional importance, as it affects personal liberty which is one of the great principles that lies at the core of constitutional democracy and gives content and meaning to it.

It is, therefore, not surprising that those who have an abiding faith in the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime in the Court of Law, where the correctness of allegations is examined in the light of the well settled rules of evidence, adduced in the full length trial held in public. The investing of power of detention without trial in the Executive is virtually making the same power of detention without trial in Executive is virtually making the same authority both the prosecutor as well as the Judge and this anomalous state authority of affairs inherently tends to arbitrariness.

Those who are entrusted with the task of administering the land have also a point of view. While recognising the value of human liberty, they lead they cannot afford to be oblivious of the need of the security of the plead or, the maintenance of public order. According to this point of view, personal' liberty has a value if the security of the State is not jeopardised, for, here can be no individual freedom if the collective freedom is destroyed. No Government can, therefore, afford to take risks in matters relating to the security of the State. Liberty according to this point of view has to be measured against community's need for security against internal and external peril.

It is also obvious that the complex system of Government of a consti tutional democratic State is essentially designed to function under normal peaceful conditions and is often unequal to the exigencies of a National crisis. When there is an emergency arising out of National crisis, a constitutional democratic Government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions. The Government has, therefore, to assume larger powers in order to meet the crisis, and that means that the people's individual rights would have to be curtailed. There can be no doubt that Crisis Government means a strong arbitrary Government, and as pointed out by Cecil Carr in his article and "Crisis Legislation in Great Britain", published during the Second World War, dispute between Government and Liberty crisis means in the eternal disp quote a classic remark--more Government and less liberty . I am tempted to of Scrutton, L. 1. made in his judgment in Rounfeldt v. Phillips (1918 35 TLR 46)"war cannot be carried on according to the principles of Magna Carts, and l^ there must be some modification of the liberty of the subject in the interest--activity, and the violation of this prohibition entails rigorous imprisonment of the State". The maxim "salus populi sepreme lex esto", that is, public safety is the highest law of all, must prevail in times of National crises and the people are to submit to temporary abdication of their constitutional liberties in order to enable the Government to combat the crisis situation which might otherwise destroy the very existence of the Nation.

It is with a view to balancing these conflicting view points that the framers of Constitutions make express provisions for the preventive detention and at the same time insert safeguards to prevent abuse of that power and to mitigate the rigour of harshness of those provisions.

While dealing with the emergency powers which may be assumed by a constitutional democracy to deal effectively with a National Crises, reference to celebrated writ of habeas corpus is unavoidable. It is the most renowned contribution of the English Common Law to the protection of human liberty. It is one of the most ancient writs known to the Common Law of England and is said to be of immemorial antiquity "throwing its roots deep into the genius" of the Common Law. As pointed out by Holdsworth in Vol. I of his "History of English Law", its position as the most efficient protector of the liberty of the subject was unquestioned after the great Rebellion". It became one of the most important safeguards of the liberty of the subject, and as pointed out by Lord Halsbury, L. C. in Cox v. Hakes ((1890) 15 A C 506), it has throuhout been jealously maintained by Courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege.

Now, in the United States of America, the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest, is not expressly declared in the Constitution, but it is recognised in Article 1, Placitum 9, clause (2) of the Constitution, which declares that;

"The privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it."

Collay in his "General Principles of Constitutional Law in the U. S. A". points out;---

"The privilege of the writ consists in this : that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper Court or Magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted. The suspension of the privilege consists in taking away this right to an immediate bearing and discharge, and in authorising arrests and detentions without regular process of law ? The suspension of the privilege of the writ does not legalise what is done while it continues ; it merely suspends for the time being the remedy of the writ?"

The decision of Chief Justice Taney in Ex parte Merrymen (17 Fed. Cas. 144), contains the leading' American discussion of the suspension. of the Writ of habeas corpus in a temporary emergency. In the Spring of 1861, the eve of the American Civil War, President Lincoln was confronted by a state of open insurrection in the state of Maryland following the fall of Fort Surter on April 15. Railroad communication to the northern United States had been severed by the Marylanders on April 20 and the Sixth Massachusetts Militia reached Washington only after fighting its way through the City of Baltimore. In these circumstances, and under the increasing threat of Secession, President Lincoln issue) a Proclamation on April 27, authorising General Winfield Scot to suspend the writ of habeas corpus "at any point on or in the vicinity of the military line which is new, or shall be used between the City of Philadelphia and the City of Washington". Another Proclamation of July 2 extended this power to a similar area between Washington and New York. John Merryman who was a Marylander openly recruited a Company of soldiers to serve in the Confederates Army and became their drill master and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry. He applied for a writ of habeas corpus and, despite the Presidential authorisation suspending the writ, the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and President cannot exercise it except as authorised by law. History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis, but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it. It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possession of man, the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past, though very sparingly.

So also in Great Britain the writ of habeas corpus which, as May points out, "is unquestionably the first security of liberty" and which "protects the subject from unfounded suspicions, from aggressions of power" has been suspended, again and again, in periods of public danger or apprehension. Parliament, convinced of the exigencies of the situation, has on several occasions suspended, for the time being, the rights of individuals in the interests of the State. This of course has bad the effect of arming the executive with arbitrary power of arrest by making it impossible for a person detained to secure his release even if his detention is illegal. It has resulted in great diminution in the security of personal freedom, for, suspension of habeas corpus is verily, in substance and effect, suspension of the right of personal liberty granted in Magna Carta. But it has been justified on the ground that whatever be the temporary danger of placing such power in the hands of the Government, it is far less than the danger with v. which the Constitution and the society are threatened, or to put it differently "when danger must be sacrificed to the paramount interest of the State". Moreover, on each occasion when the Writ of habeas corpus has been suspended, the suspension of the writ has invariably been followed by an Act of Indemnity "in order to protect officials concerned from the consequences of any incidental illegal acts which they might have committed under cover of suspension of the prerogative writ". During the period of emergency, many illegalities might have been committed by the executive in order to deal with a crisis situation and all such illegalities have been retrospectively legalised by an Indemnity Act.

I may now turn to consider the provisions under our Constitution relating to the security of person and the safeguards as to arrest and detention incorporated in Articles 9 and 10. Both these Articles are couched in negative language. The Command of the Constitution contained is that no person shall be deprived of life and liberty save in 'accordance with law, and Article 10 concerning preventive detention also states in negative terms that `no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan and no such law shall authorise the detention of a person for a period extending three months unless the appropriate Review Board has, after affording him an opportunity of being heard, in person, reviewed his case and reported, before the expiration of the said period, that there is in its opinion, sufficient cause for such detention .". The safeguards mentioned in these Articles govern the procedure to be followed by the authority vested with the power of depriving a person of his life or personal liberty.

Our Constitution thus ensures that no person shall be deprived of his life and liberty save in accordance with the law, and that any law providing for preventive detention shall have the fetters contained in Article 10, otherwise to the extent of the inconsistencies shall be void.

A question may be asked whether the contents of Article 10 do at all constitute a Fundamental Right since the provision has been made therein for certain safeguards that are meant to be contained in a statutory law. In other words, Article 10 just prescribes the procedure about the exercise of certain powers if these are to be vested in an authority by a law made by an ordinary legislation, and therefore no Fundamental Right as such is conferred by Article 10 itself. In Mrs. Nabiba Mani v. Federation of Pakistan (PLD 1974 Lah 153), Nasim Hassan Shah, J. posed the same question and gave the answer as follows;

"The question, however, that arises in this case is whether proceedings wherein it is complained that the provisions of Article 10 have not been observed, amounts to praying for the enforcement of Fundamental Rights. In other words, whether the provisions of Article 10 can be deemed to be at all' in the nature of the Fundamental Rights. We think that the provisions relating to the question of arrest and detention of a person as well as the provisions relevant to the continuance of his detention are provisions in the nature of law belonging to the category of Statute Law, though enacted in the Constitution. The above provisions, doubtless, are contained in Article 10 which Article falls within the Chapter relating to Funda mental Rights, but, in essence, the provisions in question are an ordinary law, not in the nature of pure constitutional law, but laws of a sub‑constitutional charter. This view is supported by the dictum of the Supreme Court of Pakistan in Abdul Aziz v. Province of West Pakistan P L D 1956 S C (Pak.) 499 and Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat All Khan P L D 1966 S C 286. In the first mentioned case, it was observed, while discussing the nature of Article 7 of the 1956 Constitution, which in turn is similar to Article 10 of the present Constitution, that;

When Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention it is, clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law.

While constitutions are largely concerned with laying down principles which shall be followed in the making of laws, there is nothing to prevent a Constitution making body from making law of a special nature dealing with a special subject in the course of making a Constitution. In Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub‑constitutional laws relating to that subject. In so doing, the Article makes fresh law, of a detained character, belonging to the category of statute law, albeit enacted in the Constitution."

In the second mentioned case, the validity of section 41 of the East Pakistan Public Safety Ordinance was under challenge. It was found that section 41 per se was in conflict with sub‑para. (5) of para. 2 of the Fundamental Rights given in the 1962 Constitution. In spite of it, Mr. Justice S. A. Rehman held that section 41 of the Ordinance was not liable to be struck down because the above sub‑para. (5) was by itself not a Fundamental Right and that the provisions of the aforesaid paragraph have to be read as a part of section 41,of the Ordinance. This proposition was laid down in the following words;

"But on the view I have taken of the effect of sub‑paragraph (5) of paragraph 2 of the Fundamental Rights that constitutional provision must be deemed to be a part of the law contained in section 41 and if they are read together it would be difficult to maintain that un reasonable restrictions on the right of free movement of a citizen has been placed by this measure within the meaning of paragraph 5 of the Fundamental Rights,"

It would be noticed that Nasim Hasan Shah, J. sought support for his view from the decision of the Supreme Court in two cases. In the first case of Abdul Aziz v. Province of West Pakistan, the Supreme Court was dealing with the provisions of the Punjab Safety Act, 1949, which authorised preventive detention for a period exceeding three months in contravention of the provisions of Article 7 of the Constitution of 1956 (parallel of Article 10 of the Constitution of 1973). The Act was amended immediately upon the coming into force of the Constitution by means of an Ordinance made by the Governor of West Pakistan entitled "The West Pakistan Preventive Detention Laws (Amendment) Ordinance, 1956", whereby sub sections (6), (7) and (8) of section 3 were replaced by new subsections, providing specifically that the detenu under the Act shall, as soon as may be, be informed of the grounds on which hs has been detained, and that he may make a representation against the order. Further, where the order of detention was for a period exceeding three months, the authority making that order was to place before the Advisory Board constituted under sub section (8) the grounds of the detention and any representation made by the detenu. The Ordinance, however, lapsed six weeks after the commencement of the sitting of the Provincial Legislative Assembly, in view of the provisions of Article 102 of the Constitution of 1956, with the result that subsections (6). (7) and (8) of section 3 ceased to have effect. The detenus in that case, therefore, challenged their detention on the ground that the period of detention ab initio was for six months, and in the absence of "anticident consultation" with the Advisory Board, the detention was void. It was in this context that the Supreme Court made the observation quoted by Nasim Hasan Shah, J. The entire discussion centred round the question whether or ‑not the provisions of Article 7 of the Constitution should be read as a part of the Punjab Public Safety Act, 1949. In Government of East Pakistan v. Rowshen Bljaya Shaukat Ali Khan's case also similar question arose in respect of the provisions of section 41 of the East Pakistan Public Safety Ordinance, 1958. The case of Abdul Aziz v. Province of West Pakistan was examined by this Court in Zarina Gauhar v. Province of Sind (PLD 1976 Kar. 1281) and it was observed as follows :‑

"It is true that the judgment itself uses the expression "sub‑constitution" and elsewhere referring to a provision already enacted in the Code of Criminal Procedure, the case does not fall in the category of that Code or any law. But these merely are descriptive of the character of a law and not of its status. Indeed in the very paragraph in which the expression "organic law" occurs it is stated that the clause in question repeats certain provisions which are already included in a statute, namely, the Criminal Procedure Code "but with higher and all embracing authority". If it was their Lordships' intention to hold that Article 9 was ordinary law in the sense in which the Criminal Procedure Code is ordinary law and of the same degree of validity, then obviously it would not have "higher and all embracing authority". If the Constitution chooses to provide for a matter which is normally enacted by ordinary non‑constitutional statutes there is nothing that I can see which would prevent the framers of the Constitution from doing so. This fact, however, that such provisions are of the kind which are ordinarily made by way of simple legislation or even are not of the character which it is necessary for a Constitution to specify would not lower the validity which they would have as a part of the. Constitution. It would not be possible, for example, to say that if the constitution were to provide that the death penalty is abolished then such a provision occurring in the Constitution could be repealed by ordinary legislation. I am, therefore, quite unable to hold that because the Supreme Court spoke of the provision in Article 9 as being of a sub‑constitutional character or of a non‑organic character or as statute law that makes them any the less a part of the Constitution or of the provisions which confer Fundamental Rights. A petition, therefore, which is based upon the provisions of Article 9, even though it does not challenge the validity of the law in question but merely the executive action taken under it would still be a petition for the enforcement of a Fundamental Right and the embargo in Article 139 (3) would apply as much or as little as if the validity of the law was being called in question."

There is, therefore, nothing in both these judgments of the Supreme Court to warrant the proposition that the contents of Article 10 of the Constitution pertaining to preventive detention do not confer a Fundamental Right. In my view, the correct position is that while Article 10 prescribes B the procedure for the governance of the power to detain a person, it also grants certain rights to the detenu, such as the limitation on the duration of the detention, opportunity of hearing before Review Board consisting of three High Court Judges, etc, Article 10, like certain other Articles relating to Fundamental Rights is couched in negative language. The negative language imposes a limitation on the power of the State and thus declares corresponding guarantees of the individual to those Fundamental Rights. The limitations and the guarantees are complementary. The limitation on the State action couched in negative form is the measure of protection of the individual. It is apparent that most categories of the Fundamental Rights are in positive as well as in negative language. A Fundamental Right couched in negative language accentuates, by reason thereof, the importance of that `Right. The negative language is worded to emphasise the immunity from the State action as a Fundamental Right. The language of Article 10 in so far as it provides safeguards in a law relating to preventive detention really furnishes guarantees to the individual against State action and this creates a Fundamental Right protected by the Constitution.

A question may be posed as to effect of the suspension of the Fundamental Rights conferred by Articles 9 and 10, as such. The effect, it may possibly be argued, is that consequent upon such suspension, no judicial remedy would be available if a person is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty, Answer to this question, in my humble view, should plainly be in the negative. The suspension of the right conferred by Articles 9 and 10 cannot have the effect of depriving of an aggrieved person from approaching the Court with the complaint regarding deprivation of life or liberty by an authority on the score that no power has been vested in the authority to deprive a person of life and liberty. The procedure about the exercise of power of depriving a person of his life or personal liberty necessarily pre supposes that the substantive power of depriving a person of his life o personal liberty has been vested in an authority and that such power exists. Without the existence of such substantive power, no question can arise about the procedure for the exercise of that power. Although, therefore, there is no reference to substantive power in Articles 9 and 10, the said Article would cover both the existence of the substantive power of depriving person of his life and liberty as well as the procedure for the exercise o that power.

The pre‑supposition of the existence of substantive power to deprive a person of his life or personal liberty in Articles 9 and 10 even though these only mention the procedure would not necessarily point to the conclusion that in the event of suspension of the right, the suspension would also dispense with the necessity of the existence of the substantive power. The co‑existence of substantive power and procedure that should be contained in the law for depriving a person of life and liberty which is implicit in Articles 9 and 10 would not lead to the result that even if there is suspension of the right regarding the procedure, the suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right contained under Article 10 may have the effect of dispensing with the necessity of prescribing the procedure for the exercise of substantive power to deprive a person of his life or liberty, but it cannot have the effect of permitting the authority to deprive a person of his life or personal liberty without existence of substantive power. The close bond which exist between substantive power of depriving a person of his life or persona liberty and the procedure for the exercise of that power if the right contained in Articles 9 and 10 were in operation would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of substantive power would not do away with the compulsion regarding the existence of that power.

I may point out something obvious that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of his life and liberty without the authority of law. The same was the position under the penal laws. It was an offence under the Penal Code to deprive a person of his life or liberty unless such a course was sanctioned by the laws of the land. An action was also maintainable under the law of Torts for wrongful confinement in case any person was deprived of his personal liberty without the authority of law. In addition to that, we had section 491 of the Code of Criminal Procedure which provided the remedy of habeas corpus against detention without the authority of law.

Even in the absence of Articles 9 and 10 of the Constitution, the State has, therefore, no power to deprive a person of his life or liberty without the authority of law. This is essential postulate and basic assumption of the F rule of law. Without such sanctity of life and liberty, the distinction between lawless society and one governed by law would cease to have any meaning.

At his stage I may consider an important point raised before us whether Fundamental Right contained in Article 10 exists as a distinct and separate Right, as a part of organic law of the land, independently and apart from Article 10, so as to be capable of enforcement even when the Fundamental Rights, as such, stand superseded by virtue of clause 3 of paragraph 2 of the Laws (Continuance in Force) Order, 1977. The answer to this question necessarily leads me to state some historical background. Ever since the Great Charter of Liberties of England commonly known as the Magna Carta was granted, it has been recognised that no one shall be imprisoned, or, deprived of his liberty except by the authority of law of the land. That is why Bracton said about the middle of the 13th Century, "the King himself ought not to be under man but under God and under the law, because the law makes the King. Therefore, let the King attribute to the law what the law attributes to the King".

Blackstone in his Commentaries on the "Laws of England". Vol. I, 4th Edn., p. 105 stated the principle in these terms : "...the law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct; for impri sonment or restraint, unless by due course of law. It cannot ever be abridged at the mere discretion of the Magistrate, without the explicit permission of the laws. Here again, the language of the Great Charter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by The Law of the land." (Emphasis supplied).

Since then, the validity of this principle has never been doubted and the classical statement of it is to be found in the oft‑quoted passage from the judgment of Lord Atkin in Eshugbavi Eleko v. Officer Administering the Government of Nigeria (AIR 1931 P C 248) where the learned Law Lord said:

The Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the Executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.

And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive."

Since in this country prior to the commencement of the Constitution, Courts were administering British jurisprudence, this constitutional principle was equally applicable here. That was the direct result of the binding authority of the decision of the Privy Council in the aforementioned case. But quite apart from that. the Courts in this Sub‑Continent uniformly accepted this constitutional principle as part of the law of the land, vide Secretary of State for India v. Hari Bhanji (ILR 5 Mad 273). In P. K. Tare v. Emperor (AIR 1943 Nag 26) the aforesaid passage from the judgment of Lord Atkin has been quoted with approval and pointed out that before the executive can claim power to override the rights of the subject "it must show that the Legislature has empowered it to do so". The learned Judge also referred to the following passage from the dissenting judgment of Lord Atkin in Liversidge v. Anderson (1942 A C 206)

"It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive ; alert to see that any coercive action is justified in law," and, pointing out that Lord Macmillan and Lord Wright also agreed with this principle, observed that these principles of liberty‑--- "to which Lord Atkin refers, apply as much to India as elsewhere."

So also in Vimlabai Deshpande v. Emperor (AIR 1945 Nag 8), the same two passages, one from the judgment of Lord Atkin in Eshugbayi's case (AIR 1931 P C 248) and the other from the judgment in Liversidge's case were referred to with approval by Bose and Sen, JJ.

It was also accepted by a Division Bench of the Calcutta High Court consisting of Malik and Remfry, JJ. in Jitendranath Ghosh v. The Chief Secretary to the Government of Bengal (AIR 1932 Cal 743) at page 757 that‑‑‑

" .... ... in accordance with British jurisprudence, and with the jurisprudence of British India, no member of the executive can interfere with the liberty or property of a British subject, or of a foreigner in our land, except on the condition that he can, and, if duly called upon, must support the legality of his action before a Court of justice."

The Division Bench pointed out that ‑‑ . "the Courts can, and in a proper case must, consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the Legislature ; Eshugbayi Eleko's case A I R 1931 P C 248 Ameer Ali, A. C. J. and S. R. Das, J. also quoted with approval in In re Banwarllal Roy(1944 48 CWN 766) the aforesaid passage from the judgment of Lord Atkin in Eshugbayi Eleko's Case and relied on the decision in Atendranath Ghosh's case and particularly the observa tions from the judgment in that case which I have just reproduced. The observations clearly show that in the Indo‑Pak Sub‑Continent, even in pre -Constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law. The principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was a recognised principle as a part of the law of the land and uniformly administered by the Courts. Sanctity of life and liberty was not, therefore, something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish since its civilised existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty ; it existed and was in force before the coming into force of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept. This concept has grown and acquired dimensions with the march of civilization.

But when the Constitution was enacted some aspects of this principle of law were expressly recognised and given constitutional embodiment in different articles of the Constitution. Thereafter, it can be very easily said that these principles did not remain in the realm of unwritten law, for it is difficult to comprehend how these principles could continue to have a distinct and separate existence, independently and apart from the constitutional status granted to them. Once a principle of law is recognised and incorpor ated in the Constitution and forms part of it, it cannot have any separate existence apart from the Constitution, unless it is also enacted as a statutory principle by some positive law of the State.

This position indeed becomes incontrovertible when the principle of law as a Fundamental Right has been defined in its scope and ambit and limitations have been imposed upon it in the language of Articles 9 and 10 of the Constitution. When the Constitution makers have clearly intended that the right to Personal Liberty should be subject to certain limitations, it would be contrary to all cannons of construction to hold that the same right continues to exist independently, free from such limitations or subject to pre‑constitutional limitations.' Such a construction would defeat the object of the Constitution‑makers in imposing limitations under Article 10 of the Constitution. The position indeed will be anomalous, for the consequences of such an interpretation would be that even though Article 1 is amended by virtue of a constitutional amendment, the detenu would be entitled to ignore the amendment and challenge the order of detention on the ground that it is made otherwise than in accordance with the law as it prevailed during the pre‑constitutional period. I am, therefore, of the view that the Fundamental Right conferred by Article 10 if suspended cannot be enforced on the plea that the same right is available unless it is shown that it is guaranteed by some other means.

This is now the appropriate stage for me to take up the question debated ‑t at the Bar at great length, whether the Supreme Court in Begum Nusrat Bhutto's case has validated the action of the Chief Martial Law Administrator as contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. The language of this clause is very clear and has been couched in unambiguous words as follows :‑

"The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all the proceedings in any Court, in so far as they are for the enforcement of any of these Rights, shall stand suspended."

This clause is divided in two parts (a) the Fundamental Rights conferred by Chapter I of Part 11 of the Constitution shall stand suspended, and (b) all proceedings in any Court, in so far as they are for the enforcement of any of these Rights, shall stand suspended. The plain and clear language can have no other meaning, but that the Fundamental Rights, as such, stand suspended, so also all the proceedings already filed in any Court in so far as they are for the enforcement of any of the Fundamental Rights.

This language is not akin to the provisions of clauses (1) and (2) of Article 233 of the Constitution. Article 233, however, sets out certain important consequences of the Proclamation of Emergency and I may, therefore, reproduce it as under;

"233.‑(1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force.

(2) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any that the right to move any Court for the enforcement of such of the Funda mental Rights conferred by Chapter I of Part II as may be specified by his in the order, and any proceedings in any Court which is for the enforcement or involves the determination of any such question as to the infringement o any of the Rights so specified, shall remain suspended.

The question then arises as to what is the effect of the suspension of a right of a person to move any Court for the enforcement of the Rights conferred by Articles 9 and 10 of the Constitution. One obvious result of the above is that no one can rely upon these Articles with a view to seek relief from any Court.

In Ch. Manzoor Elahi v. Federation of Pakistan (PLD1975SC66) Muhammad Yakub Ali, J. (as he then was), however, held that any law, or, action which is violative of the Fundamental Rights conferred by Articles 9 and 10 is void under Article 8 of the Constitution, and since these Articles are not included in Article 232 (1), the State shall not frame any law even while the Proclamation of Emergency is in fore in contravention of these rights, and that if such law is enacted any act done or proceedings undertaken under it shall be struck down by the High Court under Article 199 as of without lawful authority and of no legal effect. In the words of his Lordship;

"This result will follow even if the President has by an Order declared that the right to move any Court for the enjoyment of these Funda mental Rights shall remain suspended while the Proclamation of Emergency is in force, for, as said earlier, Article 233 does not permit the State to make laws which are inconsistent with the Fundamental Rights other than the Rights specified in Articles 15, 16, 17, 18, 19 and 24. This power is independent of the power of the High Court to enforce Fundamental Rights conferred by Chapter I of Part 11 of the Constitution. Consequently, if a person is taken into custody under a law which is violative of Articles 9 and 10, a High Court will under Article 199 (1) (b) issue a writ of Habeas Corpus and direct his release forthwith.

Our Constitution thus ensures that no person shall be deprived of his life and liberty save in accordance with law and that the right conferred on every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 232."

Salahuddin Ahmed, J. fully concurred with this view, and in the conclud ing portion of his judgment held.

"A Fundamental Right not suspended under Article 233 of the Constitution remains fully operative, and every body in Pakistan is under an obligation to respect it. The mere fact that an aggrieved person is temporarily prevented from moving any Court for the enforcement of a Fundamental Right does not relieve an authority of its obligation to comply with it."

It was on the basis of this view that the petitioners advanced the plea that the Supreme Court of Pakistan has granted only a limited validity to the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, and the validity is only to the extent as the suspension of the Rights envisaged by Article 233 of the Constitution, and since Articles 9 and 10 are not capable of suspension under the Constitution, all that is permissible is that the right to move any Court for the enforcement of the Fundamental Rights conferred by these Articles has been suspended, but the fetters contained in Article 10 of the Constitution do apply to Martial Law Order No. 12, and therefore this Order, in so far as it is inconsistent with the provisions of Article 10 of the Constitution, is void to that extent.

