NAZAR MUHAMMAD KHAN Versus PAKISTAN

NAIMUDDIN, C. J. ‑This is a petition under Article 199 of the Con stitution. The petitioner's case is that he. was a confirmed Professional Assistant in Grade‑13, with effect from 1‑6‑1973, and was appointed as Assistant Security Officer, Air Port Security Force, after his selection by Federal Public Service Commission on 26‑10‑1976.

2. The petitioner by the letter, dated 23‑8‑1981, was informed by the Force Commander, Airports Security Force, on behalf of Secretary General Defence that his services were no longer required and in exercise of the power under the provisions of paragraph 6, read with paragraph I1 of the Martial Law Regulation No. 52, his services were dispensed with, with immediate effect with normal terminal benefits admissible to him as per rules. It may be stated here that the petitioner attained the age of superannuation on 24‑9‑1984, as would appear from prayer clause (iii), of the petition.

3. On 20‑8‑1985, the petitioner preferred an appeal, being Appeal No. 120 (K) of 1955, with the Federal Service Tribunal, Islamabad, which was dismissed, as being hopelessly time‑barred. The petitioner's application for condonation of the delay was also dismissed as the Tribunal held that inordinate delay could not be satisfactorily explained. It is pointed out in the order that the jurisdiction of the Tribunal was barred under Article 15 of the Provisional Constitution Order, 1981.

4. The petitioner by the present petition filed on 19‑12‑1985, under Article 194 of the Constitution has sought declaration that Martial Law Regulation No. 52, was unconstitutional, illegal, without lawful authority and of no legal effect and consequences and for further declara tion that the order dispensing with the services of the petitioner was unwarranted and was beyond the very scope of Martial Law Regulation No. 52, being in contravention of paragraphs 6 and 11 thereof, and, there fore, without jurisdiction and lawful authority. The petitioner has also sought declaration that he continues to be in service or is entitled to be re‑instated.

5, The office has raised the following objections on the petition :‑

"(I) How this petition is maintainable against dismissal order under M.L.R. 52 in view of Article 15(5)(d) of P.C.O., 1981, and

(ii) remedy is available before the Supreme Court under Article 212 of the Constitution."

6. When the petition came up before a Division Bench of this Court, the Bench felt it necessary to hear the office objection in the presence of the Attorney‑General and accordingly issued notice to him. Meanwhile the petitioner tiled an application under Order VI, rule 17, C. P. C., fist amendment of the petition which came up for' hearing on 10‑4‑1986, before the Bench but was dismissed. The order dismissing the application is reported as Nazar Muhammad Khan v. Pakistan and 1 others (P L D 1986 Kar. 301). By that same order, at the request of the Deputy Attorney‑General and with the consent of Mr. U. Niamat Moulvi, the Division Bench directed to place the matter before a Full Bench. Accordingly the Full Bench heard Mr. U. Niamat Moulvi on behalf of the petitioner and Mr. Aziz Munshi, the Attorney‑General.

7. It was submitted by Mr. Moulvi that Martial Law Regulation No. 52 was ultra vires and unconstitutional. He relied on Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (P L D 1977 S C 657).

8. Before going into the submission we may quote here the entire prayer for ready reference. It reads as follows:‑

"(i) For a declaration that the impugned M.L.R. 52 was/is, unwarrant ed, uncalled for, unconstitutional, illegal and of no legal effects and consequence and patently, without lawful authority.

(ii) That the impugned order of dispensation of the services of the petitioner was patently uncalled for, unwarranted, I.e. Annexure "C ", dated 23rd August, 1981 and even beyond the very scope of M. L. R. 52 and in patent contravention of pat‑as. 6 and 11 thereof, rendering the same as a nullity.

(iii) Declaration that the dispensation of the services of the petitioner were without jurisdiction and without lawful authority and the petitioner does and did continue in his service and alternatively the petitioner is duly entitled to be re‑instated with dignity and honour with retrospective effect from 23rd August, 1981 i.e. the date of the impugned order of dispensation at Annexure "C", hereto, entitling the petitioner to all benefits, privileges and interest from the date of the said impugned order to the date of the petitioner's superannua tion on 24‑9‑1984 etc.

(iv) Any other relief, this Hon'ble Court may deem fit and proper to grant in the circumstances of the case, to meet the ends of justice and equity."

9. It will be seen from the prayer clause reproduced above that the petitioner has not questioned in the petition the order of the Tribunal dated 28‑8‑1985.