The argument that the Supreme Court has granted a limited validity to the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 has been advanced on the basis of certain observations contained in the judgment of the Supreme Court in Begum Nusrat Bhutto's case.

It would be noticed that the Supreme Court was also dealing with a case of detention under the provisions of Martial Law Order No. 12, and the vires of this Order was challenged on the ground that it contravened the provisions of Article 10 of the Constitution. The argument advanced in this behalf by Mr. Yahya Bakhtiar as noticed by their Lordships of the Supreme Court was :

"The contention of Mr. Yahya Bakhtiar is that the right to enforce the Fundamental Rights could be suspended only during the continuance of an Emergency under Article 232 of the Constitution, and that too in terms of an Order made by the President under clause (2) of Article 233 thereof, but the Emergency already proclaimed in Pakistan has since been revoked by the respondent with effect from the 15 th of September, 1977, with the result that the Fundamental Rights stand revived."

The entire argument proceeded on the basis that the Fundamental Rights are available, and therefore the orders of detention had resulted in a flagrant violation of the detenu's Fundamental Right as contained in Chapter 1, Part II of the Constitution, particularly Articles 9, 10, 17 and 25 thereof, which relate to the security of Pakistan, safeguards as to arrest and detention, freedom of association, and equality of all citizens before law.

In reply to this argument, the stand taken by Messrs A. K. Brohi and S. Sharifuddin Pirzada, however, was that in spite of the revocation of Emergency, the Fundamental Rights remain suspended under Article 2(3) of the Laws (Continuance in Force) Order, 1977, which is independent of the Emergency contemplated in Article 232 of the Constitution.

In the final analysis the argument that found favour with their Lordships of the Supreme Court was the one submitted by Messrs A. K. Brohi and S. Sharifuddin Pirzada. It is noteworthy that my Lord the Chief Justice, who gave the opinion for the Court, framed the question for consideration as under;

"The question, therefore, is whether the provisions embodied in this behalf in clause (3) of Article 2 of the Laws (Continuance in Force) Order is valid in the light of the principles governing the application of the law of necessity."

Having held in the earlier part of the judgment that the situation contemplated by the provisions of Article 232 of the Constitution existed in Pakistan, the Chief Justice then considered whether the Chief Martial Law Administrator was entitled to make an Order of the kind contained in clause 3 of Article 2 of the Laws (Continuance in Force) Order, 1977. In this regard, the observation made by his Lordship may be reproduced in his own words; "the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chef Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce the Fundamental Rights shall be suspended. It was clearly an Order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."

On this view of the case, it was held that;

"As the present petition under clause (3) of Article 184 of the Constitu tion is intended for the enforcement of certain Fundamental Rights of the detenu, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July, 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that Martial Law Order No. 12 under which detentions have been ordered is not valid, or, that the detentions are male fide." (Emphasis supplied).

The final position summed up by the Supreme Court in the words of my Lord the Chief Justice is;

"(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an. Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been mace under clause (2) of Article 233 of the Constitution."

Although the reason for granting validity to the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, stated by their Lordships is that an Order of that kind could have been made under clause (2) of Article 233 of the Constitution, but the question is whether their Lordships of the Supreme Court have granted a partial validity to clause (3) of paragraph 2 of the Laws (Continuance in Force).Order, 1977 only to the extent of suspension of Fundamental Rights envisaged by Article 233 of the Constitution. I find nothing in the judgment of the Supreme Court to support the proposition that full validity to the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 has not been granted. Their Lordships were fully conscious of the different phraseology of the language of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, than the language employed by the framers of the Constitution in clauses (1) and (2) of Article 233. It is true that in certain portions of the judgment my Lord the Chief Justice has referred to the language of clause (3) of Article 233, i.e. "the right to enforce the Fundamental Rights" in respect of clause 3 of Article 2 of the Laws (Continuance in Force) Order, 1977, but from the question framed as well as the conclusions reached, it is clear that the validity granted to the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 is to the full extent. After all the Supreme Court was not testing the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 from the point of view whether these conform to the provisions of Article 233 of the Constitution. It is also to be noticed that the Proclamation of Emergency already declared under Article 232 of the Constitution had been revoked with effect from 15th September, 1977. The Supreme Court was, therefore, examining the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 on the test of the touchstone of the Doctrine of Necessity, and not on the ground of the vices of the Constitutional provisions. Their Lordships were satisfied that the relevant provisions fully conformed with the Doctrine of Necessity and granted validity to the full extent, and not partially as has been canvassed by the petitioners.

Learned Attorney‑General has rightly pointed out that in the later case of Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others (PLD1978SC121), the Supreme Court has explained their decision in Begum Nusrat Bhutto's case on this aspect and stated that the Fundamental Rights stand suspended by virtue of the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. In that case the first contention raised before the Supreme Court was that the prosecution of the petitioner in that case was void on the ground that he had been earlier prosecuted before three different forums, and he could not, therefore, be prosecuted again by the Sessions Judge, as it was against the provisions of Article 13 of the Constitution of Pakistan, 1973, under which no person can be prosecuted or punished for the same offence more than once. The Supreme Court rejected this plea on the ground that Fundamental Right No. 13 stood suspended by the provisions of Article 2(3) of the Laws (Continuance in Force) Order, 1977. This is what their Lordships observed;

"As fur the first contention, it is to be observed that the Fundamental Rights conferred by Chapter I, Part II of the Constitution stand suspended at the moment. Article 2 (3) of the Laws (Continuance in Force) Order, 1977 provides

"2 (1) .., ... ... ... ...

(2) ... ... ... ... ... ...

(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended."

This Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff P L D 1977 S C 657 found the above to be good law and held that the Fundamental Rights stood suspended by virtue thereof. No proceedings for their enforcement are, therefore, presently competent."

Their Lordships of the Supreme Court also then examined the case with a view to ascertain whether the provisions of Article 13 were at all attracted. After considering the factual background, their Lordships held that since in none of the forums the prosecution against the petitioner was pursued to the end, with a view to its accomplishment, it could not be said that the petitioner's trial was in any way violative of Article 13 of the Constitution. I may also quote the following passage of the judgment;

"The petitioner was, in the first instance, tried by the Military Court, but Martial Law had lifted before judgment could be pronounced and the case thus remained undecided. He was then tried by a Magistrate, before whom the trial was still in progress when the case was ordered to be transferred to the Sessions. In none of these forums was prosecution pursued to the end, with a view to its accomplishment ; and it cannot be said that the petitioner's present trial is in any way derogatory to the principles of autrefols acquit or autrefols convict, or violative of Article 13 of the Constitution assuming its provisions were operative, which however, is not the case.

(Emphasis supplied)

In view of these categorical statements from the Supreme Court that in Begum Nusrat Bhutto's case, the provisions of clause (3) of paragraph 2 of the Laws (Continuance in Force) Order, 1977 have been found to be a good law and the Fundamental Rights stand suspended by virtue thereof and that it cannot be assumed that Article 13 of the Constitution is operative, I feel no hesitation in reaching the conclusion that the Supreme Court has categorically held that the Fundamental Rights conferred by Chapter I of Part II stand suspended as per clear language of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, and this provision is not to be construed, so as to have the same meaning as contained in clause (2) or Article 233 of the Constitution.

On this view, the argument based on clause (1) of Article 233 read with Article 8 of the Constitution that the embargoes contained in Article 10 one the powers of the State to make a law exist even during the Emergency is not available to the petitioners.

An argument was advanced that neither in Begum Nusrat Bhuttos case nor in Alamdar Hussain Shah's case were their Lordships of the Supreme Court concerned with the distinction between the suspension of Fundamental Rights, as such, and the right for enforcement of the Fundamental Rights, and therefore this question is open for consideration before this Court. I feel no hesitation in rejecting this plea, because I cannot conceive that their Lordships were not conscious of the difference in the language employed in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, and the Language of Article 233 of the Constitution. Indeed, in my opinion, this question after the pronouncement of the Supreme Court in Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi (P L D 1978 S C 121) in very categorical terms, is not open for consideration by the High Court. I feel fortified in this view by the decision of this Court in Rtutam Ali v. Martial Law Administrator, zone 'C' and 3 others P L D 1978 Kar. 736, in Nazeer Ahmed v. Lt.‑Col. Abbas AU Khan (P L D 1978 Kar. 777), a Full Bench of the Baluchistan High Court in Khudiadad v. Deputy Martial Law Administrator, Zone 'C', Baluchistan arid another (P L D 1978 Quetta 177) and the Lahore High Court in Saeed Ahmad Malik v. Federation of Pakistan (P L D 1978 Lah. 1218). In all these cases, it has been held that the Supreme Court in Begum Nusrat Bhutto's case has held that the Fundamental Rights, as such, stand suspended by virtue of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977.

The next point that I may now take up for consideration is whether Martial Law Order No. 55 by which the maximum limit on the period of detention was extended from twelve months to two years is void on the ground that it does not satisfy the test on the touchstone of the Doctrine of Necessity. It was argued the Doctrine of Necessity can never permit or condone the violation of Fundamental Right relating to personal liberty. and therefore Martial Law Order No. 55 is beyond the permissible limits of the law making authority of the Chief Martial Law Administrator.

This argument ignores the effect of the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order 1977, by which the Fundamental Rights, stand superseded. Since the embargo on the maximum period of detention contained in Article 10 does not apply to the law‑making authority of the Chief Martial Law Administrator, he is competent to make any law which can be made under the Constitution. The test of such law is not t be made on the touchstone of the Fundamental Rights, but on the Doctrine of Necessity, for otherwise the constraints of the Fundamental Rights would be introduced by the back door when such constraints stand removed by the provisions of clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. In similar context, the Supreme Court in Abdul Baqi Baloch v Government of Pakistan (P L D 1968 S C 313) while upholding the vires of the Defence of Pakistan Ordinance, on the ground that it could not be challenged by reason of any inconsistency with any of the Fundamental Rights, the enforcement whereof had been suspended, held as follows :‑‑

"The third and last challenge posed to the validity of the Defence of Pakistan Ordinance is on the basis of the language of clause (2) of Article 6 of the Constitution. This too is untenable, for, as long as the Fundamental Rights remain suspended, this question cannot be agitated in the Courts. For, to declare the Ordinance invalid would be tentamount to enforcing a Fundamental Right, which cannot be done as long as the President's Order No. F. 24 (1)/65‑Pub. Dated the 6th September 1965 and the 16th September 1965, are in force. Therefore, what cannot be done directly cannot be allowed to be done indirectly."

In reply to the argument under consideration I cannot do better than what the Supreme Court has stated in the above passage, that as long as the Fundamental Right conferred by Article 10 of the Constitution remains suspended, I cannot declare that Martial Law Order No. 12 is void with reference to any argument based on that Fundamental Right.

Moreover, the maximum period of detention prescribed under Article 10 of the Constitution does not apply in several cases mentioned in the Proviso to clause (7) of that Article. I have already reproduced the Proviso in extenso in the earlier part of this judgment, and it would be noticed that certain categories mentioned in the Proviso also fall within the scope of Martial Law Order No. 12, and since Article 10 itself does not prescribe the maximum limit on the duration of detention in those cases, the argument is untenable.

In so far as the test of Martial Law Order No. 12 based on the touchstone of Doctrine of Necessity is concerned, the Supreme Court in Mr. Zulfikar Ali Bhutto v. The State (P L D 1978 S C 40) has clarified that this test must be assumed to be satisfied, if the impugned action of the Chief Martial Law Administrator reasonably falls within one or the other categories enumerated at page 716 of the Report of the Supreme Court in the case of Begum Nusrat Bhutto. The relevant observations of the Supreme Court are as follows :‑

"It seems necessary to observe that there is apparently a misconception in the mind of the learned counsel as to the true implications of the decision of this Court in Begum Nusrat Bhutto's case, in so far as it deals with the powers of the Chief Martial Law Administrator under the doctrine of necessity. On page 716 of the printed report this Court has stated as under;---

'That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑constitutional step in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely-----

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it ;

(b) All acts which tend to advance or promote the good of the people ;

(c) All acts required to be done for the ordinary orderly running of the State ; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normally in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution'."

These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the Doctrine of Necessity which purported to lay down that such actions would be construed o deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra Constitutional action or intervention is validated on the ground of state of civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day‑to‑day affairs of the country, but also to work towards the achieve ment of the objectives on the basis of which its intervention has earned L validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word "necessity" has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning."

In view of the type of the test prescribed above, there is no option but to supply the "term of art" to Martial Law Order No. 12 for the reason that it is undoubtedly legislative measure which falls well within the scope of the law‑making authority under the Constitution.

I may also mention another argument advanced by Abdul Hafeez Pirzada in support of plea that Martial Law Order No. 12 does not satisfy the test on the touchstone of the Doctrine of Necessity. He pleaded that there is no necessity for the continuance of Martial Law Order No. 12 not to speak of Martial Law Order No. 55, for the reason that law and order situation is well within control and peace prevails in the country. In this connection, he emphasised that a Civilian Government has already been installed at the Federal level, and this example is likely to be followed soon at the Provincial level also and it is, therefore, to be presumed that near normalcy prevails in the country. Abdul Hafeez Pirzada also referred to the news Report appearing in daily `DAWN' of 31st October 1978 that the Federal Cabinet after reviewing the law and order situation has found it necessary. The argument precisely is that the provisions of Martial Law Order No. 12 cannot be regarded as proportionate to the situation prevailing in the country, and therefore this Order does not satisfy the test on the touchstone of the Doctrine of Necessity.

The newspaper Report about a Cabinet decision is hardly an evidence of what was actually decided in the Cabinet Meeting, but even if it is assumed that the newspaper Report is correct, then the situation in the country must be assessed in the light of all the relevant laws in force in Pakistan, including the provisions of Martial Law Order No. 12. Neither the Cabinet Decision nor the fact that a Civilian Cabinet has been installed at the Federal level can furnish valid basis for reaching, the conclusion that there is no necessity for the making of Martial Law Order No. 12, for, the installation of a Civilian Government is a political act, not necessarily depending on the law and order situation in the country. .

It is also to be further seen that Martial Law Order No. 12 is the only law which provides for preventive detention in case of acts prejudicial for the purposes for which the Martial Law has been proclaimed. There is no other enactment on the subject, and so long as the purposes of Martial Law remain to be achieved, it cannot be said that there is no necessity of retention of Martial Law Order No. 12: The argument advanced by Abdul Hafeez Pirzada that there was no necessity for Martial L aw Order No. 12, a there are other enactments, such as security of Pakistan Act, West Pakistan Maintenance of Public Order Ordinance and Sind Crimes Control Act, is also, therefore without force.

I may now take up the question whether there was sufficient material and also the necessary application of mind for passing the impugned orders of detention, and also whether the requirements of Martial Law Order No. 12 have been fulfilled. The material on which the impugned orders have been based are the statements made by the petitioners in this Court in support of Constitutional Petition No. D. 807 of 1977 in which they had challenged the orders of detention dated the 16th September, 1977. This material was also the basis of the orders of their detention dated the 27th June 1978. which were challenged by them in Constitutional Petition No. D 625 of 1978, The Division Bench of this Court has already upheld the orders of detention dated the 27th June 1978 passed against the petitioners on the ground that there were sufficient basis on which such orders could validly be passed under the provisions of Martial Law Order No. 12. No argument was addressed by the petitioner in challenge to the findings of this Court in that Constitutional Petition. It was, however, submitted that this material cannot furnish the basis for automatic orders extending the period of deten tion from time to time.

In order to appreciate this aspect of the case, it is necessary to reproduce the material which is in the form of Minute Sheet on the basis of which the impugned orders of detention dated 25th September, 1978 was passed.

In the case of petitioner Mumtaz Ali Bhutto, the Minute Sheet reads as follows:---

"(I) Detenu Mr. Mumtaz Ali Bhutto gave a statement before Sind High Court which was carried by the Press and memorandum of the statement filed in the Court. Meyar Weekly dated i8th and 25 th March, 1978 published a portion of detenu's statement, summary of which statement is as follows;----

(a) Throughout the agitation after elections of March, 1977 the C. M. L. A. was working a~ agent of a foreign imperialist power.

(b) The C. M. L. A. purposely sabotaged the negotiation between P. P. P. and P. N. A. by opposing withdrawal of Army from Baluchistan and release of Mr. Abdul Wali Khan a leader of defunct N. A. P.

(c) The C. M. L. A., acting as agent of a foreign imperialist power, overthrew the Government of P. P. P. when he found that agreement between P. P. P. and P. N. A. was about to be signed and then it would become difficult to impose Martial Law.

(d) The Martial Law Authorities want to establish dictatorship.

(e) The C. M. L. A. is unreliable. H: has no intention to hold elec tions until and unless he is assured that P. P. P. is completely destroyed and he is in a position to pack the Assemblies with his own stooges.

(f) The C. M. L. A. has destroyed the economy of the country by denationalising industries.

(g) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab Countries but was insulted and disgraced every where.

(2) From the above statement it is evident that the detenu has been very vocal against the Martial Law, made personal attacks on the personality of C. M. L. A. and other Martial Law authorities. By levelling such allegations the detenu has tried to incite public to rise in revolt and overthrow present Government.

(3) In order to prevent the detenu from acting in any manner prejudicial to the purpose for which Martial Law has been proclaimed and for the public safety and maintenance of peaceful conditions in the province, his detention under M. L. 0. 12 for further 90 days with effect from 26th September 1978 is recommended.

(4) Submitted for perusal/orders please.

(Sd.)

Maj. ASOML

On perusal of the material placed before me, I am of the opinion that it is necessary to prevent Mr. Mumtaz Ali Bhutto 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. He therefore be detained under M. L. 0.12 for a period of another 90 days.

(Sd.)

Maj.‑Gen..

25th September 1978.

Similarly the Minute Sheet in case of Abdul Hafeez Pirzada reads:

(1) Detenu Mr. Abdul Hafeez Pirzada gave a statement before Sind High Court which was carried by the Press and memorandum of the statement filed in the Court. Meyar Weekly dated 18th and 25 March 1978 published a portion of detenu's statement, the summary of wild statement is as follows :‑‑

(a) The Martial Law authorities want to establish dictatorship.

(b) The C. M. L. A. is unreliable. He has no intention to hold elections untill and unless he is assured that P. P. P. is completely destroyed and he is in a position to pack the Assemblies with his own stooges.

(c) The C. M. L. A. has destroyed the economy of the country by denationalising industries.

(d) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab Countries but was insulted and disgraced every where.

(2) From the above statement it is evident that the detenu has been very vocal against the Martial Law, made personal attacks on the personality of C. M. L. A. and other Martial Law Authorities. By levelling such allegations the detenu has tried to incite public to rise in revolt and overthrow the present Government.

(3) In order to prevent the detenu from acting in any manner prejudicial to the purpose for which Martial Law has been proclaimed and for the public safety and maintenance of peaceful conditions in the province, his detention under M. L. O. 12 for further 90 days with effect from 26 September 1978 is recommended.

(4) Submitted for perusal/orders please.

(Sd.)

Maj. ASOML

On perusal of the material placed before me, I am of the opinion that it is necessary to prevent Mr. Abdul Hafeez Pirzada 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.

He therefore be detained under M. L. O. 12 for a period of another 90 days.

(Sd.)

26th September 1978. Maj.‑Gen."

It would be noticed that the only reasons which prevailed the Detaining Authority for extending the period of detentions in both the cases is that "it is necessary to prevent the detenus 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 failed to apply its mind to the question whether there was any justification for extending the period of detention or that the previous detention had an salutary effect on the petitioners' minds. In this connection, the petitioner pointed out that whereas the purpose of passing the orders of detention was to prevent them from "acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed and for maintenance of peaceful conditions in the area," but the formal orders of detention were further based on the ground of preventing them from acting in a manner, prejudicial to the security of Pakistan, without there being any material at all before the Detaining Authority to justify the formation of an opinion that the petitioner were acting or were about to act against the security of Pakistan. The petitioners further submitted that on the contrary, they have all along been demanding that general elections be held in the country at an early date, and this is one of the main purposes for which Martial Law bas been proclaimed, and, in the absence of any suggestion in the material before the Detaining Authority that they were acting in a manner prejudicial to the purpose for which the Martial Law has been proclaimed, there could possibly be no basis for the making of the orders of detention against them.

These points fully support the plea that the Detaining Authority did not apply its mind at all to the question whether further detention of the petitioners was necessary. I have, therefore, no hesitation in holding that the impugned orders of detention dated 25th September 1978 are the mechanical exercise of power and are vitiated on that ground.

It is now well established that if an order of detention is vitiated, then the order of extension of detention also falls. Reference in this connection may be made to the cases of Arbab Muhammad Hashim Khan v. The Crown (PLD1954FC1), Masum v. The State (PLD1961Pesh.102) and Muhammad Aslam v. The Government of West Pakistan (P L D 1968 Lab. 667). In the first reported case, the order of detention dated 10th December 1954 passed against the detenu, Abdul Wali Khan, was held to be void, and the question arose whether his detention by the subsequent order of detention dated the 16th May 1953 was valid. In this behalf, Cornelius, J. as he was then, observed as follows:

"The order relating to Abdul Wali Khan subsequent to the 10th December 1952, is one dated the 16th May 1953, and is, in terms, an order of existing detention. Such an order plainly cannot operate to validate either the detention which it seeks to extend, or the order by which such detention has been directed. If, therefore, the deten tion of Abdul Wali Khan on the 9th December 1952 was illegal, it could not be extended in any legal sense by the order of 10th December 1952, and the further extension by the order of the 16th May 1953, is, on the same ground equally bad in law."

I may also mention the consideration which must weigh in the mind of Detaining Authority in making an order of detention. In Inayatullah Khan)P Mashriqi v. The Crown (P L D 1952 Lab. 331), Muhammad Munir, C. J. after explaining the difference between the original order of detention and an order of extension of detention, made the following pertinent observations;

"Unless, therefore, a man is a known incorrigible or the danger apprehended is so grave that it will be imprudent to take any chances, the Government would be well advised in avoiding an order of extension with a view to affording the detenu a locus penitentiae. If the man reverts to his former activities or engages in some other prejudicial activity the Government could make a fresh order of detention and in this it would have public opinion with it. Repeated orders of detention without giving to the man concerned an opportunity to desist from his activities may in certain cases be taken to be vindictive, dishonest or punitive and not preventive. And where such view can fairly be taken, it will be the duty of the High Court which is required to act under section 491 of the Criminal Procedure Code, to hold the order invalid and set the man at liberty. The argument in such cases can always be, "If Government is honest and the action taken is merely preventive, why does not the Government release the man after the expiry of his term of detention and arrest him again if he engage‑s himself in the same or similar activities?" The primary consideration in making orders of extension is whether, if the man were released, he would act in the same or some other specific manner because the action taken is to prevent the doing of an act and nothing else. It, therefore, means that when an order of extension is made, the authority making the order must be satisfied that, if released, the detenu would act in a particular manner."

S. A. Rahman, J. in Syed Slbte Hassan v. The Crown (PLD 1954 Lah 142), also emphasised the need to afford to the detenu a locus penitentiae to release him and putting his professions to loyalty to the State to the test of actual experience. Emphasising this aspect a Full Bench of the West Pakistan High Court in Asst. Nasim Fatima v. Government of West Pakistan (PLD 1967 Lah 103), observed that a fresh order of detention is not to be made mechanically or automatically and that the authority must be honestly satisfied, on full realisation of its responsibility in depriving a citizen of his liberty, whether his further detention is necessary purely for the purposes of preventing him from acting in a prejudicial manner", and therefore "there is a need to afford to the detenu Penitentiae, because the detention may have had the salutary effect of curbing his inclinations to indulge in prejudicial activities.

Let me, however, now examine the orders of detention dated the 20 th December 1978 on their own merits. The material placed before us is also in the form of Minute Sheet, which in the case of petitioner Mumtaz Ali Bhutto reads as under

"(1) Mr. Mumtaz Ali Bhutto was detained under M. L. O: 12 vide detention order No. 304/3/M. L. dated 28th June 1978 as extended vide No. 304/32/M. L. of 26th September 1978 presently house arrested with effect from 23rd November 1978.

(2) The detenu is being held under M. L. 0.‑12 for reasons mentioned in the minute sheet dated 25th June 1971, which is placed below. Also placed below is a copy of the memorandum of statement made by the detenu in the Court published in the press. Relevant Press clippings are also placed below.

(3) The detention of Mr. Mumtaz Ali Bhutto for the reasons given in the Minute Sheet dated 25th June 1978 referred to above has been upheld by the High Court. A copy of the judgment of the High Court is available on the file of Mr. Abdul Hafeez Pirzada submitted separately. The same may please be seen.

(4) As stated earlier the detenu has made wild allegations against the Martial Law and the C. M. L. A., some of which are reproduced below;

(a) Throughout the agitation after elections of March 1977 the C. M. L. A. was working as agent of a foreign imperialist power.

(b) The C. M. L. A. purposely sabotaged the negotiations between P. P. P. and P. N. A. by opposing withdrawal of Army from Baluchistan and release of Mr. Abdul Wali Khan a leader of defunct N. A. P.

(c) The C. M. L. A., acting as agent of a foreign imperialist power, over threw the government of P. P. P. when he found that agreement between P. P. P. and P. N. A. was about to be signed and then it would become difficult to impose Martial Law.

(d) The Martial Law Authorities want to establish dictatorship.

(e) The C. M. L. A. is unreliable. He has no intention to hold elections until and unless he is assured that P. P. P. is "completely destroyed and he is in a position to pack the assemblies with his own stooges.

(f )The C. M. L. A. has destroyed the economy of the country by denationalising industries.

(g) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab Countries but was insulted and disgraced every where.

(5) The detention has not deterred the detenu from indulging in unlawful activities. On 10th July 1978 while returning from Court to Central Prison, Karachi, the detenu with the collusion and connivance of his guard escaped temporarily from lawful custody and visited his residence near Clifton Bridge. This is a pointer to the hardened attitude of the detenu.

(6) Unless detained, it is genuinely apprehended that he will go out in the interior of Sind and incite people to rise in revolt against the Martial Law Government. If set free, he will disrupt the law and order situation and frustrate the holding, of general elections. Hence it is recommended that he be detained for a further period of 90 days.

(Sd.)

DMLA. Maj. ASOML.

I have perused the papers placed before me. I am of an opinion that the detenu still persists with his attitude. In my view it is necessary that he may be prevented from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed. His further detention is necessary for the efficient conduct of Martial Law and for maintenance of peaceful conditions in the area. I direct that Mr. Mumtaz Ali Bhutto be detained under M. L. O. 12 at his residence for a further period of 90 days.

(Sd.)

20th December 1978." Maj.‑Gen.

In the case of Abdul Hafeez Pirzada, the Minute Sheet reads as follows :‑

"(1) Mr. Abdul Hafeez Pirzada was detained under M. L. O: 12 vide detention Order No. 304/3/M. L. dated 28 June 1978 as extended vide Order No. 304/31/M. L. of 25th September 1978 and presently house arrested with effect from 23rd November 1978.

(2) The present detention of Mr. Abdul Hafeez Pirzada proceeds from the statements made by him in Court in March 1978 in the course of the hearing of his petition in which he had challenged the order of his detention. The statement so made by him had also appeared in the Press. A copy of the memorandum of statement of the detenu is placed below. Also placed below is the file containing clippings of the statements of the detenu carried by the Press.

(3) The detenu had challenged the order of his detention dated 28th June 1978 in the High Court by a petition which was dismissed on 19th July 1978. A copy of the judgment of the High Court is also submitted for perusal. .

(4) The statement made by the detenu in Court is full of objectionable utterances which tend to :‑

(a) Incite hatred against the Martial Law Authorities in general and the C. M. L. A. in particular.

(b) Suggest that the present Government is not sincere about holding elections.

(c) C. M. L A. has ruined the economy of the country by denation alizing industries.

(d) The C. M. L. A. has ruined the prestige of the country abroad.

(5) Besides during the hearing of his recent petition, the detenu, with reference to his statement referred to above, is said to have claimed that if he had said even one‑tenth of the same thing at a public meeting at Mochi Gate, the whole of Lahore would have burnt. In the course of his submissions, he is also reported to have dilated on sensitive extraneous matters which were outside the scope of his petition and which tended to incite disaffection and hatred against the Government. According to the reports the detenu was highly critical of the Government in the context of the recent statement of the Indian Foreign Minister on Kashmir Issue. He emphasised that the present Government had been unable to deal adequately and effectively with the threats of "the Jan Sanghi Vajpayee". He also accused the C. M. L. A. of having deprived the people of Pakistan of their Fundamental Rights and stated that perhaps the C. M. L. A. wanted to punish the people for their agitation of March 1977 and for bringing him (C. M. L. A.) into power.

(6) The above clearly shower that there has been no change of heart and purging of mind on the part of the detenu. The reasons and apprehensions for which his detention was ordered on 28th June 1978 still hold good.

(7) In the circumstances, it is recommended that the period of detention of the detenu under M. L. O. 12 be further extended by 90 days, so that the detenu may be prevented from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed. The apprehension is that unless the period of detention is extended, the detenu would indulge in unlawful activities, incite disaffection against the Martial Law, create law and order problem, frustrate the efficient functioning of Martial Law and obstruct the holding of general elections.

(Sd.)

DMLA. Maj. ASOML:

20th December 1978.

I have perused the papers placed before me. I am of the opinion that there has been no change of heart on the part of the detenu and it is necessary that the period of his detention be extended. I, therefore, direct that Mr. Abdul Hafeez Pirzada be detained under M. L. O: 12 at his residence for a further period of 90 days from today so that he may be prevented from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed. His detention is necessary also in the interest of the efficient conduct of Martial Law and for maintenance of peaceful conditions in the area.

(Sd.)

20 December 1978. Maj. Gen. DMLA."

The only fresh consideration for extending the period of detention in the case of Mumtaz Ali Bhutto is his alleged escape from the lawful, custody of the Guards on 10th July 1978, while he was returning from the High Court premises to the Central Prison, Karachi. No other material beyond this bare allegation has been produced before us, an R it is said that this incident is the subject matter of a criminal charge, and the case, in this connection, has been registered. If this is so, then the allegation is sub judice before a Court of Law on a charge of substantiveoffence and the necessary legal consequences are to flow in due course of time.

It was, however, argued that the alleged attempted escape from the lawful custody has no nexus with any of the purposes for which detention can be ordered under the provisions of Martial Law Order No. 12.

The fresh material on which the orders of extension of detention has been passed against him is as under :‑

"(1) That during the course of hearing of the present petition, he made a statement before this Court claiming that if he had said even one‑tenth of what he had stated before the Division Bench of this Court, hearing Constitutional Petition No. D.‑625 of 1978 at the Mochi Gate, the whole of Lahore would have burnt.

(2) That while arguing the present petition he was highly critical of the Government in the context of the recent statement of the Indian Foreign Minister on Kashmir Issue, and he emphasised that the present Government had been unable to deal adequately and effectively with the threats of "the Jan Sanghi Vajpayee".

(3) That he accused the Chief Martial Law Administrator of having deprived the people of Pakistan of their Fundamental Rights and stated that perhaps the Chief Martial Law Administrator wanted to punish the people for their agitation of March 1977, and for bringing him into power."

Since all these allegations pertain to the statement of Abdul Hafeez Pirzada before us in Court, I feel it as my duty to state what was actually said by him, so as to set the record right. During the course of his address, Abdul Hafeez Pirzada was arguing that the basis of the orders of detention passed against him and Mumtaz Ali Bhutto were the statements made by them in support of Constitutional Petition No. D.‑625 of 1978, and since these statements were made by them in the prosecution of their Constitutional petition before a Court of law, and in support of the grounds on which they had challenged the orders of detention, the statements were not made before a public forum and were not intended or could be placed before the public at large and these could not possibly incite the public mind against the present regime. He further argued that the occasion and the place are important factors for considering whether a statement would fall within the mischief of the law. In other words, his argument was that if he were to make a statement in a privileged place and also in the context of arguments advanced before a Court of law, that would not indicate that he wanted to incite the public and act in a manner prejudicial to law and order situation. It was in that context that be argued that his statement in Court cannot be considered as if he had made a statement in Mochi Gate which might have created a law and order situation.

The statement attributed to him which has formed the basis of the order of detention passed against him is, therefore, factually incorrect.

So far as the second consideration which has weighed in the mind of the Detaining Authority is a criticism of the action, or inaction of the Government in respect of the threats of the Indian Foreign Minister Abdul Hafeez Pirzada produced before us several newspaper Reports in which similar statements have been made by almost all the prominent persons, namely, Maulana Mufti Mahmood, Nawabzda Nasrullah Khan, Air Marshal (Retd.) Asghar Khan, Maulana Noorani, Choudhary Muhammad Hussain Chatha, Sardar Abdul Qayyum, Choudhry Rehmat Elahi, Maulana Ehtishamul Haq Thanvi, etc. His argument was that while he was making a statement in a privileged place before a Court of law, the other prominent persons had made similar statements in public which have attracted head lines in the Press, and yet he has been singled out for action under the provisions of Martial Law Order No. 12.

In order to set the record correct, I may mention that Abdul Hafeez Pirzada had made the statement somewhat on these lines, while arguing that had the general election in the country taken place and had the elected Government been in power, perhaps the Indian Foreign Minister would not have dared to make such a bold statement against Pakistan.

So far as the allegation that Abdul Hafeez Pirzada had accused the Chief Martial Law Administrator for having deprived the people of Pakistan of their Fundamental Rights, etc. is concerned, it must be clarified that the allegation, as worded, is not only out of context, but is also incorrect. Abdul Hafeez Pirzada was arguing that the Supreme Court in Begum Nu:rat Bhutto's case had validated the provisions of clause 3 of paragraph 2 of the Laws (Continuance in Force) Order, 1977 on the parity of the provisions of Article 233 of the Constitution, and his argument indeed was that it could not possibly be attributed to the Chief Martial Law Administrator that he wished to deprive the people of Pakistan of their Fundamental Rights. The statement attributed to him is totally out of context and has been wrongly attributed to him.

I am, therefore, clearly of the view that none of the statements attributed to Abdul Hafeez Pirzada can be a valid basis for the conclusion that there was no change of heart on the part of the detenu and the extension of his detention had become necessary. Similarly, the only T circumstance taken into consideration for making the order of extension in the case of petitioner Mumtaz Ali Bhutto is totally irrelevant and ha no nexus with any of the purposes for which detention can be ordered under the provisions of Martial Law Order No. 12. Since totally irrelevant and untrue facts have been taken into consideration for making of the impugned orders of detention, I feel no hesitation in holding that the impugned orders of detention dated the 25th September 1978 and the 20th December 1978 cannot be sustained under the very provisions of Martial Law Order No. 12, and these are, therefore, invalid in law.

The most important aspect of the impugned orders of detention is that these have been passed, so as to prevent the petitioners from making public statements of political nature, criticising the action of the Martial Law Authorities, and for maintenance of public peace in the area. In this behalf, the petitioners pointed out that since proceedings initiated under Martial Law Order No. 31 are yet pending against both of them, they are prohibited by virtue of Article 6‑A of that Order from participating in any manner whatsoever directly or indirectly in any political activity and the violation of this prohibition entails rigorous imprisonment upto five years, forfeiture of property and/or whipping up to twenty stripes. Abdul Hafeez Pirzada submitted that neither he nor Mumtaz Ali Bhutto can possibly take the risk of acting in a manner so as to attract the U mischief of Article 6‑A of Martial Law Order No. 31, so as to incur the serious punishments prescribed therein.

There is great force in this argument, for, what can be achieved by the orders of detention passed against them under the provisions of Martial Law Order No. 12 can be more effectively attained in respect of the petitioners by taking action against them under the provisions of Martial Law Order No. 31 in case of any violation of the provisions of that Order. This aspect has been totally lost sight of while passing the impugned orders against the petitioners, and I am clearly of the view that had this aspect been borne in mind, the Detaining Authority may not have thought it necessary to pass the impugned orders against the petitioners.

There is yet another important aspect which supports petitioner's contention that there has been no application of mind by the Detaining Authority itself. Reference in this behalf was made to the Letter No. 304/298/ M. L. dated 7th December 1978 addressed by the Deputy Martial Law Administrator to the Headquarters Martial Law Administrator, Z'3ne `C', Karachi, and the reply received from the Headquarters Martial Law Administrator, Zone `C' under Letter No. 128/15/120/MLA‑10 dated 16th December 1978. It wou13 be relevant to reproduce both these letters. The first letter reads as follows;----

"CONFIDENTIAL

HQ DMLA Sector 1

MPA's Hostel, Karachi

Tel Mil: 386

304/298/ML

07 December 1978.

To;

HQ MLA Zone `C'.

Sub: Detention under MLO 12.

Your Letter No. 128/15/202M/L/A 2. of 21st June 1978 refers.

"(1) Detention in respect of following persons are expiring on the dates as mentioned against each

(a) Abdul Hafeez Pirzada son of Abdul Sattar Pirzada‑‑23rd December 1978.

(b) Mumtaz Ali Bhutto son of Nawab Nabi Bux Bhutto‑‑23rd December 1978.

(2) Keeping in view the present political situation they are not recommend ed for release and it is suggested that their detention may be extended for another ninety days.

(3) Please cfm.

(Sd.)

Maj. for DMLA.

(M. Azhar Jamil)."

The letter in reply reads as under :‑

CONFIDENTIAL

IMMEDIATE

Headquarters Martial Law ,

Administrator, Zone `C',,

Assembly Building, Karachi.

Telephone: 212100

16th December 1978. 128/15/120/ML/A‑10.

To

Headquarters,

Deputy Martial Law Administrator, Sector 1.

"Subject: Detention Under M. L. O. 12.

Your Letter No. 304/298/ML dated 07 December 1978 and telcon between A. A: G. this HQ and D. A. A. G. of your HQ dated 14th December 1978 refer.

You may consider/examine the issue of extension of detention period pertaining to the detenu as mentioned in your above‑quoted letter in the light of adequate/justifiable grounds against them.

(Sd.)

Lt: Col. for Martial Law Administrator. (M. Jamil Khan)."

It is clear that the Detaining Authority has not applied its own exclusive mind but either acted on the orders, or advice of the higher authorities, and moreover the consideration which was kept in mind was "the present political situation", rather than the legal considerations that are to be borne in mind in the making of an order of detention under the law.

For these reasons, I am clearly of the view that the impugned orders passed against the petitioners are contrary to law and are thus invalid and must be quashed.

I order accordingly, and allow this petition with no order as to costs. As a result both the detenus shall be released forthwith, unless they are required in some other connection.

ABDUL HAYEE KURESHI, J.‑ I have bad the advantages of reading the judgment proposed to be delivered by my Lord the Chief Justice and my learned brother Fakhruddin CJ. Ebrahim; J. While agreeing with the operative conclusion recorded by them I have approached the case from a different angle and the reasons presently follow.

2. It is not necessary for me to state the facts as the same are already stated in the judgment of my Lord the Chief Justice.

3. The first point that has been urged by the petitioner Abdul Hafeez Pirzada is that Fundamental Rights incorporated in Chapter I, Part II of the Constitution are in full force although enforcement of these rights may have been suspended. Additionally it has been contended that even the suspension of these rights could only be achieved by recourse to the provisions of Article 233 of the Constitution. It is additionally urged that provisions contained in Article 10 of the Constitution providing safeguards as to arrest and detention are not susceptible to suspension as certain provisions in regard to protection against, arrest and relief against the same should be deemed to be incorporated in every law relating to preventive detention. The other contention of the petitioner Abdul Hafeez Pirzada is that Martial Law Order No. 12 and the other Orders amending the said Martial Law Order were invalid as the same were in derogation of the provisions of the Constitution and the departure does not satisfy the touchstone of necessity. In that context it has also been urged that Martial Law Order 12 and the amending Martial Law Orders were encroachment in the legislative field that stood occupied. The petitioner Abdul Hafiz Pirzada has also relied on the provisions of Article 4 of the Constitution of Pakistan to urge that right to personal liberty and principles of natural justice formed a part of the law within the meaning of the said Article and it is not suspended. It is also urged that Martial Law Order No. 12 offending the said principles of natural justice was invalid, despite such principles of natural justice not being "positive law" if that word is meant to convey that positive law is such law as is the manifestation of the will of the Legislature or a competent law giver.

4. In regard to the above contentions Mr. Sharifuddin Pirzada, the learned Attorney‑General for Pakistan, the Advocate‑General, Sind and amicus curiae Mr. Khalid M. Ishaque, Mr. Rehanul Hassan Farooqi and Mr. Ali Ahmed Fazeel, who have adopted the arguments of the Attorney- General, has stated that the Fundamental Rights as well as enforcement of such rights stand suspended. Article 10 according to the learned Attorney- General is a Fundamental Right incorporated in Chapter I Part II of the Constitution and is for such reason suspended. The learned Attorney- General has heavily relied on the observations of my Lord the Chief Justice of Pakistan in the case of Begum Nusrat Bhutto v. The Chief of Army Staff (PL D 1977 S C 657) to base an argument that the Supreme Court has recorded a conclusion that the Chief Martial Law Administrator has legislative authority and is competent even to amend the Constitution and for such reason Martial Law Order No. 12 in so far as it is in derogation of the provisions of the Constitution is a valid piece of legislation and should be presumed to satisfy the test of necessity. The learned Attorney‑General has also relied on the case of F. B. Ali v. The State (P L D 1975 S C 506) and Federation of Pakistan v. United Sugar Mills Limited (PLD 1977‑S C 397) to contend that "law" has to be understood as a term of limited connotation so as to exclude all other cannons of law except law which is a formal pronouncement of the will of a competent law‑giver.

5. In addition to the above Constitutional points petitioner Abdul Hafeez Pirzada has also attacked the order of detention by virtue of which he and co‑petitioner Mumtaz Ali Bhutto are held in custody on the grounds that the detention order does not indicate conscious application of mind. He has attacked the vires of Martial Law Order 12 on the ground that it seeks to deprive the petitioners of a valuable right to know the grounds of detention. The argument is extended to contend that ignorance of the grounds of the petitioner's detention has rendered the provisions of paragraphs 4 and 4‑A of Martial Law Order No. 12 illusory and meaningless.

6. Petitioner Abdul Hafeez Pirzada who is by profession an Advocate and has argued his own case, has put forth his case in a very clear and vivid form. He has submitted initially that the Supreme Court having held the Constitution to be the supreme law of the land (subject to certain provisions thereof being held in abeyance on account of State necessity) all actions of the Chief Martial Law Administrator and subordinate authorities must flow from such powers as the Legislature and the executive have under the Constitution. He has contended that the Constitution does not provide for any suspension of the Fundamental Rights as such, although the right to enforce such rights may be suspended and that too while a proclamation of emergency was in force by an order of the President under Article 233 of the Constitution. In that context he has also referred to clause (i) of Article 233 of the Constitution which provides for a power of the State to make a law or take any action in violation of Articles 15, 16, 17, 18, 19 and 24 during the emergency. Such articles as are mentioned, however, are not relevant to the issues involved in this case. The petitioner has further urged before us that even the tenor of the judgment of the Supreme Court in the case of Begum Nusrat Bhutto shows that the Supreme Court validated only such part of Article 2(3) of the Laws (Continuance in Force) Order as related to the enforcement of Fundamental Rights.

7. The first question that I propose to deal with is in regard to the effect and status of the Laws (Continuance in Force) Order, with particularity to the suspension of Fundamental Rights as distinct from enforcement of such rights. By the Proclamation of Martial Law on 5th July, 1977, the Constitution of 1973 was held in abeyance. Unlike the previous Martial Laws of 1958 and 1969 the Constitution was not abrogated. The word "abeyance" is akin to suspension. The Supreme Court in clause (v) at page 722 in the report covering the case of Begum Nusrat Bhutto clearly stated that the 1973 Constitution remains the supreme law of the land, subject to the condition that certain parts thereof had been held in abeyance on account of State necessity. The Supreme Court validated the Proclama tion of Martial Law although holding that the old legal order had not been completely suppressed or destroyed but only a deviation for a temporary period and for specified and limited objective had been resorted to by the Chief Martial Law Administrator. By reference to clause (iii) (a) at page 716 in the same report the legal position as stated by Supreme Court is that all acts or legislative measures which were in accordance with, or could have been made under the 1973 Con3titution, including the power to amend the Constitution, could be done or taken by the Chief Martial Law Administrator subject to the condition of such legislative measures or amendments of the Constitution falling within the scope of the law of necessity.

8. Petitioner Abdul Hafeez Pirzada has specifically invited our attention to certain passages in the judgment of Begum Nusrat Bhutto to contend that the Chief Martial Law Administrator did not have or enjoy the full powers to govern the country in any manner he thought best and in such context be referred initially ,to the contentions of the learned Attorney- General in the Supreme Court. At page 712 in the report it appears that the learned Attorney‑General contended that once the take‑over was validated on the principle of necessity, then the right to govern the country in any manner the Chief Martial Law Administrator thought was best, would follow ; subject only to the binding force of the Laws (Continuance in Force) Order, 1977. To such extent the conclusion of the Supreme Court was to the following effect :‑-----

"It will be seen that the Proclamation embodies and describes in legal form, the extra‑constitutional action which the Chief of the Army Stall' has taken on the ground of necessity. The proclamation must, therefore, be held valid for the same reason ; in fact, the entire controversy dealt with in the proceeding pages has concerned this Proclamation and nothing else.

A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the Proclamation As however this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions and any action taken thereunder, in the light of the principles regulating the application of the law and doctrine of necessity, as already set out earlier."

The learned Attorney‑General had also contended that the Proclamation as well as Laws (Continuance in Force) Order, 1977, were supra‑constitutional instruments, overriding the Constitution and binding on every one by virtue of their own force. Such contention was repelled by the Supreme Court in so far as the nature of the two instruments is concerned which according to the Supreme Court were extra‑constitutional instruments and not supra‑constitutional instruments and for coming to such conclusion the Supreme Court took the view that since the validity of all actions of the Chief Martial Law Administrator had to be tested on the touchstone of necessity by the‑ Courts, no supra‑constitutional status could be conferred on these instruments. However, the above‑quoted passage from the judgment of the Supreme Court would clearly indicate that only the Proclamation of Martial Law was validated by the Supreme Court. In regard to the Laws (Continuance in Force) Order Mr. Yabya Bakhtiar, the counsel for Begum Nusrat Bhutto had contended before the Supreme Court that Fundamental Rights could only be suspended during the continuance of Emergency under Article 232 of the Constitution, and to the limited extent provided by clause (2) of Article 232 of the Constitution. On the other band Messrs A. K. Brohi and Syed Sharifuddin Pirzada had contended that in spite of revocation of Emergency (Emergency had been lifted before the judgment of the Supreme Court) the Fundamental Rights stood suspended under Article 2 (3) of the Laws (Continuance in Force) Order, 1977, which deviation was independent of the Emergency contemplated by Article 232 of the Constitution. It must be recalled that the petition filed by Begum Nusrat Bhutto before the Supreme Court was one under clause (3) of Article 184 of the Constitution for enforcement of Fundamental Rights but ‑the Supreme Court dismissed that petition on the ground that the petition was not maintainable "for the reason that the Fundamental Rights stand validly suspended since the of July, 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977". It would thus seem that the Supreme Court dismissed the petition under Article 184 (3) of the Constitution on the categorical interpretation of Article 2 (3) of the Laws (Continuance in Force) Order, 1977.

Petitioner Abdul Hafeez Pirzada has, however, heavily relied on the paragraph appearing at page 720 of the report which reads as follows;---

"The question, therefore, is whether the provision embodied in this behalf in clause (3) of Article 2 of the Laws (Continuance in Force) Order is valid in the light of the principles governing the application of the law of necessity. One of the conditions stated in this behalf is that the Chief Martial Law Administrator is entitled to perform all acts and take such legislative measures which are in accordance with, or could have been made under the 1973 Constitution. Now, the Constitution does permit the suspension of the right to enforce Fundamental Rights in case of an Emergency of the nature con templated in Article 232 thereof. Clause (1) of this Article says that 'If the President is satisfied that a grave Emergency exits in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbances beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency'. If, therefore, it is found that the situation of the kind contemplated by this provision of the Constitution exists in Pakistan, then the Chief Martial Law Administrator would be entitled to make an order of the kind which could be made under clause (2) of Article 233 of the Constitution suspending the right to enforce Funda mental Rights."

The argument advanced by the petitioner is that the Supreme Court had validated the suspension of the right to enforce a Fundamental Right because the reason for coming to such conclusion as recorded by the Supreme Court was that even under clause (2) of the Article 232 of the Constitution suspension of the right to enforce Fundamental Rights was contemplated. The petitioner has further contended that the Supreme Court had more than once referred to suspension of the right to enforce a Fundamental Right as distinct from suspension of the Fundamental Rights, and therefore the Supreme Court had validated Article 2 (3) of the Laws (Continuance in Force) Order, 1977 only in regard to the suspension of remedy and not the right itself. I am afraid such interpretation of the judgment is incorrect. Firstly, clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 clearly states that the Fundamental Rights shall stand suspended. The clause reads as follows :‑

"3. The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in no far as they are for the enforcement of any of these rights shall stand suspended."

A plain reading of the provision leaves one in no doubt that the Fundamental Rights as such had been suspended by clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On a comparison of parallel provisions in Laws (Continuance in Force) Order, 1958 with the present Laws (Continuance in Force) Order it is patent that the present provisions are entirely different in the context of suspension or destruction of Fundamental Rights as the Constitution was not abrogated. Under Article 3 (3) of the Provisional Constitutional Order, 1969 certain rights had been specifically abrogated and proceedings for the enforcement of such rights had as a consequence been directed to abate. In the Laws (Continuance in Force) Order, 1958 the Constitution of 1956 had been specifically abrogated, although the superior Courts had the power to issue the writs of habeas corpus mandamus, quo warranto and certiorari. The provisions of Article 2 (3) of the present Order are new in form and content. What is more that in the case of Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and others (P L D 1978 S C 121) the question in regard to existence or enforcement of Fundamental Rights arose as a person was making a grievance on the ground of double jeopardy and Naseem Hassan Shah, J. concluded the judgment by stating that it cannot be said that the petitioner's present trial is in any was derogatory to the principles of natural justice or of Article 13 of the Constitution assuming its provisions were operative, which, however, is not the case. "Same questions arose in the case of Nazeer Ahmad v. Martial Law Administrator (P L D 1978 Kar. 777) and the question involved was whether a person could be punished for having done an act which was not an offence on the day it was committed. Fundamental Right as incorporated in Article 12 of the Constitution was directly invoked. A Division Bench of this Court came to the conclusion that Fundamental Rights having been validly suspended, the question of enforcement of the said Rights did not arise. In the case of Khudiadad v. The Martial Law Administrator (P L D 1978 Quetta 177), a judgment delivered by me, I have taken the view that Fundamental Rights stand suspended. I must however confess that in the case of Khudiadad, the question of distinguishing the existence of Fundamental Rights as distinct from enforce ment did not arise nor was canvassed, The case was on entirely different factual aspect.