10. Now, before considering the objections raised by the office we take .up the question of vires, legality or constitutionality of the Martial Law Regulation No. 52. In this regard it would suffice to say that by insertion of Clause 270‑A in the Constitution by the Constitutional (Eighth Amendment) Act, 1985, all the President's Orders, Ordinances, Martial Law Regulations etc., have been affirmed, adopted and declared, A notwithstanding any judgment of any Court, to have been validly made by competent authority. By the same Article it has been provided that notwithstanding anything contained in the Constitution the same shall not be called in question in any Court on any ground whatsoever. By virtue of Clause‑(2) of Article 15 of the Provisional Constitution Order, 1981, the petitioner at the time when the order was passed was precluded from calling the same in question in any Court. Further, a Division bench of this Court has. already dealt with, in some detail, the question of legality of Martial Law Regulations and Martial Law Orders in the order dismissing the application under Order VI, rule 17, C.P.C. for amendment of the peti tion made by the petitioner in this petition, as stated before and has hold that the validity of the laws including Martial Law Regulations and Martial Law Orders made between 5‑7‑1977, and tire date on which the Article 270‑A came into force f e., 30‑12‑1985 could not be questioned. In doing so the Division Bench relied on the decisions of the Supreme Court in The Federation of Pakistan through the Secretary, Establishment Division. Govern ment of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (P L D 1976 S C 151), Sheikh Karamat Ali v. The State (P L D 1976 S C 476), Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 22) and Fauji Foundation and another v. Shamimur Rehman (P L D 1983 S C 475).

In view of the amendment of the Constitution, by insertion of Article 270‑A therein and whereby affirmation adoption and validation of all Martial Law Regulations and Martial Law Orders, etc., reference to Begum Nasrat Bhutto's case, in our opinion, has become unnecessary.

10‑A. Further, Article 15(5) of the Provisional Constitution Order, 1981, precluded this Court on 19‑12‑1985, when the petition was filed in this Court, from making an order relating to the validity or effect any order Martial Law Regulation made by the Chief Martial Law Administrator or a Martial Law Administrator. Article 15 of the Provisional Constitution Order, 1981, reads as follows :‑

"15.‑Validation of laws, Acts, etc.‑(1) The Proclamation of the fifth day of July. 1977, all President's Orders, Orders of the Chief Martial Law Administrator, including Orders amending the Constitution made by the. President or the Chief Martial Law Administrator, Martial Law Regulations, Martial Law Orders and all other laws made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and shall not be called in question in any Court on any ground whatsoever.

(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977. in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations. Martial Law Orders, enactments, notifications, rules, orders or bye‑laws or‑ in execution of any orders‑ made or sentences, passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever

Provided that nothing in this clause shall apply to transactions past and closed.

(3) Where a Military Court is established in pursuance of a Martial Law Order made by the Chief Martial Law Administrator, no other Court, including the Supreme Court, and a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter of which, cognizance has been taken by, or which has been transferred to the Military Court, and all proceedings in respect of any matter of which cognizance has been taken by, on which has been transferred to the Military Court, and all proceedings in respect of any such matter which may be pending before such other Court shall abate.

(4) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5)' Notwithstanding any judgment of any Court, including any judgment in respect of the powers of the Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not, ‑

(a) make an order relating to the validity or effect of any Order or Martial Law Regulation made by the Chief Martial Law Adminis trator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder ;

(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal ;

(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or' Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or

(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.

(6) Every such order, injunction or process as is referred to in clause (5) made, granted or issued at any time before or after the com mencing day shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate, and it is hereby declared that any such order. injunction or process shall not be binding on any Martial Law Authority or civil authority acting under the directions of a Martial Law Authority."

We, therefore, do not consider it necessary to go into this question in, any further detail and hold that in view of the aforsaid provisions the legality or constitutionality of Martial Law Regulation No. 52 cannot be questioned.

11. As regards the order terminating the service it may be stated that it was passed under paragraph 4 of Martial Law Regulation No. 52.

Now, taking up the first objection, it may be stated that instead of Provisions of Article 15(5) (d) of the Provisional Constitution Order 1931, the Provisions of Article 15, clauses (2) and (5)(a) are attracted. The provisions have already been quoted above. It will be seen from the above provisions of clause (2) that on or after fifth day of July, 1977, they protect all orders made proceedings taken and acts done by any authority in the exercise or purported exercise of powers derived from any President' Order or Orders of Martial Law Administrator, Martial Law Regulations, Martial Law Orders. etc., notwithstanding any judgment of any Court, deemed to be and always to have been validly made, taken or done and they could not be called in question in any Court on any ground what. soever. Since the order of termination of the service of the petitioner which was passed under Martial Law Regulation No. 52, therefore, it could not have been called in question. .

We are fortified in our view by several decisions of the Supreme Court and of High Courts namely, Muhammad Haroon v. District Food Controller and others (1982SCMR551), Dr. Muhammad Elias Dubash v. Punjab Service, Tribunal and others (1982SCMR562), Electric Lamp Manufacturers of Pakistan Ltd. v. Additional com missioner, Karachi and 3 others (1993 S C M R 3105), The Province of the Punjab and others v. Syed Muhammad Akram Shah (P L D 1984 S C 409), Government of Punjab and others v. Saleem Hussain Gardezi (1985 S C M R 443), Major‑General (Retd.) Tajjamal Hussaia Malik v. Federal Government of Pakistan through Defence Secretary and 2 others (P L D 1981 Lah. 462), Sirajuddin v. Larkana Municipal Committee (1982 C L C 1979), and Muhammad Anwar Khan v. C.M.L.A. etc. (1984 C L C 706).

12. In the first named case Dr. Nasim Hason Shah, J. while delivering the opinion on behalf of the Supreme Court observed at page 556 of the report as follows

"Rana Abdul Majid, learned counsel for the petitioners appearing in support of the remaining petitions submitted that he was neither challenging the validity of Martial Law Instruction No 22 nor questioning the view that if action was taken thereunder it would be immune from challenge after the promulgation of the Provisional Constitution Order, 1981. His plea was that the provisions of Martial Law Instruction No. 22 had not been observed, while cancelling the depot of the petitioners, whom he was representing. In this connection, he submitted that in the case of Qazi Muhammad Ishaq (Petitioner in C.P.S.L.A. No. 184/82) ‑ for instance the said petitioner's authorisation was cancelled without hearing him, although para. 8 of Martial Law Order itself provides that the cancellation of the authorisation would be ordered only after giving a show‑cause notice to the persons effected.

The question whether a person was issued a show‑cause notice before cancelling his authorisation or not is a question of fact ; and in so far as action purports to have been taken under the said Martial Law Instruction No. 22 and shall be presumed that its provisions have been complied with. Moreso, its validity is to be judged according t o the tenor of the order and if it purports to be passed in pursuance of the said Martial Law Instruction it is immune from challenge. However, if the petitioners felt aggrieved by the said order on the ground now urged before us they should have filed an appeal to the authority superior to one, who had passed the said order as provided for under para. 9 of the Instruction, in the course of which the objection being taken before us could have been scrutinised and investigated." (Underlining' is ours).

13. In the case of Electric Lamp Manufacturers of Pakistan Ltd., (supra) a Division Bench of this Court consisting of Abdul Hayee Kureshi, C. J. and Saeeduzzaman Siddiqui, J., followed decision of the Supreme Court in the case of Muhammad Haroon (supra). It was contended before the Division Bench that the order passed by respondents Nos. 1 and 2 were not passed in conformity with the Martial Law Order 33, and, therefore. was liable to be quashed. Repelling the contention the Division Bench observed as follows :‑

"We are afraid on such ground the petition against the order of Martial Law Authorities cannot be entertained by this Court in view of the Provisions of Article 15 (5) of the P. C. O., 1981." :

14. In the case of Dr. Muhammad Elias Dubash the compulsory retire ment was by challenged the petitioner and a Full Bench of the Supreme Court headed by the then Acting Chief Justice and now the Chief Justice Mr. Justice Muhammad Haleem, held that under the Provisional Constitu tion Order, 1981, any challenge to an order passed by the Martial Law Ad ministrator was not entertatnable in view of clause (2) of Article 15 of the Provisional Constitution Order, 1981. It was further observed that any submission in regard to the validity of the order of compulsory retirement was beyond the pale of challenge. We may quote the relevant observa tion :‑

"Under the present dispensation namely, the Provisional Constitution Order of 1981, any challenge to an order passed by the Martial Law Administrator is not entertainable in view of clause (2) of Article 15. Therefore, any submission in regard to the validity of the order or compulsory retirement is beyond :he pale of challenge."

15. In the case of Muhammad Akram Shah the order was passed by the Board of Revenue persuant to the recommendation of the Revenue Board constituted under Martial Law Instruction No. 21. 'The order was challenged before the Service Tribunal which was set aside the same but the Supreme Court held the order of Service Tribunal could not be sustained because the order passed by the Revenue Board on the recommendation of Revenue Board constituted under the Martial Law Instruction No. 21 was immune from being called in question in any Court. In delivering the opinion on behalf of the Court Dr. Nasim Hasan Shah, J., at pages 414 and 415 of the report observed as follows :‑

"The overall conclusion is that the order of the Board of Revenue, dated 14‑9‑1977, which was passed is pursuance of the recommenda tion of the Review Board, constituted under Martial Law Instruction No. 21, was immune from being called in question in any Court and, therefore, the impugned order of the Service Tribunal, dated 18‑10‑1981, setting aside the order cannot be sustained."