9. Reliance has been placed by petitioner Abdul Hafeez Pirzada on clause (5) of Article 8 of the Constitution which states that Fundamental Rights "shall not be suspended except as expressly provided by the Constitu tion". Mr. Abdul Hafeez Pirzada has submitted that since the Constitution did not provide for suspension of Fundamental Rights other than such rights as are contained in Articles 15, 16, 17, 18, 19 and 24, Fundamental Rights contained in remaining Articles of the Constitution could not be suspended as it was beyond the scope of the Constitution. This argument on the surface could be available only if an amendment of the Constitution could not be made by the Chief Martial Law Administrator but since the Proclamation as well as Laws (Continuance in Force) Order, 1977, have been conceded the status of extra‑constitutional documents and the Supreme Court has recognized such power of amendment of the Constitution in favour of the Chief Martial Law Administrator it must be held that deviation from the Constitution and particularly from the scope of Article 233 of the Constitution is permissible, not on any superior plane but only on satisfaction of the test of necessity. In the instant case the proclamation which has been validated as an extra‑constitutional measure provided for radical departures from the Constitution and even such departures had been validated, though on the ground of necessity.

10. I have therefore, no difficulty in coming to the conclusion that Article 2 (3) of the Laws (Continuance in Force) Order, 1977, does contemplate not the mere suspension of the right to enforcement of Fundamental Rights but even suspension of Fundamental Rights in Chapter 1, Part II of the Constitution. I must state that while I speak of Fundamental Rights, I mean the rights which comprise the extensive range of legally recognized interests, the categories of which may as of illustration be stated as the enjoyment of personal liberty, preservation of life, retention of ownership and possession, professing of religion, per-suit of education, and several other expanding categories.

11. The question that now remains for consideration in this context is whether the right to personal liberty has been suspended by Article 2 (3) of the Laws (Continuance in Force) Order. For such purpose reference may be made to paragraph (8) supra where the said provision is reproduced. The rights that stand suspended are those as are incorporated in Chapter 1 of Part II of the Constitution. The basic right of personal liberty is created by Article 4 of the Constitution which reads as follows;----

"Article 4.‑(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular‑---

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law ; and

(c) no person shall be compelled to do that which the law does not require him to do."

It is in fact, as I have always thought, that Article 10 has come to be regarded as a provision creating a Fundamental Right, only by a misconception and in total disregard to the scheme of the Constitution. In essence it is Article 4 and not Article 10 that provides for a protection that no action detrimental to life, liberty, body, reputation or property can be taken save in accordance with law. Article 10 on the other hand does not provide such a guarantee. To strengthen the argument I will refer to the other Articles in Chapter 1, Part II of the Constitution which demonstrate that citizens are conceded Fundamental Right of protection against double punishment (Article 13), human dignity (Article 14), freedom of movement in Pakistan (Article 15), freedom of assembly (Article 16), freedom of forming associations (Article 17), freedom of trade and business (Article 18), freedom of speech (Article 19), freedom of religion (Article 20), freedom of acquisition of education (Article 22), freedom of acquisition and holding of property (Article 23), equality before law (Article 2i). It is no doubt true that Article 9 which falls in Chapter 1 Part II of the Constitution states that no person shall be deprived of life or liberty save in accordance with law but to that extent it may only be understood as repeating the import of Article 4. Be that as it may, Article 4 which falls outside Chapter 1, Part II of the Constitution holds its place in the Constitution, still the supreme law of the land, in its own right, untramelled by Article 2 (3) of the Laws (Continuance in Force) Order and the full effect of this provision has to be recognized. In fact the provisions of Article 4 cannot at all suspended for if those were suspended, one would only be landed in a lawless society and contemplate chaos rather order, be it under a Constitution or under the umbrella of Martial Law by reason of necessity.

12. At this stage it would be proper to construe the true significance of Article 10 of the Constitution. This article unlike several other Articles in Chapter 1, Part II does not carry a marginal title of any "freedom" as would appear from Articles 15, 16, 17, 18, 19, 20, etc. It is Article 4 which bears the marginal title "Right of individuals to be dealt with in accordance with law." The right is in fact created by Article 4 or as one might say, Article 9, which is also enveloped in Article 4. The scheme and content of Article 10 also create no right in favour of an individual. Clause (4) provides for limitations on the powers of Legislature and review boards, clause (5) provides for communication of grounds of detention, clause (6) provides for furnishing of relevant material to the Review Board, clause (7) provides for maximum term of detention and clause (8) confers powers on the review board for determination of place of detention and subsistence allowance for the family. It would appear that as far as the right to individual liberty goes, Article 10 is no warrant for that right. It creates obligations for the Legislature, the Chief Justice of Pakistan and the Chief Justice of High Courts. The creation of review boards, also creates no right as such to enjoyment of liberty. A this stage it would be useful to refer to the case of Abdul Aziz v. Province of West Pakistan (P L D 1958 S C (Pak.) 499) in which Article 7 (4) of the Constitution of Pakistan, 1956 came up for consideration. This provision concerned detention for a period beyond three months and created a clog on detention beyond such period without reference to the Advisory Board, which is parallel to the provision of clause (4) of Article 10 of the present Constitution. Their Lordships of the Supreme Court in the judgment delivered by Cornelius, J. (as he then was) stated as follows :‑

"The argument that in order that the Fundamental Rights guaranteed by Article 7 should be truly effective, it is necessary that they should be incorporated in the relevant statutes as was done by the expired Ordinance of 1956, has an appreciable measure of persuasive force, but that force is hardly adequate to invalidate a statute. In particular, clause (4) has for its purpose the imposition of a duty upon the determining authority. It does not directly confer any rights upon the subject."

Salahuddin, J. in the case of Manzoor Elahi v. Federation of Pakistan (P L D 1973 S C 66) con ferred recognition to Article 4 as the fountain creating rights and at page 125 the report stated in the conclusions as follows :‑---

"Pakistan is governed by the rule of law, as embodied in Articles 4 and 5 of the Constitution. The Constitution creates no right and imposes no duty in vain."

In the case of Manzoor Elahi, Anwarul Haq, J. (as he then was) con sidered the import of Article 4 and came to the conclusion that since it did not fall or find a place in Chapter 1 Part II of the Constitution it was not a Fundamental Right. No doubt his Lordship was disinclined to grant relief under clause (3) of Article 184 on that ground, but in the present premise, it would be clear that the right to be dealt with according to law is independent of Article 10 in relation to personal liberty. I would state that this right is as the Constitution says an inviolable right, not susceptible no capable of being suspended and in all circumstances this right is enforceable. Anwarul Haq, J. (as he then was) went to the extent of interpreting the import of Article 4, almost stating that the same created an inviolable right, untranielled by any clogs. He stated the point as follows :‑

"While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property, his right to freedom of action, and immunity from illegal restraint of any kind, yet it does not form part of Part II of the Constitution containing Fundamental Rights, and, for that reason, any violation of this article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution, That jurisdiction has reference only to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution."

In the paragraph following the paragraph from which the above‑quoted passage is taken his Lordship stated that Article 9 is narrower in scope as compared to Article 4, although in content Article 9 carries the same meaning and substance.

While dealing with the true import of Article 4 which would include Article 9 in juxtaposition with Article 10, to find which provision is the dominant provision, I may as well refer to the case of Habiba Mani v. Federation of Pakistan (P L D 1974 Lab. 153), a case from Lahore High Court. In this case the position factually was that emergency had been proclaimed under Article 232 of the Constitution and right to enforce Fundamental Rights stood suspended by an Order in persuance of the succeeding Article 233. The question arose if the suspension of the right of enforcement defeated the provisions of Article 10 of the Constitution. Nasim Hassan Shah, J. (then a Judge in Lahore High Court) expressed that the provisions of Article 10 4o not attract a case for enforcement of Fundamental Right and further stated as follows :‑

"The detenu has been served with the grounds, as required by the provisions of Article 10, his cage was duly referred to the Review Board and the period of detention extended only after securing an affirmative opinion of the Board to the effect that the detention was justified. We are of the view, therefore, that if it could be shown that the provisions of Article 10 have not been complied with, this Court could grant relief to the applicant, on the ground that the said provisions of the law are in the nature of statute law and form part of the said statute. Thus, when it is prayed that a detention should be declared to be illegal for non‑compliance with the provisions of Article 10 the petitioner is not seeking the enforcement of a Fundamental Right . . . . . ."

13. I am therefore left in no doubt that Article 10 of the Constitution falling in Chapter I, Part II of the Constitution does not create or recognise a Fundamental Right. Such right as protects a citizen from deprivation of liberty, subject of course to law, is conferred by Article 4 or Article 9, the A latter clearly enveloped by the former and since what stands suspended is the A "Fundamental Rights," the provisions of Articles 4 and 10 are in full fore and effect today, as they were on 5‑7‑1977. Any other view would lead to disastrous results and create a position not to be lightly countenanced.

14. The next question in the context is what is law within the meaning of Article 4 and as a corollary whether the provisions of Article 10 are law within the ambit of Article 4. Perhaps it would not have been necessary to deal with this question had not the learned Attorney‑General raised a contention that law means what is called a "positive law", i.e. the expression of the will of law‑maker. In that case he relied on two Supreme Court judgments, first the case of F. B. Ali v. The State (PLD1975SC506) and the second Federation of Pakistan v. United Sugar Mills (PLD1977SC397). I will deal with the import of these judgments later but would in the first instance consider some earlier cases so that the departure, if any, may be reflected correctly against a back ground. The first case is of Government of West Pakistan v. Begum Agha Abdul Karim Sarish Kashmirl (PLD1969 SC14). This was a detention case like the present one and the question that directly arose was whether the detention was in accordance with law and not in an unlawful manner. Hamoodur Rehman, J. in that case considered the import of the word "Law" with reference to Article 2 of the Constitution of Pakistan (1962), a provision parallel to Article 4 of the Constitution of 1973. The true import of the word in the view of Supreme Court was stated by Hamoodur Rehman, J. (as he then was) as follows:‑

"To my mind, therefore in determining as to how and in what circum stances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connecting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American due process" clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."

The word "law" and its meaning also came up for consideration before the Supreme Court in the case of Manzoor Elahi v. Federation of Pakistan. The above‑quoted passage from the judgment in the case of Agha Abdul Karim Shorish Kashmirl was reproduced by Anwarul Haq, J. (as he then was) with approval and relied upon. His Lordship recorded the view that the term "law" has to be given extended meaning, not limited only to what is termed as "positive law" or enacted law. Having referred to these cases I proceed to refer to the case of F B. All v. The State. In this case section 2 (1) (d) of the Army Act, 1952 was challenged as being not entitled to be called "Law" on the ground that it unreasonably deprived a citizen of even the norms of a judicial trial. The authority of the Legislature was also challenged. However the statement of Hamoodur Rehman, C. J. was as follows :‑

"It is first sought to be contended that the Ordinances were not law at all, because, they purported, to unreasonably deprive a citizen of even the norms of a judicial trial. But this generalization cannot be accepted. Law has not been defined in the Constitution of 1962 and, therefore, in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of a competent law‑giver. There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law as pointed by me in the case of Asma Jilani."

The above passage confers validity on the law framed by the Legislature within the ambit of its powers but it does not conversely state that what is not stated by the Legislature is not law. It mentions that a law would not be struck down merely on moral or ethical considerations. In the same case Anwarul Haq, J. (as he then was) appended a paragraph in dissent and record ed the conclusion that "law" has to be given an extended meaning. He stated as follows;----

"In the light of the views expressed by three of us as recently as the 17th of December 1974 in the case of Ch. Manzoor Elahi, I find it difficult to accept the contention that the term 'Law' as used in Fundamental Right No. 1 of the 1962 Constitution, should be interpreted as meaning only positive law. On the contrary, the term, 'Law', as used in this Fundamental Right, must be construed as also including the judicial principles laid down from time to time by the superior Courts, and the accepted forms of legal process and juridical norms obtaining in Pakistan. These accepted judicial principles, forms of legal process and juridical norms are so well established and specific that they cannot be brushed aside as being mere abstract or vague considerations of ethics and morality, or philosophical concepts of law. They are not mere theories advanced for the purpose of invalidating competently enacted laws ; on the contrary, they are established rules and concepts which give substance and meaning to all laws by promoting the ends of a just legal order."

Coming against to the case of Federation of Pakistan v. United Sugar Mills (P L D 1977 S C 397) it must be said straightaway that the Supreme Court was dealing with a fiscal statute, the principles of interpretation whereof are widely different from those governing interpretation of detention laws. In that case some business practices came up for consideration and it was stated in the judgment that even the existence of such business practices needed to be proved as facts. Muhammad Gul, J. in such context stated as follows :‑‑

"I have further considered this aspect of the matter and remain confirmed in my view that the term "Law" as used in the above constitutional provisions has also been used in Article 8 of the Constitution, in contradistinction with any "custom or usage having the force of law" and must therefore be given the same limited connotation in Article 4 as well. For instance the expressions like "proper law of the contract" "law merchant", "Maritime law", "Law of Domicile" and "the practice of the Court", which are essentially in the nature of usages or practices observed in the relevant fields and are well recognized by Courts of Law. In the event of any question as to the existence of any one of these, it has to be proved by evidence as a fact. It will, in my humble opinion, be erroneous to equate these practices or usages or customs with a statute law or to attach to them any higher validity."

The last sentence is significant as showing that such practices cannot be equated with statute law. .

15. On a consideration I cannot persuade myself to the conclusion that the Supreme Court has limited the word `Law' to mean what may be called enacted law or positive law. If such view is to be taken a vast field in our law would be obliterated. It is easy to refer to law relating to inheritance, gift, will, legitimacy, etc. in Muslim Law which is not enacted law. A void would be created. Similarly the principles of natural justice which form the bulwark in our legal system would have to be abandoned. 8 Illustrations could be added to demonstrate that a good portion of our B legal system would collapse if that view were to be adopted. For the purpose of this judgment the disappearance of rules of natural justice would be relevant. To sum up Article 4 of the Constitution has to be read in a manner that a person is entitled to such treatment as is consistent not only with enacted law but also with principles of natural justice. The next question in this context is whether Article 10 of the Constitution of Pakistan is law within the ambit of Article 4 of the Constitution as exists today. As stated above Article 10 does not create any Fundamental Rights but only lays down certain limitation on the power of legislation and obligations on the State. A strong view pronounced by our High Courts is that the provisions of Article 10 are in the nature of law which properly falls within the category of enacted law or statute law. Such enacted law or statute law has found a place in the Constitution perhaps only for the reason that the same may not be treated as a normal statute easily liable to amendment, suspension or derogatory legislation. As will be seen the Article contained provisions to the effect of production of an accused before a Magistrate within 24 hours of his arrest. Such provisions are already contained in the Code of Criminal Procedure which was enacted as early as in 1898. Despite the existing provisions the makers of the Constitution not only in this country but in various countries of the world have incorporated such provisions even in the Constitution. The purpose evidently is that these provisions should not be liable to easy amendment but form a permanent part of all legal instruments authorising arrest. This Article further is complete legislation and embodiment of the rules of natural justice in both the canons namely the rights of hearing before action of detention is taken and adjudication in regard to legality and propriety of detention before an independent tribunal. Both these provisions are manifest in Article 10 which provides for disclosure of the grounds of detention as well as reference to review board consisting of judges sitting or retired, of the superior Courts. Such provisions which in essence are strongly based on the rules of natural justice are very often contained in the several laws or sub‑constitutional instruments providing for preventive detention. The Constitution‑makers being conscious of a possible desire of the Legislature and executive to amend such provisions have granted them a place in the Constitution itself. It would thus seem that Article 10 is clearly in the nature of ordinary law but has been conferred the status of a Constitutions: provision for the dominant reason of preserving the same. The true import of Article 10 was examined by a Division Bench of the Lahore High Court in the case of, Habiba Jilani v. Federation of Pakistan (P L D 1974 Lab. 153). Nasim Hasan Shah, J. (as he then was) dealt with both the questions whether Article 10 was a Fundamental Right and whether the same provision was is the nature of an ordinary law. He expressed as follows :‑

"The question, however, that arises in this case is whether proceedings wherein it is complained that the provisions of Article 10 has not been observed, amounts to praying for the enforcement of Fundamental Rights. In other words whether the provision of Article 10 can be deemed to be at all in the nature of the Fundamental Right. We think that the provisions relating to the question of arrest and detention of a person as well as the provisions relevant to the continuance of his detention are provisions in the nature of law belonging to the category of Statute Law, though enacted in the Constitution. The above provisions, doubtless, are contained in Article 10 which Article falls within the chapter relating to Fundamental Rights but, in essence, the provisions in question are an ordinary law, not in the nature of pure constitutional law but laws of sub‑constitutional character."

The learned Judge also relied on the case of Government of East Pakistan v. Mrs. Rowshan Biiaya Shaukat Ali Khan (P L D 1966 S C 286). The following passage was quoted by the learned Judge with approval :.‑

"When Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention it is clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law. While Constitutions are largely concerned with laying down principles which shall be followed an the making of laws, there is nothing to prevent a Constitution making body from making law of a special nature dealing with a special subject in the course of making a Constitution. In Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub‑constitutional laws relating to that subject. In so doing, the Article makes fresh law of a detailed character, belonging to the category' of statute law, albeit enacted in the Constitution."

In the same strain are the pronouncements in the case of Mohabat Shah v. Government of N.‑W. F. P. (P L D 1974 Pesh.24) and Major‑General Mian Ghulam Jilani v. Federal Government (P,L D 1975 Lah. 65). On a consideration of this wealth on case‑law I am clearly of the opinion that Article 10 is in the field of sub-constitutional legislation but has been preserved in the Constitution so that entrenchment of the provisions is not easy to obtain. To my mind there could be no other intention underlying this enhancement of status of the provisions. To sum up I am of the view this Article does not create or postulate a Fundamental Right and Article 2(3) of the Laws (Continuance in Force) Order does not affect Article 10 which occupies a place in the existing laws of Pakistan, despite the proclamation of Martial Law and suspension o Fundamental Rights.

16. I would end the discussion on the topic by reference to the expression of Mr. S. Sharifuddin Pirzada, who in matters of the kind is entitled to respect in his own right by reason of his learning and understanding.

In his book "Fundamental Rights and Constitutional Remedies in Pakistan", (1966 Edition) at page 202 he has stated the case as follows :‑‑

"The intention of the clause appears to be that law, by which should ordinarily be understood the kind of law which has previously in this judgment been distinguished by the description 'sub‑Constitution', shall govern every action which may have the effect of depriving a person of his liberty. When therefore, Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention, it is clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law. While Constitutions are largely concerned with laying down principles which shall be followed in the making of laws, there is nothing to prevent a Constitu tion making body from making law of a special nature dealing with a special subject in the course of making a Constitution. It seems perfectly clear that in Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons under all sub‑constitutional laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution."

17. In the light of the discussion that precedes I now propose to consider the validity of Article 9 of the Laws (Continuance in Force) Order and the provisions of M. L. O. 12, in pursuance whereof the orders of detention have been passed in respect of petitioners Mumtaz Ali Bhutto and Abdul Hafeez Pirzada. Article 9 of the Laws (Continuance in Force) Order reads as follows :‑

"Any provision in any law, providing for the reference of a detention order to a Review Board shall be of no effect."

18. The relevant provisions of Martial Law Order 12 which deserve consideration in this case are contained in paragraphs 3, 4 and 4‑A of the said Martial Law Order. Paragraph 3 provides that it shall not be necessary to provide the grounds for the action of detention to the person against whom the order is passed. Paragraph 4 again provides that the person detained may, within twenty days of the order of detention, submit a petition to the Chief Martial Law Administrator or a Martial Law Administrator, who has passed the order of detention, praying for relief. Paragraph 4‑A again provides that such petition as may be preferred under paragraph 4 shall be referred to a committee for examination and report. The Committee in cases where petition is submitted to Chief Martial Law Administrator shall consist of the Secretary, Ministry of Interior and an Officer of the Armed Forces not below the rank of Brigadier while in case of a petition submitted to Martial Law Administrator such committee shall consist of the Home Secretary of the Province and an Officer of the Armed Forces not below the rank of a Colonel. The members of the Committee have to be nominated by the Chief Martial Law Administrator or a Martial Law Administrator according as the petition is preferred before any one of them. Sub‑paragraph (2) of paragraph 4‑A again states that on receipt of the report of the Committee, the Chief Martial Law Administrator or the Martial Law Administrator, as the case may be, may make such orders as may be deemed fit. It may be stated that paragraph 4‑A was' inserted in Martial Law Order 12 on 31‑12‑1977, vie. after the judgment of the Supreme Court in the case of Begum Nusrat Bhutto. The other salient feature of Martial Law Order 12 is that while initially this Martial Law Order did not specify any limit of time for which a person could be detained, a proviso was added to paragraph 2 of the said Mart lal Law Order to provide for a maximum period of twelve months detention in the aggregate. On 15‑9‑1978 the proviso inserted in paragraph 2 was amended so that the maximum period of twelve months was extended to two years.

19. It will now be useful to point out the departures as are contained in the Laws (Continuance in Force) Order and Martial Law Order 12 vis- -vis Article 10 of the Constitution. The departures are the following':‑

(i) no grounds need be supplied ;

(ii) maximum period of detention being two years ;

(iii) no provision for Review Board ;

(iv) the powers of the Committee far more diminished than that of the Review Board ;

(v) the manner and the place of detention to be determined by the detaining authority and not the Review Board ; and

(vi) no provision for subsisting allowance for the family of the person detained.

20. Petitioner Abdul Hafeez Pirzada has mainly dwelt on the departures as are contained at (i) to (iv) in the previous paragraph. The contention is that Article 10 not being capable of suspension, the extent to which departure is made in the Laws (Continuance in Force) Order or Martial Law Order 12 is without lawful authority and of no legal effect entailing the consequences that the petitioners were held in custody without lawful authority and in an unlawful manner. Needless to say, that the powers of this Court under Article 199 of the Constitution are not affected by the imposition of Martial Law or by any other instrument. To such extent the learned Attorney -General made a categorical statement that the powers of the Court under Article 199 have not been abridged. Even the Supreme Court in the Me of Begum Nusrat Bhutto examined the question in regard to the powers of the Courts and at page 719 had recorded that the superior Courts continue to have the power of judicial review notwithstanding anything to the contrary contained in the Laws (Continuance in Force) Order, to test the validity of its provisions and any action taken thereunder in the light of the principles regulating the question of law and doctrine of necessity. Such conclusions are recorded in paragraph (vi) at page 722 of the report.

21. The tenor of the judgment of the Supreme Court both in the case of Begum Nusrat Bhutto and Mr. Zulfiqar Ali Bhutto v. The State predominantly brings out an anxiety of their Lordships to‑ test the validity of each action by reference to the Constitution and if such action bear resemblance to action which can be taken under the Constitution their Lordships have validated that action. Additionally, what I gather from those judgments is that in cases when action is in conflict with the provisions of the Constitution a further effort is required on the parts of the Court sitting in judicial review to determine whether the same can be justified on the ground of necessity. If any action does not fall within the scope of any of the two canons or tests, the superior Courts can hold that the action is without lawful authority and of no legal effect. In regard to the departures one has no difficulty in arriving at the conclusion that the same are not coveted by any provisions of the Constitution as justified action. The next question is whether such departures from Article 10 can stand the test of necessity.

22. We had specifically asked the learned Attorney‑General if the departures could be justified on ground of necessity. The learned Attorney -General stated that in spite of the petition not having raised such ground, he would advert to the doctrine of necessity as underlying such departures. He stated that regard being had to the law and order situation and the incidence of crime in the country, it was necessary to make departures from the provisions of Article 10 of the Constitution. In that context my learned brother Fakhruddin G. 'Ibrahim, J. has made some observations in his opinion but even I have no hesitation in saying that near perfect peaceful conditions exist in the country today. No doubt there was a holocaust in the four months preceding the imposition of Martial Law but by and large the things are settled down and the populace has accepted the new order as a temporary phase. I can take judicial notice of the fact that even elections are to be held towards the end of 1979. It appears to be difficult to justify the departures or at least continuation of the departure from Article 10 of the Constitution at the present time. In the case of the present petitioners there is an added reason to forbid action against them under M. L. O. 12 because both of them are facing proceedings before the Disqualification Tribunals and for such reason they are forbidden from all political activities. In my view any departure from the provisions of Article 10 of the Constitution is completely unwarranted.

23. There is a further reason which has heavily weighed with me in appraisement of the validity of Article 9 of the Laws (Continuance in Force) Order as well as such provisions of M. L. O. 12 as ace in conflict with the said Article. On a reading of the Article 10 one finds that the main obligations are in regard to the communication of the grounds of detention as also the submission of the case of the detenu to the Review Board. These are distinctly in the nature of obligations, cast on the Government. These provisions, in my view, are translations of the concept of natural justice into the Constitution itself. The doctrine of natural justice is divisible in two parts, the first relating to condemnation without hearing and the second to bias in Tribunal. Both these principles are the pivots over which the entire edifice of natural justice has come to rest and Article 10 is the recognition given to these principles. Under the provisions contained in paragraph 3 of M. L. O. 12 it is not necessary to furnish grounds on which detention proceeds. This by itself is a violation of the Fundamental Principle of natural justice. Not merely that but by following paragraph 3 one makes the provisions of paragraphs 4 and 4‑A almost meaningless and illusory. One cannot expect an effective petition from a detenu if he does not know the grounds on which he is detained and in that case the detenu a is left only to imagine what he should state in the petition. The Committee again will make its recommendations or tender its advice in relation to what is stated in the petition and if the petition cannot refer to the ground of detention nor is petitioner heard the efforts of the Committee would be in vain. Coming to the other aspect of the composition of the Committee it seems that committees of the nature as are contemplated by paragraph 4‑A of M. L. O. 12 can hardly sit without bias. The detention orders are pa either by the Chief Martial Law Administrator or Martial Law Administrator or Deputy Martial Law Administrators. The Committees are composed of subordinate officers in the Armed Forces and subordinate secretaries in the Civil Government. It is unthinkable that these Committees would bring to bear an independent mind on the petition of a detenu or would have the courage of recording an opinion that the detention was bad. It may well be that the person is detained on the reference or advice of the Home Secretary in the Province or Interior Secretary at the Federal set up. In sue case it is deeply meaningless to have a Committee of such composition. Indeed in the present case counter‑affidavits have also been filed by a Section Officer in the Home Department. Such Section Officer has to act under the orders of the Home Secretary and if a petition is again addressed to the same Home Secretary, the results are better left to imagination rather than expression. There is still another angle from which the question has to be considered. In the case of Begum Nusrat Bhutto imposition of Martial Law was justified on ground of necessity emanating from the Legislature and the executive having forfeited their moral content. In regard to the judiciary the Supreme Court clearly held that such considerations did not arise in regard to the judicial organs of the State. My Lord the Chief Justice at page 717 of the report expressed as follows :‑---

"Muslim Rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim Community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts."

24. The learned Attorney‑General has urged before us that the proceedings before the Review Boards are not in the nature of judicial proceedings. I agree that the proceedings are not of that nature but a duty is cast on the Chief Justices to constitute the Review Boards for the purpose of Article 10 of the Constitution. Such Review Boards stood constituted and the same are composed of Judges of superior Courts whether sitting or retired. By the supersession of provisions regarding the Review Boards the Chief Justices have been deprived of the power to constitute the Boards, and by the provisions of constitution of new Committees consisting of Office from the Armed Forces and the Civil Secretariat, the independence, the H the Review Boards had, appears to have been displaced. Since Revenue Boards are quasi‑judicial bodies their composition needs to be such that the possibility of their members' identification with a party or any indication of partisanship is eliminated.

25. While on this subject I must take notice of the argument advanced by the learned Attorney‑General. He urged before us that the Supreme Court in the judgment in the case of Begum Nusrat Bhutto had recognized a power in the Chief Martial Law Administrator to amend the Constitution. He went on to state that the concept of necessity governing the power to amend the Constitution had again been discussed by the Supreme Court in the case of Mr. Zulfiqar Alt Bhutto v. The State (P L D 1978 S C 40). He has relied on a paragraph appearing at page 58 of the said report to demonstrate that if the amendment in the Constitution is relatable or bears nexus to any of the acts permitted to be done by the Chief Martial Law Administrator, the acts shall be presumed to be a product of State necessity. I find it difficult to construe the judgment in the case of Mr. Zulfiqar Ali Bhutto in the manner the learned Attorney‑General would wish to have it construed. In the very paragraph on which the learned Attorney‑General has relied the tests of validity are that such action should be in the public interest and aimed at achieving the objectives of Martial Law. It cannot be said that if the action of the Chief Martial Law Administrator falls within any one of the categories considered in isolation it is presumed to satisfy the test of necessity, regardless of the reactions on other conclusions recorded by Supreme Court. If we are to agree with such interpretation then the power that has been conferred on the Chief Martial Law Administrator to amend the Constitution would virtually operate to confer on him the power to do anything that he may think best and render the power of judicial review nugatory. That would mean that he was the only judge of his actions. That may even be meant to imply that the powers of the Courts could be curtailed by him because even such powers come from the Constitution. In these circumstances it would be difficult to reconcile the various other clauses as are contained in the conclusions recorded by their Lordships in the case of Begum Nusrat Bhutto. On reading the two judgments of Begum Nusrat Bhutto and Mr. Zulfiqar Ali Bhutto together 1 am clearly of the view that amendments in the Constitution can only be justified on ground of necessity.

26. My conclusion on the point is that Article 9 in the Laws (Continuance in Force) Order and paragraphs 3, 4 and 4‑A in M. L. O. 12 are in conflict with Article 10 of the Constitution, which, in my view, is no suspended ; and those also violate the principles of natural justice, I am further of the view that M. L. O. 55 whereby the maximum period of detention was extended from one year to two years is also in conflict with Article 10, and action taken in accordance with these provisions, has to struck down on that ground alone, more so as it cannot even be justified on ground of necessity.

27. In relation to M. L. O. 55, it is worthwhile considering, although the point was not raised, the proviso to clause (7) in Article 10, as the same imposes limits on the period of detention in pursuance of a law providing for preventive detention. The constitution of 1973 originally provided for deprivation of the protection against detention for an unlimited span of time in the case of a person who was employed by, or worked for, or acted on instructions received from, the enemy. By Act XXII of 1975, the Constitution was amended so that the proviso as it stands today reads as follows :‑

"Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any party thereof or who commits or attempts to commit any act which amounts to an anti‑national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti‑national activity."

The position that emerges is that the protection as to limits of time for detention is not available in case of persons, who‑‑

(a) are employed by, or work for, or act on instructions received from the enemy ;

(b) act or attempt to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof ;

(c) commit or attempt to commit any act which amounts to an anti-national activity as defined in a Federal Law or is a member of any association which has for its objects or which indulges in any such anti‑national activity.

28. In the context of the present case it becomes necessary also to examine the import of the word "Security" as the detention orders of the both petitioners state that they were likely to act in a manner prejudicial to the security of Pakistan. The ordinary meaning of word may be safety. The Oxford English Dictionary defines 'Security' as `the condition of being protected from or not exposed to danger ; safety' In ordinary parlance the word "Security" in relation to the State would imply guarding against external aggression or meddling, so that the frontiers are weakened exposing the State to danger of displacement of independence or curtailment of sovereignty or diminution of territory. I may also refer to the security of Pakistan Act XXXV of 1952, to find out if the proviso to clause (7) of Article 10 meant to confer on the word "Security" an extended meaning parallel to the perimeters of the Security of Pakistan Act. This Act does not define the word "Security" but the same only provides for action against persons "acting in a manner prejudicial to the defence, external affairs and security of Pakistan, or the maintenance of supplies and services essential for the community or for maintenance of public order." The preamble to the Act contains these words. By reference to these words it could not be concluded that the word "Security" is sought to be given any extended meaning even in the Constitution for if that were so the word should at least have been defined as such and in any case the use of the word "Security" in preamble of Security of Pakistan Act would not have been necessary. I am therefore of the view that the word "Security" as used in proviso to clause (7) of Article 10 has to be given its ordinary meaning, without any relation to the provisions of the Security of Pakistan Act. It may further be pointed out that this proviso while referring to anti‑national activities mentions the anti‑national activities as were referred to in any Federal Act, thereby implying reference to prevention of Anti‑National Activities Act, VII of 1974. The distinction highlights the conclusion that the word "security" as used in proviso to clause (7) of Article 10 conveys ordinary meaning of the word.

Anti‑national activity as used in the same proviso bears an implied reference to the Prevention of Anti‑National Activities Act, 1974. Section 2(a) defines "anti‑national activity" as follows :‑‑

"Section 2. Definitions.‑In this Act, unless there is anything repugnant in the subject or context,‑

(a) "anti‑national activity," in relation to an individual or association, means anything done by such individual or association, whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise,‑

(i) which is intend, or supports any claim, to bring about, on any grounds whatsoever, the secession of a part of the territory of Pakistan, from the Federation, or which incites any individual or group of individuals to bring about secession ;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of Pakistan ;

(iii) which in any manner encourages or incites, or is intended or is likely or tends to encourage or incite, the public or any group thereof to create, open or continue any regional front or 'mahaz' of any kind based on racial, linguistic or similar ideologies and consideration with a view to disrupting the unity of the people of Pakistan ; or

(iv) which in any manner propagates or advocates that the citizens of Pakistan‑comprise more than one nationality."

29. My conclusion therefore is that to the extent the action of detention under M. L. O. 12 departs from the proviso to clause (7) of Article 10 of the Constitution, the action is bad in law. However, to the extent of action pursuant to the object of preventing a person from acting in a manner prejudicial to the security of Pakistan the defence of Pakistan or any part thereof, the provisions of M. L. O. 12 being consistent with Article 10, such action may be valid, though perhaps it could be attacked on the ground of the legislative field being occupied. It is, however, not necessary to go into the latter question in this judgment. . Such action could also not be protected on the ground of necessity in the circumstances of this case.

30. Having dealt with the above points I now proceed to examine the material on which the petitioners are detained as well as the detention orders. Both the petitioners were initially arrested on 5‑7‑1977 and have continuously remained in custody but for a brief period of forty‑nine days. The previous petition challenging their detention orders was dismissed by a Division Bench of Fakhruddin CJ. Ebrahim and Ajmai Mian, JJ. Their Lordships took the view that the statements made by the two petitioners in the Court which was dealing with an earlier Petition contained such material as might justify their detention under M. L. O.

12. The questions in regard to validity of M. L. O. 12 do not appear to have been raised before the Division. Bench, not at least in the manner in which the same were raised before this Full Bench.

31. The principles that have been formulated by the Supreme Court and High Courts in the matter of justification underlying preventive detention are that for depriving a citizen of personal liberty there should be reasonable grounds which should be sufficient to conclude that in order to achieve the objects of the legislation providing for preventive detention it is necessary, to detain a person. The grounds or material are subject to judicial review and the mere subjective satisfaction of the detaining authority would not be sufficient to sustain the order. The Court has to be satisfied not merely as to sufficiency of grounds but also reasonableness.

32. While the considerations for initial detention must mainly be directed to examination of the acts or omissions of the person sough to be detained, the onus in case of extension of the period of detention is higher because, not merely the propensities or mental attitude of the detenu has to be borne in mind, but even the external circumstances have to be reviewed to see if the atmosphere in the country is such that the a detenu, if he is still prone to act in the same manner, is likely to produce the effects or conditions that are sought to be avoided by the statute. If such circumstances are kept out of consideration, it would lead only to the conclusion that the detention was being extended to punish the detenu rather than restrain him from pre-judicial acts.

33. The learned Advocate‑General has relied on the case of Inayatulla Khan Mashriqi v. Crown (P L D 1952 Lah. 331), to raise an argument that for extension of the period of detention fresh satisfaction is not necessary or at least the degree of satisfaction should be much lower than at the time of initial detention. He has also relied on the case of Mirza Chaghtai v. Government of West Pakistan (P L D 1968 Lab. 728), to canvass a proposition that extension of the period of detention is always valid unless order of extension is perverse or malicious. The case of Inayatullah Khan Mashriqi was on a petition under section 491, Cr. P. C. when writ jurisdiction was absent, Muhammad Munir, C. J. referred to two cases from Indian Jurisdiction, namely, Zamir Qasim v. Emperor (A I R 1958 All. 285) and Kastoor Chand v. Sarkar (A I R 1960 Raj. 40). In these cases emhasis was laid on the need for a locus penitentiae in the otherwise punitive' aspect of detention. Muhammad Munir, C. J. disagreed with the reasoning adopted in the two Indian cases on the ground that the statutes enabling preventive detention which were examined by the Indian High Courts did not provide for extension of the period of detention whereas the Punjab Public Safety Act, 1945 did so provide. However at page 343 of the report the learned Chief Justice stated that the Court had in such cases not to see whether the opinion was rightly formed but whether it was formed in fact and honestly. Again at page 344 of the report the learned Chief Justice stated as follows;----

"Unless, therefore, a man is a known incorrigible or the danger apprehended is so grave that it will be imprudent to take any chances, the Government would be well advised in avoiding an order of extension with a view to affording the detenu a locus penitenttae."

In short the judgment lays down the proposition that extension of an order of detention was permitted if the Government could honestly come to the conclusion that if released the detenu would again resort to his former activities. In the case of Mirza Chughtai the Division Bench of the West Pakistan High Court relied on the Judgment of Inayatullah Mashriqi and came to the conclusion that renewal of order of detention would be justified if the Government upon the material available against the detenu honestly formed an opinion, that if released the detenu would again engage himself in the same activities. In that context the Judgment in the case of Government of West Pakistan v. Haider Bux Jatoi (PLD1969SC210), is relevant. In this case the Supreme Court was concerned with analysis of the jurisdiction of a Review Board and it must be pointed out that under the present Article 10 and even under the West Pakistan Maintenance of Public Order Ordinance initial period of detention could be extended only if the Review Board so recommended. Yakoob Ali, J. (as he then was) recorded sit page 219 of the report that the authority to extend the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power of detention which could not exceed three months. His Lordship also recorded on the same page that the opinion of the Board has to rest on the material produced before it which is relatable to the grounds on which the detention proceeds and further that the proceedings before the Board are of quasi judicial nature and amenable to judicial review before the Superior courts. It would thus seem that after the initial detention of three months the extension is not mechanical or automatic but has to proceed on the examination of material which must satisfy the authority extending or recommending the period of detention that such extension is indeed warranted and necessary. I have not been able to persuade myself to accept the contention of the learned Advocate‑Genera that further detention is a mechanical process or that the degree of satisfaction for extension of detention is lower than the degree required for initial detention. I would even state that this would appear to be absolutely incongruous because for a shorter period of detention a higher degree of satisfaction would be necessary but for a longer period of detention either no satisfaction or a lesser degree of satisfaction would be required.

34. I would concern myself with the position that the detention was ordered on 25‑9‑1978. In regard to petitioner Abdul Hafeez Pirzada a Minute Sheet was submitted by a Major in the Martial Law Headquarters to the Deputy Martial Law Administrator. The statement of reasons recommending detention of petitioner Abdul Hafeez Pirzada reads as follows:‑

"(1) Detenu Mr. Abdul Hafeez Pirzada gave a statement before Sind High Court which was carried by the Press and memorandum of the statement filed in the Court. Meyar Weekly dated 18 and 25 March 1978 published a portion of detenu's statement, the summary of wild statement is as follows :‑

(a) The Martial Law authorities want to establish dictatorship.

(b) The C. M. L. A. is unreliable. He has no intention to hold elections until and unless he is assured that P. P. P. is completely destroyed and he is in a position to pack the assemblies with his own stooges.

(c) The C. M. L. A. has destroyed the economy of the country by denationalising industries.

(d) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab countries but was insulted and disagraced everywhere.

(2) From the above statement it is evident that the detenu has been very vocal against the Martial Law, made personal attacks on the personality of C. M. L. A. and other Martial Law Authorities. By levelling such allegations the detenu has tried to incite public to rise in revolt and overthrow the present Government."

The Deputy Martial Law Administrator recorded a minute on the same day to the following effect :‑‑

"On perusal of the material placed before me, I am of the opinion that it is necessary to prevent Mr. Abdul Hafeez Pitxada 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. He, therefore, be detained under M. L. U. 12 for a period of another 90 days."

In the case of petitioner Mumtaz Ali Bhutto the same Major in the Martial Law Headquarters submitted the following note:‑

"(1) Detenu Mr. Mumtaz Ali Bhutto gave a statement before Sind High Court which was carried by the Press and memorandum of the statement filed in the Court. Meyar Weekly dated 18 and 25 March 1978 published a portion of detenu's statement, the summary of wild statement is as follows:‑

(a) Throughout the agitation after elections of March 1977 the C. M. L. A. was working as agent of a foreign imperialist power.

(b) The C. M. L. A. purposely sabotaged the negotiations between P. P. P. and P. N. A. by opposing withdrawal of Army from Baluchistan and release of Mr. Abdul Wali Khan a leader of defunct N. A. P.

(c) The C. M. L. A., acting as agent of a foreign imperialist power, overthrew the Government of P. P. P. when he found that agreement between P. P. P. and P. N. A. was about to be signed and then it would become difficult to impose Martial Law.

(d) The Martial Law authorities want to establish dictatorship.

(e) The C. M. L. A. is unreliable. He has no intention to hold elections until and unless he is assured that P. P. P. is completely destroyed and he is in a position to pack the assemblies with his own stooges.

(f) The C. M. L. A. has destroyed the economy of the country by denationalising industries.

(g) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab countries but was insulted and disgraced everywhere.

(2) From the above statement it is evident that the detenu has been very vocal against the Martial Law, made personal attacks on the personality of C. M. L. A. and other Martial Law authorities. By levelling such allegations the detenu has tried to incite public to rise in revolt and overthrow present Government."

The order in the case of petitioner Mumtaz Ali Bhutto was similar to that of petitioner Abdul Hafeez Puzada.

35. As would be evident from the material which has formed the basis of detention it would appear that the petitioners have been sorely critical about the Martial Law authorities particularly the Chief Martial Law Administrator. There is nothing in this material to indicate that there was an exhortation to the public for violence nor does the material indicate that the petitioners were prone to defeat the purposes of Martial Law, namely the holding of Elections or restoration of law and order situation. On the contrary petitioner Abdul Hafeez Pirzada expressed an anxiety for the holding of Elections. The other Minute Sheet which led to the detention of the two petitioners by an order dated 27‑6‑1978 has also been placed o record and even in that Minute Sheet the material is the same. What is more that the detaining authority has not at all considered the external conditions to determine whether what was stated by the petitioners as early a in March 1978 was still likely to create an unhappy situation. It is no even stated that the past detention, if at all if proceeded on substantial grounds, has not had the desired effect of producing locus penitentiae in the two petitioners, an element necessarily requiring consideration in the matter of subsequent detenions.

36. The next argument that has been advanced by the petitioners is that M. L. O. 12 contemplates four types of action against a person namely:‑(a) directing that be detained; (b) requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the order; (e) imposing upon him such restrictions as may be specified in the order in respect of his employment or business, and in respect of his activities in relation to the dissemination of news or propagation of opinions; and (d) otherwise regulating his conduct in regard to any matter as specified in the order.

37. It is urged by the petitioners that while M. L. O. 12 does not provide for a provision parallel to the provisions of the Defence of Pakistan Ordinance laying down that normal vocations of life shall be interfered with only to the minimum and necessary extent, still the four categories of action permitted under M. L. O. 12 are designed for a consideration by the detaining authority as to which one out of these four actions was justified and necessary in the circumstances of each case. The argument appears to be that liberties of citizens acre to be curtailed only to such extent and in such a manner as could be deemed justified in the circumstances and should not be more harsh than necessary. It is further submitted that there are a number of functionaries on whom the power to detain is conferred and each one may have his own norms to measure the necessity and quantum of action. It is not necessary to go into this question in detail but suffice it to say that action has to be related to the amount of evil that requires to be avoided and the detaining authority has to ipso facto indicate in the order of detention as to why he is preferring the extreme action of detention specially in those, cases where the detention in the opinion of the detaining authority has proceeded on the basis of certain statements which according to him were prejudicial to the purposes of Martial Law. In the present case a perusal of the earlier order of detention passed in the case of petitioner Mumtaz Ali Bhutto states that if the petitioner was set free at this) stage he would go to the interior of Sind and incite people to rise in revolt against the Martial Law Government thereby creating a serious la and order situation. It would mean that the officer recommending the 7 detention of petitioner Mumtaz Ali Bhutto was himself of the view the prejudicial activity could be carried on by him if he goes to the interior of Sind. Would it not in that case be sufficient for the detaining authority to have passed an order restricting the movements of Mumtaz Ali Bhutto to a place which was not located in the interior of Sind. In the ca of petitioner Abdul Hafeez Pirzada the statement of the officer recommending his detention reproduced above does not at all indicate as to what he was likely to do in case he was released. Similar is the case in regard to the recommending note of the officer in regard to petitioner Mumtaz Ali Bhutto.

38. When this case came up for bearing before the Division Bench which forwarded the case to my Lord the Chief Justice for constituting a bigger Bench, the learned Advocate‑General was specifically asked about the grounds on which the petitioners were detained. He made a reply that "by and large the grounds of fresh detention of the petitioner were the same as the grounds on which the previous detention had been ordered".

39. On an appreciation of the Minute Sheets which have been produced before us I am early of the opinion that no good reason existed for extension of the period of detention of the petitioners, the order of the detaining authority suffers from a manifest lack of application of mind and is more or less mechanical and further that the external circumstances which were material for the purpose of determining whether the petitioners would still attempt to create a situation endangering the objects of M. L. O. 12 have not been considered. I would again state even at the risk of repetition that both the petitioners are being proceeded against before the Disqualification Tribunals and the pendency of these cases forbids them from all political activities. This factor also does not appear to have been considered by the detaining authority.

40. The hearing in this case had been concluded on 13‑12‑1978 but before the Judgment could be announced the period of detention expired, so that on 20‑12‑1978, fresh detention orders against the two petitioners were passed by the same respondent, namely Major‑General Mahmood Aslam Hayat, the Deputy Martial Law Administrator, C‑Zone, Karachi. These orders were served on the petitioners on 21‑12‑1978, on the printed forms that have been prepared for the purpose. Even the previous orders, or at least some of them are on the same printed forms which state in print that the purpose of detention was to prevent them "from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed, the security of Pakistan and the maintenance of peaceful conditions therein" and the detention was ordered in Central Prison, Karachi. The words "Central Prison, Karachi" appear to have been typed on the printed form in the space left blank for the purpose. During the hearing of the petition, an order bad been passed by this Court for detention of the petitioners at their respective houses, and such order bad proceeded on a statement of the Advocate‑General. The petitioners then sent telegrams to all the Judges comprising this Full Bench stating that at their insistence further endorsement was made by a Police Officer and an Assistant Superintendent of Jail to change the place of detention to be the respective residence of the two petitioners. A grievance was also made that there were two co‑existing detention orders against the petitioners. The petitioners also sought personal production before the Court on 23‑12‑1978. The petitioners were called on 28‑12‑1978 and earlier they had sent an amended petition to the Court. This amended petition was admitted on record without objection. The Advocate‑General sought time until 31‑12‑1978 for production of the material and grounds on which further detention bad proceeded. Such material and grounds (as recorded on Minute Sheets) were produced on 31‑12‑1978. On 28‑12‑1978 the petitioners also produced copy of a letter dated 20‑12‑1978, purporting to have been signed by Major Azhar Jamil, for the Deputy Martial Law Administrator, which bears a confidential note at ,to bottom stating as follows:‑----

"The place of detention in the orders have been shown as Central Prison, Karachi, whereas both are at the moment under house arrest. This should be clarified from Major Mahmud Khan of D. M. L. A. H. Q. and action to be taken accordingly.

(Sd.)

21‑12‑1978."

It seems that Major Azhar Jamil on 21‑12‑78 added a note on the original detention orders dated 20‑12‑1978 (which was signed by Major. General Mahmood Aslam Hayat stating that the orders had been modified as under:‑

"Para. '2' in the above‑quoted letter has been amended "2". The detenus may be detained at their respective residences" (existing pare. 2 as para. 3).

(Sd.)

(M. Azhar Jamil). Major.

Attested:

(Sd.)

Superintendent.

Karachi Central Prison.

21‑12‑1978. at 20‑50.

On 31‑12‑1978 the learned Advocate‑General supplied copies of the minute sheet (grounds). In respect of petitioner Abdul Hafeez Pirzada the minute sheet as is relevant states as under:‑

"(4) The statement made by the detenu in Court is full of objectionable utterances which tend to:‑

(a) Incite hatred against the Martial Law Authorities in general and the C. M. L. A. in particular.

(b) Suggest that the present Government is not sincere about holding elections.

(c) C. M. L. A. has ruined the economy of the country by denationalizing industries.

(d) The C. M. L. A. has ruined the prestige of the country abroad.

(5) Besides during the hearing of his recent petition, the detenu, with reference to his statement referred to above, is said to have claimed that if he had said even one‑tenth of the same thing at a public meeting at Mochi Gate, the whole of Lahore would have burnt. In the course of his submissions, he is also reported to have dilated on sensitive extraneous matters which were outside the scope of his petition and which tended to incite disaffection and hatred against the Government. According to the reports the detenu was highly critical of the Government in the context of the recent statement of the Indian Foreign Minister on Kashmir issue. He emphasised that the present Government had been unable to deal adequately and effectively with the threats of "the Jan Sanghi Vajpayee". He also accused the C. M. L. A. of having deprived the people of Pakistan of their Fundamental Rights and stated that perhaps the C. M. L. A. wanted to punish the people for their agitation of March 1977 and for bringing him (C. M. L. A.) into power.

(6) The above clearly shows that there has been no change of heart and purging of mind on the part of the detenu. The reasons and apprehensions for which his detention was ordered on 28th June 1978 still hold good."

The Deputy Martial Law Administrator passed an order in the following words:

"I have perused the papers placed before me. I am of the opinion that there has been no change of heart on the part of the detenu and it is necessary that the period of his detention be extended. I, therefore, direct that Mr. Abdul Hafeez Pirzada be detained under M. L. O. 12 at his residence for a further period of 90 days from today so that he may be prevented from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed. His detention is necessary also in the interest of the efficient conduct of Martial Law and for maintenance of peaceful conditions in the area."

In regard to petitioner Mumtaz Ali Bhutto the Minute‑Sheet states as under:‑

(4) As stated earlier the detenu has made wild allegations against the Martial Law and the C. M. L. A., some of which are reproduced below:‑

(a) Throughout the agitation after elections of March, 1977 the C. M. L. A. was working as agent of a foreign imperialist power.

(b) The C. M. L. A. purposely sabotaged the negotiations between P. P. P. and P. N. A. by opposing withdrawal of Army from Baluchistan and release of Mr. Abdul Wali Khan a leader of defunct N. P. A.

(c) The C. M. L. A., acting as agent of a foreign imperialist power, overthrew the Government of P. P. P. when he found that agreement between P. P. P, and P. N. A. was about to be signed and then it would become difficult to impose Martial Law.

(d) The Martial Law Authorities want to establish dictatorship.

(e) The C. M. L. A. is unreliable. He has no intention to hold elections until and unless he is assured that P. P. P. is completely destroyed and he is in a position to pack the assemblies with his own stooges.