16. In the case of Government of Punjab and others v. Saleem Hussain Gardezi (supra) the respondent's services were terminated by the Revenue Board constituted under the Martial Law Instruction No. 21. It was held by the Full Bench of the Supreme Court consisting of Shafiur Rah ::an, M. S. H. Quraishi, and Mian Burhanuddin Khan, JJ. that such order of ter mination by the Review Board could not be challenged under section 4(1) before the Service Tribunal in view of the provisions of Article 15(2) of the Provisional Constitution Order, 1981. We may reproduce the relevant observations which read as follows :‑

"Moreover, under Article 15(2) of the Provisional Constitution Order, 1981 which is as follows :

All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Law Orders, enactments, notifications, rules, orders or bye‑laws or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever ... ...,' the order of the Board or the constitution of the Board cannot be challenged, in view of this prohibitory provision of law the learned Tribunal was debarred from adjudicating on the order passed‑ under Martial Law Instruction."

17. In the case of Major‑General (Retd.) Tajjamul Hussain (supra) the wires of the Provisional Constitution Order, 1981 was also considered by a Division Bench, of Lahore High Court in paragraphs 10, 11 and 12 and it was observed as follows :‑

"10.‑The Proclamation of the fifth day of July, 1977, read with C.M.L.A. Order I of 1977, on the other hand, supplies a complete answer to the omissions. The proclamation lays down a scheme of interim Government while the C.M.L.A., Order gives its details. Further, as is clear from its last para. of the preamble, the Pro visional Constitution Order derives its life, strength and validity from the Proclamation and the C.M.L.A. Order 1 of 1977.

It reads as under :‑

"Now, therefore, in pursuance to the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order I of 197'), and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make the following orders."

11.‑It is, therefore, quite clear that the Provisional Constitu tion Order is just another Order of the C. M. L. A., made in exercise of the powers conferred on him by Article 2 of the C.M.L.A. Order, 1 of‑ 1977. It does not lay down or give a new legal order. We, therefore, do not agree with the learned counsel that the C.M.L.A. has given an alternate Constitution in the Pro visional Constitution Order, 1981, or in any way upset the Pro clamation of the fifth day of July, 1977, or its purpose.

12.‑In view of our finding that the Provisional Constitution Order is only another C.M.L.A. Order issued in exercise of the Proclamation and the Laws (Continuance in Force) Order, 1977 and that is not at all an alternate or parallel Constitution, we do not think that the other objection of the learned counsel, about amendment of the Constitution or interference with the power or jurisdiction of the superior Courts, has any force. The learned counsel had specifically referred to a portion at page 715 of the report of Nusrat Bhutto's case which is as under:‑

"As a result, the true legal position which, therefore, emerges as :‑

(i) That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity ;

(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Con stitution, and have continued in their functions in spite of Proclamation of Martial Law ;

18. In Sirajuddin's case (supra) a Division Beach of this Court held as follows :‑

"It has also been urged that when a competent authority has jurisdiction to pass an order, it has jurisdiction to piss even a wrong order and even a wrong application of Martial Law Order or Regulation by a competent authority shall be beyond the power of judicial review of this Court according to Articles 15(4), (5) and (6) of‑the Provisional Constitution Order, 1981. In this connection, we may quote with advantage the observations made by Ajmal Mian, J. of this Court in Constitutional Petition "No. D‑1330 of 1978. After quoting the provisions of Article 15 the learned Judge observed as under :‑

"A perusal of the above‑quoted paras. indicates that this Court cannot go into the validity or affect of an order of Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator of anything done or action taken or intended to be done or taken thereunder. In our view the phrase 'anything done' or 'action taken' or 'intended to be done or taken thereunder' employed in the abovequoted para. (a) of the P. C. O. is of wide import as to exclude the jurisdiction of this Court to go inns the validity of an order, though prima facie it seems that the impugned order is not in accordance with the M. L. O. We are sure that if the petitioner will approach the competent authority his grievance will be redressed.'

(3) In view of the abovequoted clause (6) of Article 15 of the P. C: O., the above‑petition stands abated."

We are in respectful agreement with the above observations and consequently are of the view that this petition is barred by Article 15 of the P. C. O., 1981. Accordingly, the petition is dismissed in limine."

We are, therefore, of the view that the order of termination of service having been passed under Martial Law Regulation No. 52, was protected under Article 15(2) of the Provisional Constitution Order, 1981, and could not have been called in question in this Court, and therefore, the petition is not maintainable.

19. With regard to second objection Mr. U. Niamat Moulvi referred to Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and others (P L D 1966 S C 639), Muhammad Khan v. Shamsuddin and others (P L D 1969 S C 212) and Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (P L D 1977 S C 657) in support of his submission that the appeal to the Supreme Court under Article 212 of the Constitution was not adequate and alternate remedy..

20. However, in view of our opinion on the first objection expressed above, we do not consider it necessary to go into the. second objection.

We, therefore, dismiss this petition as not maintainable.

M. B. A. Petition dismissed.