(f) The C. M. L. A. has destroyed the economy of the country by denationalizing industries.

(g) The C. M. L. A. has ruined the prestige of Pakistan. He has been running about in the Arab countries but was insulted and disgraced everywhere.

(5) The detention has not deterred the detenu from indulging in unlawful activities. On 10th July, 78 while returning from Court to Central Prison, Karachi, the detenu with the collusion and connivance of his guard escaped temporarily from lawful custody and visited his residence near Clifton Bridge. This is a pointer to the hardened attitude of the detenu.

(6) Unless detained, it is genuinely apprehended that he will go out in the interior of Sind and incite people to rise in revolt against the Martial Law Government. If set free, he will disrupt the law and order situation and frustrate the holding of general elections. Hence it is recommended that he be detained for a further period of 90 days."

41. While dealing with the material and grounds in support of the extension of period of detention a reference is necessary to certain documents which are available on the record of the Martial Law Headquarters which was produced before us. I find a letter written as early as 13th August, 1978, by an officer in the Martial Law Headquarter stating the M. L. O. 12 authorised a maximum detention of twelve months and period in the case of the petitioners was to expire. Another letter was then received stating that by law the maximum period of detention had been extended so that the period of detention could be extended. These documents have been referred to and relied upon by the petitioners to show mala fides underlying promul gation of M. L. O. 55 but for the purposes of this case it is not necessary to enter that question, more so for the reason of the view I have taken in regard to extension of the maximum period of detention beyond twelve months.

42. Coming now to the reasons or grounds underlying the fresh detention order it would be seen that most of them are repetitions of what was stated in the grounds forming the basis of the earlier detention orders. In para. 5 of the Minute Sheet relating to petitioner Abdul Hafeez Pirzada P reference has been made to his arguments before this Full Bench. This aspect of the case has been dealt with by My Lord the Chief Justice and my learned brothers and I would not like to add much to it except for stating that besides the material being in some respects factually incorrect such material in no way could found an inference that the petitioner Abdul Hafeez Pirzada was acting in any manner which could be prejudicial to or a step towards frustration of the purposes of Martial Law. It is stated that the petitioner Abdul Hafeez Pirzada intends to obstruct the holding of general elections. I clearly remember that this petitioner said more than once during arguments that he and his party; namely Pakistan Paople's Party want early elections. He further stated that he had a grievance in regard to postpone ment of elections. On such material it is difficult to come to a conclusion that petitioner Abdul Hafeez Pirzada wanted to frustrate the general election. There is also a clear contradiction if we refer to para. 4 of the Minute Sheet because in this para. it is stated that the detenu made objectionable utterances which tend to "suggest that the present Government is not sincere about holding elections". The two conflicting statements are not easy to reconcile.

43. Coming again to the grounds of detention (Minute Sheet) in regard to petitioner Mumtaz Ali Bhutto it would be seen that what is stated in para. 4 is verbatim reproduction of the Minute Sheet (grounds of detention) dated 27‑6‑1978 except that one ground stated in clause (h) of the said Minute‑Sheet stands omitted. In addition it is stated that as early as on 10‑7‑1978 this detenu "with the collusion and connivance of his guard escaped temporarily from lawful custody' and visited his residence near Clifton Bridge". This behaviour of detenu Mumtaz Ali Bhutto is considered as a "pointer to the hardened attitude" of the detenu. All that needs to be stated is that if allegation of escape from custody be true, it would amount to a substantive crime under section 224, P. P. C., and I cant take judicial notice of the fact that even an order remand of petitioner Mumtaz Ali Bhutto for trial on this charge has been passed. A petition ha been filed before this Court in respect of that case. It is hard to see ho preventive detention could be ordered on the ground . that the person has committed a substantive crime.

44. The orders of the Deputy Martial Law Administrator are also of a very formal nature and indicate a predisposition to the passing of detention orders. All that is stated by way of reasons is that the detenus still persist in their attitudes and there was no change of heart. The external circumstances have not been taken notice of.

45. The petitioners have also pointed out a glaring discrepancy in the order of the Deputy Martial Law Administrator as in Minute Sheet and the actual order of detention served on the petitioners because the former states detention in the house of petitioners while the later states detention in Central Jail. The petitioners have contended that the Minute Sheet was prepared later, because, if the same had preceded the order of detention, such mistakes could not have occurred as it was Major‑General Mahmood Aslam Hayat who had signed both the documents and on the said date. The Advocate‑General has ascribed this mis-description in the place of detention to typographical error but in that regard no affidavit has been filed. Be that as it may, the point adds weight to the contention that the order was passed without proper application of mind.

46. Before closing the discussion on the topic I would wish to express that being conscious of the judgment of my learned brothers Fakhruddin G. Ebrahim and Ajmal Mian, JJ. in the earlier case of the petitioners, I had carefully watched and weighed the words of petitioner Abdul Hafeez Pirzada while he argued the case. Petitioner Mumtaz Ali Bhutto has only adopted the arguments. I did so with a view to find if he over‑stepped the privilege, which no doubt is qualified. I have clearly gained an impression that whatever was stated by petitioner Abdul Hafeez Pirzada was in complete accord with the qualified privilege, and in our country freedom of expression R even under Martial Law regime exists in principle. In comparable situation stray sentences are never to be taken into consideration by tearing them of from the context nor can mere strong or even bitter expressions invite action. There is a long line of decisions on the point and reference may be made to the case of Tojazal Hussain and another v. Province of East Pakistan (17 D L R 498), Queen v. Bal Ganghadar Tilak (I L. R 22 Bom. 112), Emperor v. Sadashiv Narayan Bbalerao (P L D 1947 P C 32), Sher Muhammad v. The Crown (P L D 1949 Lab. 511) and Daily Ehsan's case (P L D 1949 Lab. 282). Numerous other cases could be cited. In regard to satisfaction of the detaining authority and the exercise preceding the satisfaction I must state that looking at the material and the grounds in a reasonable manner I cannot persuade myself to the view that it was necessary for the purpose of objects envisaged by M. L. O. 12 to extend the detention of petitioners. In cases of this kind the detaining authority has to affirmatively come to the conclusion that the detenu on release was actually likely to do an act (which should be specified) rather than to merely state that he had not shown a change of mind and would act in a manner, which amounts only to reproduction of the text from M. L . O. 12.

47. Lastly, I must refer to an argument raised by the learned Advocate -General that the twelve months continuous period of detention has not expired despite the fact of the petitioners having remained in preventive detention for nearly sixteen months. He attempted to raise this contention on the basis of the language employed in the proviso inserted in paragraph 2 of M. L. O.

12. My learned brother Fakhruddin G. Ebrahim, J. has adverted to this aspect of the case In extenso and I am in full agreement with the process of his reasoning. I would, however, refer to the semi‑colon followed by the word "and" appearing in the proviso which can only be interpreted in a disjunctive sense so that the words followed by the word "and" would be read independently as to conclude that the proviso refers to 12 months detention in the aggregate not from the date of insertion of the proviso but by reference to the date of initial detention.

48. In the result I hold that the petitioners are held in custody without lawful authority and in an unlawful manner. They shall be set at liberty forthwith unless required in any other case.

I. MAHMUD, J .‑I have had the advantage of reading the judgments about to be delivered by my Lord, the Chief Justice and my learned brethren. While I agree with the ultimate conclusion reached by them that this petition should be allowed, I would like to state my own views on the constitutional questions raised before us.

2. The petitioner, Abdul Hafeez Pirzada, who argued his own case as well as that of his co‑petitioner Mumtaz Ali Bhutto, has raised the following submissions.

(1) Whether the constitutional safeguards against arrest and detention, including the maximum limit thereof, contained in Art. 10 of the Constitution are Fundamental Rights?

(2) Whether the suspension of Fundamental Rights by clause (3) of Art. 2, Laws (Continuance in Force) Order, 1977 is valid and if so, whether the rights provided by Art. 10 of the Constitution in particular have been suspended or they continue to exist ?

(3) Whether the detention of the petitioners under M. L. O. 12 as amended by M. L. O. 55, is not in accordance with law and contravenes Art. 4 of the Constitution.

(4) Whether M. L. O. 12 in so far as it contravenes the constitutional safeguards contained in Art. 10 of the Constitution, is bad for lack of State Necessity ; and

(5) Whether the orders of detention are not sustainable on merits?

3. On the first question, Mr. Pirzada submitted that the safeguards as to arrest and detention contained in Art. 10 of the Constitution are not Funda mental Rights as such, but are in the nature of Statute Law which, because they have been incorporated in the Constitution itself, cannot be abridged or taken away by any law providing for preventive detention and must prevail over and be deemed to be read into every such detention law, such as the M. L. O. 12 in question. Mr. Pirzada highlighted the following provisions of the M. L. O. 12 which contravene the constitutional safeguards of Art. 10 :‑---

(1) The limit on the maximum period for which a person can be kept under preventive derention, is 2 years under proviso to clause (2) of M. L. O. 12 as amended by M. L. O. 55, and thus contravenes Art. 10(7) of the Constitution;

(2) Clause (3) of M. L. O. 12 dispenses with the necessity of providing grounds for detention, thus violating Art. 10 (5) of the Constitution.

(3) The M. L. O. 12 fails to provide for review of detention orders by quasi‑judicial Review Board with a right of personal hearing before each extension of 3 months and thus violates Art. 10 (4) of the Constitution ;

(4) The M. L. O. 12 fails to provide for determination of the place of detention by a Review Board ; and

(5) It omits to make provision for maintenance for the family of the family of the detenu as is provided in Art. 10 (8) of the Constitution.

It is contended that the safeguards of Art. 10 of the Constitution, not being Fundamental Rights, the petitioners were not really moving the High Court for their enforcement but were only asking the High Court to exercise its constitutional jurisdiction under Art. 199 (1) (b) (i) to declare the offending provisions of M. L. O. 12 as void and that they are being held in custody without lawful authority and in an unlawful manner. The suspension of the Fundamental Rights by the Laws (Continuance in Force) Order, 1977 was, therefore, said to be of no consequence.

4. In support of the above interpretation of Art. 10, Mr. Pirzada relied strongly on the decision in Mrs. Habiba Jilani v. Federation of Pakistan (P L D 1974 Lah. 153) which was approved in Mohabat Khan v. Govt. of N.‑W. F. P. (P L D 1974 Pesh. 24) and in Maj: Gen. Mian Ghulam Jilani v. Federal Government (P L D 1975 Lah. 15) following certain dicta of the Supreme Court in Abdul Aziz v. Province of West Pakistan (P L D 1958 S C (Pak.) 499) and Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (P L D 1966 S C 268). In the case of Habiba Jilanl as well as in the cases of Mohabat Ali Khan and Maj.‑Gen. Mian Ghulam Alani, the detentions which were under Rule 32 of the Defence of Pakistan Rules, were challenged on the ground that the said Rule contravened certain safeguards of Art. 10 of the Constitution. The petitions were filed at a time when the Proclamation of Emergency was in force under Art. 232 of the Constitution and the right to move any Court for the enforcement of a number of specified fundamental rights conferred by Chapter 1 of Part II, including Art, 10, was suspended under Art. 233(2) during the period of emergency. The view of the Division Bench was expressed by Dr. Nasim Hasan Shah, J. that the provisions of Art. 10 are not in the nature of Fundamental Rights but in the nature of law belonging to the category of Statute Law, though enacted in the constitution. This view was said to be supported by dicta of the Supreme Court in the cases of Abdul Aziz and Mrs. Rowshan Bijaya Shaukat Ali Khan above referred to. It was, there fore, held that the provisions of Art. 10 stood incorporated in the detention law itself. (The Defence of Pakistan Rules) and that when a petitioner prays that the detention should be declared illegal for non‑compliance with the provisions of Art. 10, the petitioner is not seeking the enforcement of a Fundamental Right, but the High Court is simply being asked to perform its constitutional duty under Art. 199 (1) (b) (i) to satisfy itself whether the detenu is being held in custody in accordance with law.

5. With respect, the question whether the provisions of Article 10 were in the nature of Fundamental Rights or not, did not arise for consideration by the Supreme Court in either of the above‑mentioned two cases relied upon by the Division Bench. In Abdul Aziz's case, the detention of the petitioner was under the Punjab Public Safety Act, 1949 which failed to provide, inter alia, for an Advisory Board to function in accordance with Article 7(4) of the (1956) Constitution (corresponding to Article 10(4) of the present Constitution). It was contended on behalf of the petitioner that the provisions of Article 7(4) of the said Constitution was an "organic law" and required every detention law to contain such provisions on pain of the law itself being ultra Tires the Constitution and invalid. This contention was repelled by their Lordships of the Supreme Court and it was observed that the provisions of Article 7(4) were in the nature of ordinary statute law, albeit enacted in the Constitution and that the non‑inclusion of the provisions of Article 7(4) in the Statute Law, did not invalidate the statute itself, but rendered only the operation thereof invalid, namely the order of detention passed thereunder. In the other case of Mrs. Rowshan Bijaya Shaukat Ali Khan, the detention was under Article 41 of the East Pakistan Public Safety Ordinance, 1958, which was in conflict with the provision of the safeguards as to arrest and detention contained in Article 6 of the (1962) Constitution. The majority followed the earlier first mentioned Abdul Aziz's case and held that the constitutional safeguards as to arrest and detention contained in paragraph 2 of Article 6 were not "organic law" which laid down principles of legislation to be followed by all future detention laws before their validity could be established, but that they were enactments of positive law affecting preventive detention which must be read as supplementing the provision of any Statute of a sub‑constitutional kind existing in the same field. It is clear that in neither case, the Supreme Court was considering the question whether the safeguards as to arrest and detention were in the nature of Fundamental Rights. This question was also considered by a Division Bench of the erstwhile High Court of Sind & Baluchistan in Zarina Gauhar v. Province of Sind (P L D 1976 Kar. 1257). It was observed by the former Chief Justice therein that although "the Supreme Court spoke of the provisions in Article 9 of (1972) Constitution (correspon ding to Article 10 of the present Constitution) as being of a sub‑constitutional character or of a non‑organic character or as statute law, that did not make them (the rights) any the less part of the Constitution or of the provisions which confer Fundamental Rights". The Supreme Court in Ch. Manzoor Elahi v. Federation of Pakistan (P L D 1975 S C 66) has also treated the rights contained in Article 10 as Fundamental Rights while considering whether executive action taken in violation thereof was liable to be declared void.

6. It was further contended that the provisions of Article 10 as well as of Article 8(2) of the Constitution, were not rights as such but obligations or duties imposed on the Legislature and the executive not to make law or to take any executive action in contravention of the rights conferred by Chapter 1 of Part II of the Constitution‑Fundamental Rights. But in my humble view, the provisions of Article 10 comprise both obligations as well as rights. While they are obligations imposed on the Legislature and the executive, they are also rights vested in the person not to be dealt with except in accordance with the safeguards provided in Article 10. G. W. Patson in "A Text Book of Jurisprudence" (1946) at page 207, observes that "rights and duties are correlatives, that is, we cannot have a right without a corresponding duty or a duty without a corresponding right". Salmond on "Jurisprudence" (1957) at page 264, states that there can be no right without a corresponding duty or a duty without a corresponding right, any more than there can be a husband without a wife or a father without a child and that every duty must be a duty towards some person or persons in whom therefor, a correlative right is vested. Therefore, with respect, it will not be correct to say that the provisions relating to safeguards as to arrest and detention contained in Article 10 of the Constitution, are not Fundamental Rights. I notice that on a somewhat parity of reasoning, both my Lords, the Chief Justice as well as Z. A. Channa, J., have reached the same conclusion, that the Article 10, which provides safeguards as to arrest and detention really furnishes guarantees S to the detenu against State action and this creates a Fundamental Right protected by the Constitution. In this view ‑of the matter, I find no substance in the first submission of Mr. Pirzada.

7. The second submission of Mr. Pirzada was that Fundamental Right No. 10 has not been and in view of Article 8(5) of the Constitution could not be suspended except as expressly provided by the Constitution. The only provision of the Constitution which provides for limited suspension, is Article 233(1). Sub‑Article (1) of Article 233 provides that while a proclamation of Emergency is in force under Article 232, there would be no restriction on the power of the State to make any law or to make any executive auction which it would, but for the provisions of Articles 15, 16, 17, 18, 19 and 24 be competent to make or 'to take, during the period of emergency. As Article 10 has not been included, it would follow that even during the Emergency, the rights contained in Article 10 cannot be suspended and continue to exist. But as rightly submitted by Mr. Syed Sharifuddin Pirzada, learned Attorney‑General, Article 233(1) does no hold the field today and the legal position has altogether changed in vie of the validation of Martial Law and the provisions contained in sub‑clause (3 T of Article 2 of the Laws (Continuance in Force) Order, 1977 by the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff and another (1). Their Lordships observed at page 721;-----

"As the present petition under clause (3) of Article 184 of the Constitu tion is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide."

The distinction drawn in the case of Habiba Alani and the others referred to above, between the continuance of Fundamental Rights and the suspension of the right to move any Court for their enforcement during the period of Emergency proclaimed under the Constitution, could no longer be valid. The rights have been suspended independently of anything to the contrary contained in Article 233(1) of the Constitution, namely, by virtue of an extra‑constitutional Instrument, the Laws (Continuance in Force) Order, 1977 which has also been validated on the basis of the doctrine of State necessity. It was urged that the Supreme Court was not concerned with the question of suspension of Fundamental Rights but only whether they could be enforced by the Supreme Court under Article 184(3) of the Constitution. This submission, in my view, is misconceived. Sub‑clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 does not speak of suspension of the right to enforce Fundamental Rights, except with regard to proceedings for their enforcement pending in any Court. As Begum Nusrat Bhutto's petition was not a pending proceeding, there appeared to be no bar to the enforcement of the Fundamental Right. Therefore the Supreme Court had to consider whether the Fundamental Rights had been validly suspended. Having held that the Fundamental Rights had been validly suspended under sub‑clause (3) of Article 2 of the said Order, they became nonexistent and, there was, therefore, nothing to enforce under Article 184(3) of the Constitution during the period the proclamation of Martial Law was in force. The Supreme Court again armed the position as still good law in Syed Alamdar Hussain v. Abdul Rashid Qureshi and others (P L D 1978 S C 121) and held that the Fundamental Right of Article 13 relating to double prosecution was not operative in view of their earlier decision in Begum Nusrat Bhutto's case. A Division Bench of this Court in Rustam Ali v. Martial Law Administrator, Zone 'C' and others (P L D 1978 Kar. 736) and in Nazir Ahmad v. Abbas Ali Khan (P L D 1978 Kar. 777) and a learned Single Judge of the Lahore High Court (the Chief Justice) in Saeed Ahmed MaRk v. Federation of Pakistan (P L D 1978 Lah. 1218) applied the decision of the Supreme Court in Begum Nusrat Bhutto's case and held that the relevant Fundamental Rights were suspended and were for the present non‑existent. It is superfluous for me to add that sub‑clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, includes "Fundamental Rights conferred by Chapter 1 of Part II of the Constitution". The Fundamental Rights of Article 10 are included in that Chapter under the heading "Fundamental Rights". There appears to be no justification for making any destinction between the Fundamental Rights of Article 10 and other Fundamental Rights included in that Chapter. No doubt the right to liberty and personal freedom is sacrosanct. But other Fundamental Rights are of no less importance, such as that contained in Article 11 (slavery and forced labour), Article 12 (retrospective punishment) Article 13 (double punishment), Article 14 (dignity of man) etc. The Supreme U Court validated two instruments on the ground of State necessity, namely the Proclamation of Martial Law and the Laws (Continuance in Force Order, 1977 as offspring of necessity, although in the case of the latter, I reserved the power of judicial review of superior Courts notwithstanding anything to the contrary contained therein, to test the validity of any action taken thereunder. It seems to me rather artificial and academic to argue that the Order could not validly suspend Fundamental rights when the Constitution itself has been put into abeyance, the Parliament dissolved an the Governments and Offices have been superseded on the ground of Stat necessity. Therefore, there is no force in this submission of Mr. Pirzada.

8. The third submission of Mr. Pirzada was that even assuming Fundamental Rights have been validly suspended, the (1973) Constitution still remains the supreme law and that Martial Law Order 12 is not 'law' within the meaning of Article 4 of the Constitution as it contravenes Articles 8(2) and 10 of the Constitution, and the orders of detention passed thereunder are not "in accordance with law" and are violative of Article 4. Article 4 provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and or every other person for the time being within Pakistan and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law". Article 9 also provides that "no person shall be deprived of life or liberty save in accordance with law". Mr. Pirzada relied on the observations of their Lordships of the Supreme Court in Manzoor Elahi v. Federation of Pakistan (P L D 1975 S C 66). The observations appear to support Mr. Pirzada's submission. Therein, it was observed that the Fundamental Rights provided in Articles 9 and 10 of the Constitution had not been suspended during the Proclamation of Emergency, nor could they be suspended. Therefore, these rights continued to exist although there was a temporary bar to their enforcement imposed under Article 233(2) during the period of the Emergency (however, in that case, the bar did not extend to enforcement of Article 9). The restriction imposed under Article 233(1) on the power of the State to make any law or take any executive action in violation of the rights of Articles 9 and 10 existed with the result that any such law made or any executive action taken thereunder, would be not "in accordance with law" and would violate Article 4 which requires that no action detrimental to liberty of any person shall be taken except "in accordance with law". This view of the law, however, was not unanimous and, Muhammad Yaqub Ali, J., expressed the hope in the Review judgment of that case reported as Federa tion of Pakistan and others v. Ch. Manzoor Elahi (P L D 1976 S C 430) that the controversy would be resolved in some future case. It was also observed therein that the term 'law' was not to be confined to enacted statute law, but included the accepted legal and juridical norms and procedures laid down by the superior Courts from time to time.

9. Manzoor Elahi's case, however, is distinguishable for more than one reason. The Fundamental Rights provided in Articles 9 and 10 have now been validly suspended, as held by the Supreme Court in Begum Nusrat Bhutto's case. They being non‑existent, the restrictions with regard to them imposed under Article 233(1), are not applicable and the observations of the Supreme Court in Manzoor Elahi's case relied on by Mr. Pirzada, would not be attracted. Again, the wide meaning given to the word 'law' appearing in Articles 4 and 9, has since been diluted in Brig. (Retd) F. B. Ali and another v. The State (P L D 1975 S C 506) and the United Sugar Milli Limited v. Federation (P L D 1977 S C 397). In the former case, according to the majority view, 'law' means positive law, that is to say, the formal pronouncement of the will of a competent law giver. Muhammad Yayub Ali, J., in F. B. Ali's case agreed and distinguished his own opinion expressed by him earlier in Manzoor Elahi's case and observed that they (the cases) were "confined to their own facts and do not enunciate that Courts can strike down a law made competently by a Legislature on the ground of reason or morality". In the latter case of Federation of Pakistan v. United Sugar Mills Ltd., this restricted meaning of the term 'law' was unanimously upheld. Muhammad Gul, J., who delivered the unamious judgment, observed at page 405 as follows : ----

"In support of this part of argument, learned counsel relied on certain observations made in the case of Chaudhry Manzoor Elahi v. Punjab Government P L D 1975 S C 66 according to which the expression `law' as used in Article 2 and Fundamental Right 1 in Chapter 1, Part II of the 1962 Constitution was not necessarily confined to statute law or positive law but also covered 'judicial principles laid down from time to time by the superior Courts and judicial norms obtaining in Pakistan'. But this wider connotation of the word `law' was rejected later in the majority decision in F. B. Ali v. The State P L D 1975 S C 506 wherein according to the view of the majority the expression 'law' in Article 4 of the present Constitution, which is in pari materia with Article 2 of the 1962 Constitution means only `positive law'. The majority in that case relied on the dictum in case of Asma Jilani P L D 1972 S C 139 wherein after an elaborate discussion Hamoodur Rehman, C J., reached the conclusion that connotation of the word 'law' is restricted to positive law that is to say, formal pronouncement of the will of a competent law‑giver and did not include what were mere legal precepts or theories."

The learned Attorney‑General further referred to Mir Abdul Bagl Baluch v. Government of Pakistan and others (PLD1968SC313) which held that so long as enforcement of the Fundamental Rights remained suspended, the validity of the Defence of Pakistan Ordinance could not be challenged as being inconsistent therewith for, "to declare the Ordinance invalid would be tantamount to enforcing a Fundamental Right" and, therefore, what cannot be done directly cannot be allowed to be done indirectly." There is n doubt that Martial Law Order 12 is a law passed by a competent Legislature even though it is by an individual person. For these reasons, the third submission of Mr. Pirzada based on Article 4 cannot be accepted. However, I have had some anxiety, because it would follow from this view that there would be no restriction upon the Chief Military Authority to make any despotic or tyranical law which may deprive persons of their lives and liberty. But I do not think that there would be such practical danger, because the power of judicial review of the superior Courts is in full force to strike down such laws on the touchstone of necessity.

10. The fourth submission of Mr. Pirzada was that Martial Law Order 12 as amended by Martial Law Order 55 was bad for lack of State necessity as the field has already been covered by another existing laws of preventive detention. It was urged that there was no necessity for making so drastic a law, which deprives persons of their cherished right of personal freedom by denying to them grounds of detention, personal hearing, review of detention order by a judicial Review Board, etc. The argument overlooks the fact that one of the objectives of Martial Law Order was to prevent persons "acting in any manner prejudicial to the purposes for which Martial Law has been proclaimed". No such subject- matter is covered by any existing detention law. Moreover, the Supreme Court in the case of Zulfiqar Ali Bhutto v. The State (P L D 1978 S C 40) gave a technical meaning to the word `necessity' as being "a term of art having certain constitutional and legal connotation as distinct from its ordinary dictionary meaning" It was therein observed that if it can be shown that the law reasonably falls within one or other of the categories enumerated in Begum Nusrat Bhutto's case, then it must be construed as being necessary and thus held valid under the law of necessity. I have no doubt that, Martial Law Order 12 falls within category (iii)(d) as "measure as would establish or lead to the establishment of the, declared objectives of the proclamation of Martial Law namely the restoration of law and order an normalcy in the country and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution". To hold otherwise would be to sit in appeal on the question of the real and factual necessity for this law and, as observed by one of us, (Abdul Hayee Kureshi, J.), in Ahudidad v. Dy. Martial Law Administrator, Zone `D', Baluchistan (P L D 1978 Quetta 177) it would be perilous for the Courts to embark upon an enquiry which by its very nature will be subjective. For this reason, I find no force in this submission of Mr. Pirzada.

11. Finally, on merits of the case of Mr. Pirzada argued that there was no sufficient material for passing the extension orders on 25th September and 20th December 1978 and that there was also no proper application of mind. I have examined the minute sheets relating to the orders passed on 27th June 25th September and 20th December 1978. The June orders were passed on the basis of certain statements made by the petitioners in Court on 13th/14th March 1978 during the hearing of Constitutional Petition No. 807/77. These detention orders were challenged in Constitutional Petition No. D‑625/78 but were upheld by a Division Bench comprising one of us (Fakhruddin G. Ebrahim, J.). It was argued that these same statements made as back as March 1978 could not form adequate material for passing two subsequent successive orders of 3 months each on 25th September and 20th December 1978 and Mr. Usman Ghani, learned Advocate. General candidly conceded that these orders were passed on the same material. However, learned Advocate‑General's argument was that in respect of the orders of 20th December, there were some additional statements made in Court by Mr. Abdul Hafeez Pirzada during the hearing before us. The first alleged statement of Mr. Pirzada was that he said that if he had spoken at Mochi Gate, 1/10th of what he had spoken in Court in March 1978, the whole of Lahore would have burned. The second alleged statement is said to be that he remarked about the impotency of the present Government to deal effectively with hostile utterances of "Jan Singh Vajpayee" on Kashmir The minute sheet after narrating these statements expressed the view that they showed no change of heart of the petitioner. In the case of Mr. Mumtaz Ali Bhutto, the only additional circumstance was that he bad escaped from custody' of the guards on 10th July 1978 while returning from the High Court to the Central Prison, Karachi. My Lord, the Chief Justice has, with respect, convincingly dealt with these so‑called additional circumstances as factually doubtful and that they did not form a valid basis for the conclusion that there was no change of heart on the part of the detenu Abdul Hafeez Pirzada and in the case of Mr. Mumtaz Ali Bhutto, the alleged escape was totally irrelevant and ha x no nexus with the purposes for which the detention could be ordered under Martial Law Order 12. I am in respectful agreement with the opinion expressed by my Lord, the Chief Justice that the detaining authority had no applied its mind before passing the extension orders in question and the they appear to have been passed as a matter of routine.

12. For the foregoing reasons, I am of the opinion that the impugned orders passed against the petitioners were without lawful authority and invalid and must be set aside.

13. I would accordingly allow this petition and order that the petitioners should be released unless wanted in some other case.

FAKHRUDDIN G. EBRAHIM, J .‑Preventive detention is negation of that most cherished human right, the right to personal freedom. The law on the subject is said to be preventive in character but in effect harshly punitive for it permits detention without trial without adjudication of guilt at the instance of the Executive. That this executive power is capable of abuse is borne out by a number of decisions of the superior Courts in Pakistan. It often becomes the vehicle for suppressing dissent and has come to be regarded as an occupational hazard for the politicians in opposition. This unjust law continues to remain on the statute book but not without protest froth the remaining two organs of the State, the Legislature and the Judiciary. . The former has sought to reduce its rigours by what are called constitutional safeguards and the later having found the way to question detention on the ground of reasonableness., tampered it with justice.

2. The petitioners are, except for a period of 49 days, continuously under preventive detention since 5th of July 1977 under orders made from time to time under Martial Law Order No. 12. The operative order on the date hereof is dated 20‑12‑1978 and though it reads that the purpose of detaining the petitioners is to prevent them from acting in any manner prejudicial to, among other things, security of Pakistan, the material discloses that then detaining authority has made the impugned order to prevent the petitioners from acting in a manner prejudicial to the purpose for which Martial Law had been proclaimed and in the interest of efficient conduct of Martial Law and for the maintenance of peaceful conditions in the area. M. L. O. 12 was promulgated on 20th July, 1977 and was given retrospective effect from 5th day of July, 1977. Its paragraph 2 empowered the Chief Martial Law Administrator to detain indefinitely a person in prison for the purpose of preventing him from acting in any manner prejudicial to the purpose for which Martial Law had been proclaimed or to the security of Pakistan, the public safety or interest, the defence of Pakistan or any part thereof, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of Martial Law. Paragraph 3 of this Order states that it shall not be necessary to provide the grounds of detention to the person detained and under paragraph 4 the detenu was given liberty to submit a petition to the Chief Martial Law Administrator "praying for relief".

3. By Martial Law Order No. 27 dated 31st December, 1977, following proviso was added to paragraph 2 of M. L. O. 12 :‑---

"Provided that an order made under clause (a) shall not remain in force for a period exceeding three months unless before its expiration, the period is extended by the Chief Martial Law Administrator or, as the case may be, the Martial Law Administrator or a Deputy Martial Law Administrator holding the rank of Major‑General by a period not exceeding three months ; and a person shall not be detained under successive orders for a period exceeding twelve months in the aggregate.

Explanation.‑For purposes of this proviso, an order in force immediately before the commencement of Martial Law Order No. 27 shall be deemed to have come into force on such commencement."

4. M. L. O. 27 also added paragraph 4 (a) to M. L. O. 12 providing that a petition submitted by a detenu under paragraph 4 will be forwarded for examination, and report to a Committee, consisting of the Secretary, Ministry of Interior Government of Pakistan and an officer not below the rank of a Brigadier nominated by the Chief Martial Law Administrator, if .the petition was submitted to a M. L. A., and if the petition had been submitted to a M. L. A., or to a D. M. L. A., to a Committee consisting of Home Secretary of the Province and an Officer of the Armed Forces of Pakistan not below the rank of a Colonel, nominated by the Martial Law Administrator and on receipt of the report of the Committee the C. M. L. A. or the M. L. A. as the case may be may make such orders as he may deem fit.

5. Before proceeding further a short argument on the interpretation of the newly‑added proviso and the explanation to paragraph 2 of M. L. O. 12 may be noticed. The controversy between the parties relates to the com mencing date for computing the aggregate of 12 months beyond which a person could not be detained under successive orders of detention made under M. L. O.

12. The contention of Mr. Usman Ghani Rashid, the learned Advocate‑General was that the aggregate period of one year of detention will commence from the date of the commencement of the Martial Law Order No. 27, which was sought to be inferred from the language of the explanation to the said proviso. The petitioners on the other hand contended that the explanation cannot detract from the content of the proviso and since the explanation was otherwise capable of being given effect to, it should not be so construed as to enlarge the maximum period of detention. It was urged that such construction should be preferred as is consistent with Article 10 of the Constitution which also limits the maximum detention to one year. Now this much is clear that the proviso and the explanation read together are capable of more than one meaning, and we will, therefore, be obliged to prefer that which is not restrictive of personal freedom and moreso when it also accords with the Constitution. If the explanation can reasonably be limited in its application to matters other than enlarging the detention for a period exceeding one year, we will so limit it in its application. The purpose of the explanation appears to be to limit the life of the existing orders of detention, in which the period of detention was not specified, to three months commencing from 31st December, 1977 and even if the words are also capable of the extended meaning so as to mean that the commencing date for computing the aggregate period of one year was 31‑12‑1977, such extended meaning, we shall, for reasons aforesaid, be justified in not giving effect to. I am further inclined to think that such an extended meaning was not even in the contemplation of the law‑giver, inas much as the petitioners claim to be the only two detenus in Pakistan who were on 15‑9‑1978 completing a year's detention and their detention could have been continued under the extended meaning but the law‑giver did not think so for he, on 15th September, 1978, amended M. L. O. 12 by M. L. O. 55, the effect of which is that a person may be detained under successive orders of detention for a period not exceeding two years. This result was achieved by substituting "two years" for the words "twelve months" in the proviso to paragraph 2 of M. L. O. 12.

6. Mr. Abdul Hafeez Pirzada in support of this petition raised several legal contentions which may be summarised as follows :‑

(a) That M. L. O. 12 was ab inttio invalid and of no legal effect as it contravenes Article 4 of the Constitution.

"". (b) That irrespective of suspension of the right to enforce Fundamental Rights, M. L. O. 12 being violative of Article 10 of the Constitution is of no legal effect.

(c) That the suspension of Fundamental Right 10 can no longer stand the test of necessity laid down by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case and M. L. O. 12 being inconsistent with Fundamental Right 10, is to that extent void and of no legal effect.

7. Coming to the first contention Mr. Abdul Hafeez Pirzada, pointed out that Article 4 of the Constitution, which was of fundamental importance, has neither been suspended nor was it is capable of being suspended, and since every citizen wherever be may he and every other person for the time being within Pakistan has under this Article the inalienable right to be governed by law and law alone and in particular no action deterimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and as M. L. O. 12 cannot be exuviated with law, contemplated by Article 4, the petitioners purported detention under it is without lawful authority and of no effect. Mr. Abdul Hafeez Pirzada referred to various decisions of the Supreme Court in which the word "law" as appearing in Article 4 or in equivalent Articles in the 1962 and 1972 Interim Constitutions was defined and argued that law in this Article was not limited to law enacted by a competent Legislature, for a law which violates accepted legal and judicial norms affecting the rights of the citizens, then to that extent it would not be a valid law. It was argued that M. L. O. 12 inasmuch as it deprives the detenu of his right to be informed of grounds of detention violates the basic judicial principle that nobody can be condemned unheard, is not law within the meaning of Article 4, M. L. O. 12 was also challenged on the ground that it empowers the executive to detain a person indefinitely without providing any remedy. The argument though attractive is clearly not available to the petitioners for the Supreme Court has in its latest pronouncement on the subject of law in Article 4 Federation of Pakistan v. United Sugar Mill Ltd. (P L D 1977 S C 397) held as follows :‑

"In support of this part of argument learned counsel relied on certain observations made in the case of Chaudhry Manzoor Ilahi v. Punjab Government P L D 1975 S C 66, according to which, the expression "Law' as used in Article 2 and Fundamental Right 1 in Chapter 1, Part II of the 1962 Constitution was not necessarily confined to statute law or positive law but also covered 'judicial principles laid down from time to time by the superior Courts and judicial norms obtaining in Pakistan'. But this wider connotation of the word 'law' was rejected later in the majority decision in F. B. Ali v. The State P L D 1975 S C 506, wherein according to the view of the majority the expression 'law' in Article 4 of the present Constitution which is in part materia with Article 2 of the 1962 Constitution, means only 'positive law'. The majority in that case relied on the dictum in the case of Asms Jilani wherein after an elaborate discussion Hamoodur Rehman, C. J. reached the conclusion that connotation of the word 'law' is restricted to positive law that is to say, a formal pronouncement of the will of a competent law‑giver and did not include what were mere legal precepts or theories."

The aforesaid decision was sought to be distinguished on the ground that the Supreme Court was concerned with a law made by a Parliament while we are presently concerned with a law enacted by an individual. To my mind once the law maker's competency is established, the distinction sought to be drawn is without any difference, for such a law will have to be given effect to notwithstanding that it may run counter to judicial norms and principles in view of the law laid down in the United Sugar Mill's case.

8. In support of the second contention the petitioners firstly referred to the following important safeguards against preventive detention incorporated in Article 10 of the Constitution :

(i) That the power of the Executive to detain a person under a preventive law is limited for three months only.

(ii) The detention in excess of three months must be approved by a high powered quasi judicial Review Board.

(iii) Right to personal hearing before the Review Board.

(iv) That the Board shall have the authority to determine the places of detention of the person detained and fix a reasonable subsistence allowance for his family.

9. That the person detained shall be furnished within 15 days of his detention the grounds on which the order of detention has been made and shall afford him the earliest opportunity of making a representation against the order.

(vi) Detention not to exceed one year in aggregate in any given 24 months (except in certain specified cases, with which we are not concerned in the present petition).

9. Mr. Abdul Hafiz Pirzada next referred to Article 8 of the Constitution which provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the Fundamental Rights shall to the extent of such inconsistency be void. Clause (2) of this Article which ' takes care of future legislation enjoins that the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall to the extent of such contravention be void. Clause (5) of this article further provides that the Fundamental Rights conferred by Chapter 1 shall not be suspended except as expressly provided by the Constitution. It was argued that since the State cannot make laws violative of Article 10 and admittedly M. L. O. 12 runs counter to the safeguards contained in Article 10, it is to that extent void and the High Court shall not, in the exercise of its jurisdiction under Article 199 of the Constitution give effect to a void law irrespective of the fact that the right to enforce Fundamental Right contained in Article 10 is suspended.

10. The proposition advanced finds support in the judgments delivered by my Lords Mr. Justice Yakub Ali and Mr. Justice Salahuddin (as they were then) to the case of Manzoor Illahi. The reasoning of my Lords was followed by a Division Bench of the Lahore High Court in the case of Province of Punjab v. Galzar Hasan (P L D 1978 Lah. 1298). I am in respectful agreement with the reasoning of my Lords in the aforesaid decision, that even in an emergency, though right to enforce Fundamental Rights may be suspended, by virtue of Article 8 of the Constitution and the inalienable right of every citizen under Article 4 to be governed by law and law alone the Courts will not give effect to a law, which is void on account of its repugnancy with Article 10 of the Constitution.

11. Mr. Sharifuddin Pirzada, the learned Attorney‑General challenged both the correctness as well as application of the aforesaid principle to the plat case. According to him to permit the entry of Article 10 in the arena of controversy in this manner would be to do indirectly what cannot be done directly and to make redundant the bar to the enforceability of Article 10. As I look at it, it is our solemn duty to enforce the Constitution. Under its Article 5, the obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. If the Constitution in no uncertain terms says that the State shall not make any law which takes away or abridges Fundamental Rights and any law made in contravention thereof shall to the extent of such contravention be void, the Courts will. irrespective of other indirect consequences, be obliged under its Constitutional jurisdiction under Article 199 not to give effect to such a void law, for under Article 4 it is an alienable right of every citizen not to be dealt with otherwise than in accordance with law, which would mean a validly enacted law.

12. The learned Attorney‑General pointed out that the above contention is promised on the assumption that the right to move for the enforcement of Fundamental Rights has been suspended while under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977) the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all proceedings pending in any Court, in so far as they are for the enforcement of any of those Rights shall stand suspended, and that this clause is unexceptionable for firstly, it is part of an extra Constitutional legislation and, secondly, because the Supreme Court in Begum Nusrat Bhuto's case has clothed the said clause (3) of Article 2 with validity. There is no doubt that the Laws (Continuance in Force) Order, 1977 has been described at page 717 of the judgment as of an extra‑Consti tutional nature but the Court rejected the contention that it was a supra-Constitutional instrument overriding 1973 Constitution and binding on every one by virtue of its own force, for the reason that the power of the Court to test the validity of all actions of the Chief Martial Law Administrator on the touchstone of necessity remains notwithstanding its extra-- Constitutional nature. At page 719 my Lord the Chief Justice further observed that;

"A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the Proclamation. As however this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions and any action taken thereunder, in the light of the principles regulating the application of the law and doctrine of necessity, as already set out earlier."

There is, therefore, no substance in the argument that it is not open to us to test the validity of the provisions contained in the Laws (Continuance in Force) Order, 1977. The Supreme Court itself invalidated its more than one provision, for it did not answer affirmatively the test of necessity, and but for this, we would not be hearing this petition in which the M. L. O. 12 and the action taken thereunder is under challenge.

13. Coming to the contention that the Supreme Court has validated clause (3) of Article 2 of the Laws Continuance in Force) Order, 1977 the learned Attorney‑General relied on the following passage at page 721 of the judgment;

"As the present petition under clause (3) of Article 184 of the Constitu tion is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July, 1977 under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide."

With respect to the learned Attorney‑General the aforesaid paragraph should not be read in isolation. The petition before the Supreme Court was under clause (2) of Article 184 of the Constitution for enforcement of certain Fundamental Rights of the detenus and the conclusion was that as these rights were not enforceable petition must fail. The Court was not really concerned with the fine distinction between the suspension of Fundamental Rights and its enforcibility as in the proceeding paragraph the obser vation is :‑

"In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an Order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."

And "the final position" is summed up at page 712 in these words :‑

"That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution."

14. There is, therefore, substance in the argument of Mr. Abdul Hafeez Pirzada that not only the Supreme Court but the learned counsel appearing for the parties also were not really concerned with the distinction between the suspension of Fundamental Rights and its enforceability for both the expressions appear in the judgment in the same context, as if they were inter changeable and understandably so, for in either event the result would be the same, namely, that the petition for enforcement of Fundamental Right 10 filed by Begum Nusrat Bhutto was not maintainable.

Before parting with the discussion on the present subject I may refer to the decisions on which the learned Attorney‑General relied upon in support of the view that the Supreme Court has in Begum Nusrat Bhutto's case validated the suspension of the Fundamental Rights as distinct from its enforceability. The first case referred to was the case of Syed Alamdar Hussain Shah v. Abdul Bashir Qureshi (P L D 1978 S C 121). The observation of the Supreme Court to which our attention was invited reads;

"This Court in the case of Begum Nustat Bhutto v. Chief of the Army Staff, found the above i e. clause (3) of Article 2 of the Laws (Con tinuance in Force) Order, 1977 to be good law and held that the Fundamental Rights stood suspended by virtue thereof. No proceedings for their enforcement are, therefore, presently competent.

And ......................................................... , .............. that Article 13 of the Constitution was not operative."

The next case relied upon was a Full Bench decision of the Baluchistan High Court, Khudiadad v. Deputy Martial Law Administrator Zone "D" (P L D 1978 Quetta 171) in which the establishment of the Military Courts was challenged on the ground, inter alia, of discrimination, which was repelled as the Fundamental Rights were suspended.

The third case referred to was a Division Bench decision of this Court in Nazir Ahmad v. Lt: Col. Abbas All Khan (3) in which the argument that Fundamental Right 12 which provides for protection against retrospective punishment remained in the field and was not affected by the suspension of Fundamental Rights, was rejected on the ground that the Fundamental Rights remained suspended.

In none of the aforesaid decisions there was any occasion for the Courts to define a distinction between the suspension of Fundamental Rights and suspension of right to enforce Fundamental Rights. The Courts were also not called upon to test the validity of clause (P L D 1978 Kar. 777) of Article 2 of the Laws (Continuance in Force) Order, 1977 on the ground that it departed from the Constitution and what was its effect. The aforesaid decisions are, therefore, of no avail to the respondents.

The result, therefore, is that it is open to the petitioners to challenge the validity of the Laws (Continuance in Force) Order, 1977 on the ground that any of its provisions do not answer the test of necessity.

15. In Begum Nusrat Bhutto's case the Supreme Court has at several places laid emphasis that the Laws (Continuance in Force) Order, 1977 does not seek to destroy the old Order but merely to hold certain parts thereof in abeyance or subjected to certain limitations on the ground of State necessity; that the Constitution of 1973 was not being abrogated but only certain parts of which were being held in abeyance, namely, parts dealing with the Federal and the Provincial Executives and Legislatures, that the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof may have been held to be in abeyance and that the President of Pakistan and the superior Courts continue to function under the Constitution. It may further be noticed that the Supreme Court justified the suspension of right to enforce Fundamental Rights on the ground that;

"It was clearly an order which could have been made under the 1973 Constitution."

16. Clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977 which provides that Fundamental Rights conferred by Chapter I of Part II of the Constitution and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended, is in so far as it purports to suspend Article 10 of the Constitution is wholly unwarranted by the Constitution. Clause (5) of Article 8 of the Constitu tion provides that Fundamental Rights shall not be suspended except expressly provided by the Constitution. Under clause (1) of Article 233 of the Constitu tion the State's power to legislate or to take executive action is not restricted by reason of Fundamental Rights contained in Articles 15, 16, 17, 18, 19 and 24 of the Constitution. In so far as other Fundamental Rights are concerned the executive may under clause (l) of this Article by a Presidential order declare that right to move any Court for its enforcement shall remain suspended. Therefore, even in an Emergency the Fundamental Rights, other than these contained in Articles 15, 16, 17, 18, 19 and 24 of the Constitution, cannot be suspended. It will, therefore, follow that in so far as the Laws (Continuance in Force) Order, 1977 purports to suspend Fundamental Right contained in Article 10 of the Constitution being violative of the Constitution) will have to be justified by State necessity. One view could be that there could be no necessity for an action which the Constitution does not countenance even in the case of a grave Emergency in which the security of Pakistan or any part thereof is threatened by war or external aggression. In the present case we are concerned with that most Fundamental Human Right, the Right to Personal Freedom without which there can be no Human dignity. The yardstick with which we will test the necessity will have, therefore, to be rigidly applied and moreso when this right is reflected in the Charter of Human Right adopted by the United Nations Organisation which has been approved by Pakistan. Moreover, Mr. Salahuddin, Editor Daily Jasarat in his acclaimed book "Fundamental Rights" at page 268 observes as follows on the subject of Preventive Detention and Islamic Injunc tions:

"In a Islamic State no citizen can be detained or imprisoned without proving in an open Court the guilt of any offence.

It is not permissible in Islam to lodge people in Jail on the basis of doubts and suspicions without proper Court proceedings. Presently, under the title of preventive detention, in the name of security of State, whatever has taken place Islam has absolutely no room for the same. The Qur'an has clearly ordained that the liberty which the Almighty God has bestowed on all His Human beings cannot be usurped or taken away even by the Prophet much less any common Ruler."

Therefore, for more than one reason it is difficult to justify denial of Constitutional safeguards against preventive detention on the grounds of necessity.

17. Coming to the third contention, which is really an alternative contention on assumption that Presidential Order No. 1 of 1977 justifiably suspended the Fundamental Rights in July, 1977, the argument was that continued deprivation of Fundamental Right No. 10 which has the effect of continuing a harsh and unbending law like M. L. O. 12, made more oppressive by M. L. O. 55, does not answer the test of necessity which must of necessity be a continuing necessity for one of the recognised principles of necessity approved by the Supreme Court in Begum Nusrat Bhutto's case is that every measure must be proportionate to necessity. The importance of right to personal freedom cannot be underestimated. It was argued that M. L. O. 12 was brought into existence as a legislation of temporary duration in the context of a very early implementation of a promise of an early General Election which will restore to the country its democratic institutions. More than 17 months have passed since the Military take over of the 5th of July 1977 and there are no immediate prospects of an early election. Without admitting that delay may have its justification, Mr. Abdul Hafiz Pirzada went on to argue that this justification, is not good enough for continued deprivation of the Constitutional safeguards against arrest and detention, The petitioners' present detention is by virtue of M. L. O. 55 which empowers the executive to detain a person for an aggregate period of two years, and their continued detention since 15‑9‑1973, when they completed a year's detention, will be valid only if M. L. O. 55 answers the test of necessity. It is, therefore, not necessary, in so far as the present contention is concerned, to examine whether all and several safeguards against the preventive detention contained in Article 10 are available. M. L. O. 55 militates at least one of the safeguards contained in Article 10, namely, that no person shall be detained in excess of one year in any 24 months, for reasons other than those specified in the proviso to clause (7) of Article 10 of the Constitution, and the limited question is whether the measure enacted as late as November 1978, i.e. 13 months after the Military take over can answer affirmatively the test of necessity. The learned Attorney‑General argued that M. L. O. 55 is a justified measure warranted by the law and order situation prevailing in the country but he has neither placed any material in its support nor has he shown that the other preventive laws in the armory of Executive are insufficient, to meet the situation, except of course that the existing laws unlike M. L. O. 12, do not provide for deten tion to prevent a person from acting in a manner prejudicial to the purpose for which the Martial Law had been proclaimed but it is not the case of the detaining authority or at least there is nothing in the material relied upon by the detaining authority, that the petitioners have been acting contrary to the avowed objective for the imposition of Martial Law which is to hold-General Elections so that a freely elected Government might once more be ins talled in office, and in so far as the other reasons for detention are concerned, they are covered by the existing laws. I may recall here that the Supreme Court found justification for suspension of Fundamental Rights in these words :‑

"The question, therefore, is whether the provision embodied in this behalf in clause (3) of Article 2 of the Laws (Continuance in Force) Order is valid in the light of the principles governing the application of the law of necessity. One of the conditions stated in this behalf is that the Chief Martial Law Administrator is entitled to perform all acts and take such legislative measures which are in accordance with, or could have been made under the 1973 Constitution. Now, the Constitution does not permit the suspension of the right to enforce Fundamental Rights in case of an emergency of the nature contem plated in Article 232 thereof. Clause (1) of this Article says that 'if the President is satisfied that a grave Emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression or internal disturbances beyond the power of a Provincial Government to control, he may issue 'a proclamation of Emergency'. If, therefore, it is found that the situation of the kind contemplated by this provision of the Constitution exists in Pakistan, then the Chief Martial Law Administrator would be entitled to make an order of the kind which could be made under clause (2) of Article 233 of the Constitution suspending the right to enforce Fundamental Rights."

It must, therefore, follow that if the conditions have materially changed or to put it more positively the conditions are not so grave that the very existence of the country is threatened or there is any likelihood of chaos or blood shed, there will be no justification for M. L. O.

55. Indications in the country are that time has softened the events. A civilian Government ha been installed at the Centre and there is no impediment to the installation of the politicians in power in the Provinces. According‑ to a Press Report B appearing in daily Dawn of 31st October, 1978 the Federal Cabinet B after reviewing the law and order situation found it satisfactory. Then where B is the necessity to deny to the petitioners at least that Constitutional safe guard which prohibits detention for a period exceeding one year in aggregate ?

18. The learned Attorney‑General argued that while it is open to the Court to test the validity of all the actions of the Chief Martial Law Administrator on the touchstone of necessity, what the law contemplates is legal necessity and not factual necessity. It was, therefore, argued that once it is shown that the impugned measures falls within the category of permissible actions, there is no room for any further inquiry by the Court, for it will have answered affirmatively the test of necessity. Reliance was placed on the following passage in the case of Mr. Zulfiqar Ali Bhutto v. State (P L D 1978 S C 40)

"Before dealing with the submissions on merits, it seems necessary to observe that there is apparently a misconception in the mind of the learned counsel as to the true implications of the decision of this Court in Begum Nusrat Bhutto's case, in so far as it deals with the powers of the Chief Martial Law Administrator under the doctrine of necessity. On page 716 of the printed report this Court has stated as under:‑

'That the Chief Martial Law Administrator having validly assumed power by means of an extra‑Constitutional step in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistent ly recognised by judicial authorities as falling within the scope of the law of necessity, namely:

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it ;

(b) All acts which tend to advance or promote the good of the people ;

(c) All acts required to be done for the ordinary orderly running of the state, and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normally in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution.

"These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra‑Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new regime or Administration must be permitted, in the public interest, not only to run the day‑to‑day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories then it must be con‑ C strudel as being necessary and thus held valid under the law of necessity. The word 'necessity' has, therefore, come to be used in this content as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning.

The aforesaid passage as was pointed out by Mr. Abdul Hafeez Pirzada and so also Mr. Muhammad Ali Saeed, the learned amices curiae cannot be read in isolation. Even the Supreme Court does not appear to have followed the principle that once there is nexus between the impugned measure and the permissible actions, there is no need for any further inquiry. In the above case the main question before the Supreme Court was whether in terms of President's (Post Proclamation) Order No. 4 of 1977, read with the relevant provisions of the Constitution, it was permissible for one person to combine the functions and duties of two constitutional offices, namely, the Acting Chief Justice of the High Court and the Chief Election Commissioner. The conclusion reached was that the appointment of Mr. Justice Mushtak Hussain as Chief Election Commissioner was in the nature of a temporary and ad hoc appointment in a situation not covered or contemplated by the Constitution of 1973 and that it was merely intended for the limited purpose of holding the forthcoming General Elections and therefore, it was not an appointment to which the prohibition contained in Article 216 of the Constitution was attracted. Every contention raised on behalf of the petitioner in the above case in relation to subject of elections was sought to be justified first by reference to the Constitution and whenever there was departure from the Constitution on the ground that the Orders clearly fell within the objectives for which Martial Law was imposed to the country on the 5th of July, 1977, to ensure the restoration of democratic institutions under the Constitution. In other words the Supreme Court was not satisfied in concluding the controversy by a statement that there was nexus between the Presidential Orders and the permissible action, which sufficiently answered the test of necessity. It may also be noticed that following the passage quoted above the Supreme Court reiterated the extent of the High Court's jurisdiction under Article 199 in the case of Mir Abdul Baqi Baloch v. The Government of Pakistan (P L D 1968 S C 313) and in the case of Abul A'la Maudoodl v. The Government of West Pakistan (P L D 1964 S C 673) and observed that;-----

"It means to us, therefore that judging whether an action taken by the President or the Chief Martial Law Administrator is valid tinder the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised' by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution.

In Begum Nusrar Bhutto's case the Supreme Court approved the following summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court as embodying the true essence of the doctrine and providing useful and practical guidelines for its application;

"(a) An imperative and inevitable necessity or exceptional circumstances ;

(b) No other remedy to apply;

(c) The measure taken must be proportionate to the necessity ; and

(d) It must be of a temporary character limited to the duration of the exceptional circumstances."

The Supreme Court also approved the following remarks made by De Smith in his book "Constitutional and Administrative Law".

"In some situations where constitutional action has been taken h, person wielding effective political power, it is open to a Judge to steel a middle course. He may find it possible to ask that the framework of the pre‑existing order survives but the deviation from these norms can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law; there is a reference of necessity, albeit of uncertain scope, in criminal law and in constitutional law, the application of s Martial Law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supercession of the Legal Order ; it is essentially a transient phenomenon."

To my mind the aforesaid prerequisites would become meaningless, if our jurisdiction was merely limited to finding a nexus between the impugned measure and the permissible action. As was pointed out by Mr. Mohammad Ali Saeed if the argument of the learned Attorney‑General is accepted an amendment made to the Constitution by the C. M. L. A.'s permissible act, will have to be automatically accepted as necessary and the Court will have no jurisdiction to examine its justification which is surely not the law laid down by the Supreme Court, for it will make redundant the test of necessity laid down in Begum Nusrat Bhutto's case.

19. Finally the learned Attorney‑General invited our attention to three cases in which the High Courts have applied the test of necessity, which if followed in the present case will, it was said, have the effect of validating M. L. O. 55 on the touchstone of necessity. It may at once be stated that in none of these cases the Court was concerned with preventive detention in violation of Article 10 of the Constitution. In the Quetta Full Bench case P L D 1978 Quetta 171 and in the case of Bostan Ali (P L D 1973 Kar. 736) decided by this Court, the test of necessity was applied to Martial Law Orders and Martial Law Regu lations establishing Military Courts and convictions by such Courts, where the considerations for justifying the measures may as well be different. Besides the measure impugned therein may reasonably be regarded as proportionate to the prevailing situation. In the third case of Hijacker Nazir Ahmed (P L D 1978 Kar. 777) this Court validated M. L. R. 29 providing for retrospective death penalty on the ground of necessity, by reference to the International Conventions, namely, the Convention for the Suppression of Unlawful Seizure of Aircraft (called The Hague Convention and the Convention for the suppression of Unlawful Acts against the safety of Civil Aviation (called the Montreal Convention) to which convention Pakistan is a party.

The aforesaid cases are, therefore distinguishable.

20. The result, therefore, is that M. L. O. 12 being violative of Article 10 of the Constitution is to the extent void and in the alternative M. L. O. 55 Q in so far as it permits detention in excess of one year aggregate for reasons other than those specified in the proviso to clause (7) of Article 10 of the Constitution, has not been shown to answer affirmatively the test of necessity g laid down by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case and is, therefore, to that extent of no legal effect and in either event the, b petitioners' continued detention is without lawful authority. The petitioners will, therefore be forthwith released from custody unless they are required to be detained in any other case. The petitioners will also be entitled to costs from respondents other than respondent No. 4 against whom the petitioners disclaimed any relief.

Z. A. CHANNA, J. ‑I have had the advantage of reading the judgments proposed to be delivered by my Lord the Chief Justice and my learned brethren, Abdul Hayee Kureshi, I. Mahmud and Fakhruddin G. Ebrahim, JJ. While I agree that this Constitutional Petition be allowed, I would like to state briefly my own views on certain aspects of the case which were urged before us.

2. The validity of Martial Law Order No. 12, to which I shall refer as M. L. O. 12, has been challenged by the petitioners on the four main grounds :‑

(a) That its provisions are violative of the rights enshrined in and the safeguards against inroads in personal liberty provided in Article 10 of the Constitution, and therefore, void under Article 8 of the Consti tution to the extent of such inconsistency ;

(b) That even if the Fundamental Rights have been validly suspended by clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, the provisions of M. L. O. 12 which are inconsistent with Article 10 of the Constitution would still be invalid by reason of Article 4 of the Constitution, as the provisions contained in Article 10 are in the nature of a Statute law though enshrined in the Constitution ;

(c) That M. L. O. 12 cannot survive the touchstone of necessity ;

(d) That the field of preventive dentention being already fully occupied by the various existing laws, both Central and Provincial, providing for detention, there was no room for the promulgation of M. L. O. 12.

3. I would take the above grounds in the reverse order in which they have been stated above. It was contended by petitioner Abdul Hafeez Pirzada, who by profession is an advocate, and argued the petition on his own behalf and on behalf petitioner Mumtaz Ali Bhutto, that the field of preventive detention was already fully occupied by such detailed detention laws as the Security of Pakistan Act, 1960, and the West Pakistan Maintenance of Public Order Ordinance, 1960. Although the provisions of M. L. O. 12 do overlap with the existing detention laws in respect of detention for the purposes of security of Pakistan, the public safety or interest, the defence of Pakistan and the maintenance of peaceful conditions in Pakistan. but the M. L. O. specifies additional grounds on which detention thereunder is authorised, namely, for the purposes of prevention of acts prejudicial to the purposes for which Martial Law has been proclaimed or the efficient conduct of Martial Law. These grounds are not contained in any of the existing laws. Moreover, the existing laws of detention do not, unlike, M. L. O. 12, specifically provide for imposition of restrictions in respect of activities in relation to the dissemination of news or 'propagation of opinions. These latter provisions appear to have been borrowed from the Defence of Pakistan Rules which have ceased to be in force on the lifting of the Emergency under Article ;,32 of the Constitution with effect from the 15th of September. 1977. Additionally, the authorities empowered to pass orders under M. L. O. 12 are different from those empowered to pass orders of detention under the existing detention laws. It cannot thus be said that M. L. O. 12 is a legislation in an already fully occupied field. Finally, it may be pointed out that the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of the Army Staff ( P L D 1977 S C 657 ). has laid down the categories of the various types of permissible actions which could be taken by the Chief Martial Law Adminis trator by reason of having validly assumed powers by means of extra -constitutiona! step in the interest of the State and for the welfare of the people. These categories include "all such measures as would establish or lead to the establishment of the. declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections . . ". The Supreme Court has further laid down that the permissible acts or any of them may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders, as the occasion may require. I am accordingly of the view that the contention of the petitioners, based on the principle of occupied field, is without substance.

4. It was contended by petitioner Abdul Hafeez Pirzada that M. L. O. 12 is a harsh piece of legislation; providing. as it does for preventive detention on a number of grounds, some of which are vague and ill‑defined, and that the necessity in the country which impelled, the Chief of the Army Staff to assume power and proclaim Martial Law in the country did not require or permit the promulgation of such a harsh law. He further argued that in any case, since the conditions in the country had almost completely settled, there was no necessity for any such law. The categories of the various types of permissible actions entitled to be performed by the Chief Martial Law Administrator on the doctrine of necessity have been detailed by the Supreme Court in the case of Begum Nusrat Bhutto, referred to above. These categories not only include all acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, but also all such measures as establish or lead to the attainment of the purposes of Martial Law, including restoration of law and order. It may be pointed out that under the 197:1 Constitution it is permissible for the State to enact legislation providing for preventive detention. Of course such .legislation has to be within the limits of the Constitutional constraints, specially those contained in, Articles 4, 9 and 10. However, the Constitution specifically empowers both the Federal as well as the Provincial Legislature to enact laws providing for .preventive detention and only apportions acid specifies the different fields in respect of which the Central and the Provincial Legislatures may enact such laws. The power of the Chief Martial Law Administrator thus to enact M. L. O. 12 cannot be disputed. Even if the argument of petitioner Abdul Hafeez Pirzada be accepted in its entirety the 1 the conditions in the country have returned to near normalcy, even then t the C. M. L. A. cannot be denied the powers available under the Constitution for enactment of laws providing for preventive detention. Such powers, is my humble opinion, must be available to him until a lawful Government is constituted under the 1973 Constitution.

5. The next argument of petitioner Abdul Hafeez Pirzada and one which'6as found favour with my learned brother, Abdul Hayee Kureshi, J., was that Article 10 of the 1973 Constitution is strictly speaking not a Fundamental Right at all but is in the nature of a Statute Law, though incorporated in the Constitution for the purposes of giving it sanctity and immunity against sub‑Constitutional legislation. and therefore, even if it be considered that the Fundamental Rights have been validly suspended, this would not affect the operation of Article 10 and any action taken in violation of its provisions would be contrary to the law of the Constitution and therefore unlawful for the purposes of Article 4, and any law which is inconsistent with the provisions of the said Article 10 would also, by reason of its conflict with the higher Constitutional law, be invalid and consequently cannot be deemed to, be a law for the purposes of Article 4.

The right to liberty of person is one of the most precious rights of the citizens. . It is on this account that our, Constitution has made detailed provisions in this behalf. Most rights are not absolute or wholly inviolable, to the sense that they can be enjoyed under all circumstances without any constraint or limitation whatsoever. Even the highest right, namely the right to life, can be lost by an individual who commits a crime and is tried for that offence and is awarded death penalty in accordance with law. Similarly, the right to liberty could be lost by a person who, contrary to the law, acts against the public interest or invades the rights of other persons. The Constitution only spells out the extent and the scope of the right, the limitations thereon and the abridgement or interference therewith which is not permissible. The right to liberty, in our Constitution, is dealt with in two Articles, namely, Articles 9 and 10, while Article 9 confers security of person, both against unlawful arrest or deprivation of liberty as well as deprivation of life, Article 10 lays down in detail the safeguards against arrest and detention, as well as the rights to which persons are entitled who are arrested or detained. Article 9 of our Constitution corresponds to Fundamental Right No. 1 under the 1962 Constitution, Article 8(t) of the Draft Covenant on Civil and Political Right, 1952, Article 21 of the Indian Constitution, Article 40.4.1 of the Irish Constitution and the 5th and the 14th Amendment to the U. S. Constitution ; while Article 10 of our Constitu tion corresponds to Fundamental Right No. 2 under the 1962 constitution, Article 9 of the Covenant on Human Rights, 1950, Article 22 of the Indian Constitution and the 6th Amendment to the U. S. A. Constitution. It will thus be seen that somewhat similar provisions as are contained in these two Articles were not only contained in the previous Constitutions of this country but are also contained in the Constitutions of other democratic countries and in fact form part of the Charter of the Human Rights of the United Nations. The mere fact that certain provisions of Article 10, such as production of the arrested person before a Magistrate within 24 hours of his arrest, the right of an arrested person to be defended by a Legal Practitioner of his choice, the reference to a Review Board of Advisory Board of the case of a person ordered to be detained, or the furnishing of the grounds of detention to such a person are contained respectively in sections 167 and 340 of the Criminal Procedure Code and the laws providing for detention, does not detract from the fact that Article 10 confers and postulates an important Fundamental Right. The very fact that this Article is in the chapter entitled "Fundamental Rights", in my humble opinion, is enough to show that it is a Fundamental Right. As already pointed out, the Q corresponding provisions in the 1962 Constitution have been treated as the second right,, coming next after the right of security of person. Cornelius, J. as he then was), while dealing with the scope of corresponding Article 7 of the 1956 Constitution in the case of Abdul Aziz v. Province of West Pakistan ( P L D 1958 S C (Pak.) 499 ) observed as follows ;_

"When therefore, Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention, it is clearly laying down law in a field which is Included In the larger subject of the liberty of persons under the law. While constitutions are largely concerned with the laying down of principles which shall be followed in the making of laws, there is nothing to prevent a Constitution‑making body from making law of a special nature dealing with a special subject in the course of making a Constitution: It seems perfectly clear that in Article ' there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub-Constitutional Laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution." (The underlining* is mine).

6. The very same argument which has been urged before us, namely, that Article 10 is not in the nature of a Fundamental Right at all but in fact is in the nature of a sub‑Constitutional Law, was raised in the case of Zarina Gauhar v. Province of Sind (P L D 1976 Kar. 1257), with reference to the corresponding provisions of Article 9 of the 1972 Constitution. In support of this contention, reliance was placed on the decision of the Supreme Court in Abdul Aziz's case, referred to above. This contention, however, was repelled and Tufail Ali A. Rahman, C. J. thus expressed himself in regard thereto :‑

"If the Constitution chooses to provide for a matter which is normally enacted by ordinary non‑Constitutional Statutes there is nothing that I can see which would prevent the framers of the Constitution from doing so. The fact, however, that such provisions are of the kind which are ordinarily made by way of simple legislation or even are not of the character which it is necessary for a Constitution to specify would not lower the validity which they would have as a part of the Constitution. It would not be po3sible, for example, to say that if the Constitution were to provide that the death penalty is abolished then such a provision occurring in the Constitution could be repealed by ordinary legislation, I am, therefore, quite unable to hold that because the Supreme Court spoke of the provision in Article 9 as being of a sub‑Constitutional character or of a non‑organic character or as statute law that makes them any the less a part of the Constitu tion or of the provisions which confer Fundamental Rights."

7. There is a clear and unambiguous observation in the case of Manzoor Elahi v. Federation of Pakistan ( P L D 1975 S C 66 ) that safeguards as to arrest and detention, as detained in Article 10, constitute Fundamental Rights. In that case, Muhammad Yaqub Ali, J. (as he then was) has observed thus :‑

"Part Il, Chapter I of the Constitution contains in all twenty Fundamental Rights which provide for security of person, safeguard as to arrest and detention. prohibition of slavery, forced labour, etc. Most of these Rights reflect‑ the Charter of Human Rights adopted by the United Nations Organisation and to which all States are required to subscribe when admitted as members to the Organisation. These rights are by now also incorporated in the written Constitutions of a number of civilized States of the world. Pakistan has, in fact, improved on them in more than one respect."

8. It the case of the Government of East Pakistan v. Rowshan Bljaya Shaukat Ali Khan (P L D 1966 S C 286), wherein S. A. Rahman J. (as he then was), referred to the case of Abdul Aziz, he clearly took the view that paragraph 2 of the fundamental .Rights under the 1962 Constitution, being Constitutional provisions, must be deemed to be a part of every law of detention, and consequently, if the authority concerned fails to follow such provisions of the Fundamental Rights, its actions may be challenged as illegal but the law would not be invalidated. In other words, his Lordship not only held that the provisions of the said paragraph are constitutional provisions but assumed that they conferred Fundamental Rights.

In my humble view, therefore, neither the provisions of Article 10 can be considered to be Statute or sub‑constitutional law so that they can be H overridden or ignored by sub‑constitutional legislation, nor can it be x seriously disputed that the said Article postulates a very important Fundamental Right, although provisions in regard to right to life and liberty are contained also in other Articles of the Constitution.

10. It was also contended by petitioner Abdul Hafeez Pirzada that what has been suspended by Laws (Continuance in Force) Order, are only the rights and not obligations and since Article 10 mainly specifies the obligations of the State and its authorities towards the people, these obligations would still subsist and would be enforceable, notwithstanding the fact that Fundamental Rights may have been validly suspended. This issue as well as the question as to what is law for the purposes of Article 41 of the Constitution have been dealt with in detail in the judgments of my Lord the Chief Justice and my learned brethren, Abdul Hayee Kureshi and I. Mahmud, JJ. I am in respectful agreement with the views expressed, by them and have nothing useful to contribute in this behalf.

11. I may only point out, in regard to the latter question, that whereas in the Indian Constitution, the term 'Law' has been defined in relation to Fundamental Rights, this has perhaps advisedly not been done in our Constitution though it has defined terms such as "Existing Laws", "Federal Law", "Provincial Law", "Act of Parliament" and "Act of Provincial Assembly". It. may be noted that the expression "Existing Laws" in our Constitution not only includes enacted law but also "other legal instruments having. the force of law".

12. This brings me to the consideration of the issue whether the Funda mental Rights have been suspended as provided in Article 2 of the Laws (Conti nuance in Force) Order. It was contended by petitioner Abdul Hafeez Pirzada that the Fundamental Rights cannot and in fact have not been suspended. He submitted that what the Supreme Court has validated in the case of Begun Nusrat Bhutto referred to above is merely the suspension of Fundamental Rights, to the extent provided in Article 233 of the Constitution, and not a blanket suspension of all the Fundamental Rights. He, however, conceded that since the Supreme Court has held that the situation prevailing in the country, which necessitated the Chief of the Army Staff to take the extra constitutional steps of issuing the proclamation, of Martial Law and declaring certain provisions of the Constitution to be in abeyance, to be at least of the kind contemplated by clause (I) of Article 232 of the Constitution,. not only the enforcement of the Fundamental Rights stood suspended, but further the Fundamental Rights mentioned in clause (I) of Article 233 of the Constitution, namely, Articles 15, 16, 17, 18, 19 and‑ 24 stood suspended. He claimed that as Articles 9 and 10 of the Constitution have not been included in the aforesaid .clause, they cannot be deemed to be suspended, either on the basis of the decision of the Supreme Court in Begum Nusrat .Bhutto's case, where the Supreme Court was dealing with a petition under clause (3) of Article 184 of the Constitution, invoking its jurisdiction with reference to the enforcement of Fundamental Rights, nor on the ground of necessity.

13. The learned Attorney‑General, on the other band, contended that the Supreme Court, in the case of Begun Nusrat Bhutto, has expressly . validated the suspension of Fundamental Rights as provided in clause (3) of Article 2. of the Laws (Continuance in Force) Order, and this view was reiterated by the Supreme Court in the case of Alamdar Husaaln Shah v.Abdul Baseer Qureshi ( P L D 1978 S C 121 ), and was respectfully followed by the Karachi High Court in the case of Rustam Ali v. Martial Law Adrninistrator, Zone 'C'(P L D 1978 Kar. 736) and Nazir Ahmad v. Abbas All Khan ( P L D 1978 Kar. 777 ), a Full Bench of Baluchistan High Court in the case of Khudiadad v. Deputy Martial Law Administrator, Zone 'D' ( P L D 1978 Quetta 177 ) and by the Lahore High Court in the case of Saeed Ahmad Malik v. Federation. of Pakistan( P L D 1978 Lah. 1218). Since every observation of the Supreme Court is not only entitled to the highest respect but further is binding on all Courts subordinate to it, it would not be permissible for this Court to take a different view if in fact the Supreme Court has held that the Fundamental Rights have been validly suspended. If there' had only been the decision of the Supreme Court in the case of, Begun Nusrat Bhutto, it may have been . possible to argue that as the jurisdiction of the Supreme Court had been invoked under clause (3) of Article 184 of the Constitution, namely, the enforcement of Fundamental Rights, it was not concerned with the larger question of suspension of Fundamental Rights. However, this argument and the other arguments which have been urged before us by the petitioners against the valid suspension of the Fundamental Rights, namely, that there was no neqessity for the suspension of the Fundamental Rights, if even during the 1965 War there was only suspension of the enforcement of Fundamental Rights as provided in the 1962 Constitution; that clause (l ) of Article 233 of the 1973 Constitution as well as the corresponding provision of the 1962 Constitution envisage the suspension or only such Fundamental Rights for the invasion or violation of which compensation or reparation could later be made, but what reparation or compensation could be made to a person who is detained without trial under a law made in violation of Articles 9 and 10 of the Constitution or who is tortured under a law made in defiance of Article 9 or who is tried and punished and may even be awarded capital sentence for an act for which he was previously tried and acquitted or which was not in offence at the time it was committed; or that the rights of people in Islam are sacred and are protected under Divine Law and cannot be interfered with or abrogated by the State. In the case of Alamdar Hussain Shah, the Supreme Court was not exercising its powers under Article 184(3) of the Constitution but was hearing a petition for Leave to Appeal against the decision of the Lahore High Court dismissing the Writ Petition filed to challenge the prosecution. of the petitioner before the Sessions Court on the ground that he had previously been tried by a Magistrate on the same charge. This contention was grounded on Article 13 of the Constitution which provides protection against double punishment and self‑incrimination. The Supreme Court while holding that Article 13 of the Constitution bars a second prosecution only in such cases where there has been a prior prosecution, which is finally concluded and has ended in acquittal or conviction, rejected the Petition to Appeal also on the ground that the Fundamental Rights stood validly suspended and observed in this behalf as follows:‑

"As for the first contention, it is to be observed that the Fundamental Rights, conferred by Chapter I, Part 11 of the Constitution stand suspended at the moment. Article 2(3) of the Laws (Continuance in Force) Order, 1977 provides:

"2(1) ..

(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended.

This Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (P L D 1977 S C 657), .found the above to be good law and held that the Fundamental Rights stood suspended by virtue thereof. No proceedings for their enforcement are, therefore, presently competent."

14. In view of the above decision, which I. have already pointed out, was not given in proceedings under clause (3) of Article 184 of the Constitution, in my humble opinion, there would appear to be no room for the argument that the Supreme Court was only concerned with the question of enforce ment of Fundamental Rights and not with the larger question of the suspension of Fundamental Rights.

15. 1 am accordingly of the view that the validity of M. L. O. 12 and the amending M. L. O. 55 cannot be assailed either on the grounds that they are violative of Articles 10, 8 and 4 of the Constitution or that they are in excess of the powers permissible to the C. M. L. A. under the doctrine of necessity as propounded by the Supreme Court in Begum Nusrat Bhutto' case and further clarified by the Supreme Court in the case of Mr. Zulf7qar Ali Bhutto v. The State (1). However, I would agree that the petition should be allowed on the grounds that there has been no proper application o mind by the detaining authority in regard to the extensions of the period of detention of the two petitioners, that grounds of. detention have not been supplied to the petitioners thereby rendering nugatory the very limited right afforded to detenus under M. L. O. 12 to make representations to K seek relief from Caesar to Caesar, and finally the fact that the Section g Officer of the Home Department, who is directly working under the Home K Secretary who is one of the two officers forming the Committee under M. L. O. 12 to examine and recommend on the petitions and representations of detenus, has filed a counter‑affidavit supporting strongly the detention orders in respect of the two petitioners and voicing serious apprehensions if they were to be released, thus further eroding the right of petition and representation under M. L. O. 12. s. A. H. Petition allowed.

(1)PLD1978SC40