KARAMAT ALI Versus THE STATE

1. MUHAMMAD GUL, J. ‑This criminal appeal by special leave raises a question as to the effect of the judgment by a Special Military Court established under Martial Law Regulation No. 2 during the Martial Law period 1969‑72, when the judgment though signed and certified by the Court during that period, was not confirmed by the Confirming Authority until after the revocation of Martial Law with the coming into force of the Interim Constitution.

2. The appellant was charged with having raped a girl. He was tried by a Special Military Court under section 376, P. P. C. Proceedings before the Court commenced on the 27th March 1972 and the prosecution evidence was recorded on the same day. The appellant did not produce any defence and made closing address on the 28th March 1972. On the 30th March 1972, the Court found him guilty and sentenced him to 10 years' R. 1. and a fine of Rs. 4,000 or in default to further R. I. of 2 years.

3. The Special Military Court was established under Martial Law Regulation No. 2 and subject to certain variations which are not material to this appeal, exercised the same powers and followed the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and the Rules made thereunder were made ; applicable to all proceedings before it. The sentence passed by the Court s was subject to confirmation in the case of a sentence of death by the Chief Martial Law Administrator and in other cases by the Martial Law Administrator of the concerned Zone as the convening Authority. In the instant case the appellant's conviction and sentence was confirmed by the Governor on the 29th April 1972 that is to say 9 days after the revocation of the Martial La‑, M. L. R. No. 2 under which the Special Military Court had been constituted, having lapsed in the meantime on the commencement of the Interim Constitution.

4. The appellant applied for a writ of habeas corpus under section 491, Cr. P. C. on the ground that notwithstanding the judgment of the Special Military Court, his conviction and sentence remained inchoate, and the confirmation by the Governor subsequent to the revocation of Martial Law was ineffective and therefore his detention in the prison purporting to be in execution of the sentence passed by the Special Military Court, was illegal. A learned Single Judge of the Lahore High Court vide judgment dated the 15th June 1972 dismissed the application in limine basing himself on Article 4 of the Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 1972).

5. Leave to appeal was granted to consider:

(1) Whether P. O. 14 of 1972 was an "existing law" within the meaning of clause (8) of Article 280 of the Interim Constitution.

(2) Whether on the 21st April 1972, the case against the appellant was pending within the meaning of Article 3 of P. O. 14 of 1972.

(3) Whether P. O. 14 of 1972 being sub‑constitutional legislation is intro vires the Constitution since it confers judicial Dowers on the executive authority which is to be exercised by the judiciary in the ordinary course?

6. Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 1972) was promulgated by the President on the 18th April 1972, during the Martial Law period, pursuant to the Proclamation of the 25th March 1969 and the Provisional Constitution Order. The latter Order in turn was made by the Chief Martial Law Administrator (and not in his capacity as President) "pursuant to the Proclamation of 25th March 1969 and of all powers enabling him in that behalf." Article 3(1) of this Order provided that notwithstanding the abrogation of Constitution of 1962 and subject to any Martial Law Regulation or Order, issued by C. M. L. A. "the State of Pakistan shall, except as otherwise provided by this Order, be governed as nearly as may be. in accordance with the said Constitution." By clause (2) ibid, the C. M. L. A. assumed to himself the power to "perform all functions assigned to the President of Pakistan by or under the said Constitution or by or under any law." Thus the Provisional Constitution Order was essentially a supra‑constitutional instrument like the Laws (Continuance in Force) Order. 1958 which had held the field and was accepted by Courts as the fundamental law during the Martial Law period 1958‑62. Article 8 of the Provisional Constitution Order provided:

7. "The President may, by Order, make such provisions, as he may deem fit for the administration of the affairs of the State."

8. This Order still held the field on 18‑4‑1972 when P. O. 14 of 1972 was brought into force and is directly relatable to Article 8 set out above. Even in the notification in the official Gazette it is stated that Order has been made by the President and not by the Chief Martial Law Administrator which would have been the case, if the Order had been designed to operate as the Martial Law Regulation. Nothing turns on the use of the words "Martial Law" in the long title of P. O. 14 of 1972: it is merely a pointer to the remedial machinery being created to secure continuity of legal proceedings pending before the Martial Law Authorities, immediately before the revocation of Martial Law.

9. On the above analysis, therefore P. O. 14 of 1972 is an "existing law" within the meaning of clause (8) of Article 280 of the Interim Constitution according to which "existing laws" mean :

10. "All laws (including Ordinances, Order‑in‑Council, Orders, Rules bye‑laws, regulations and Letters Patent constituting a High Court. and any notification and other legal instruments having the force of law) to force in Pakistan or any part of Pakistan, or having extra territorial validity. immediately before the commencing day."

11. Accordingly Order 14 of 1972 continued to remain in force as "existing law" under clauses (1) and (2) of Article 280 not being one of the Orders listed for repeal in the Sixth Schedule to the Interim Constitution. Clauses (1) and (2) are in these terms:

12. "(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.

(2) The Proclamation made on the twenty‑fifth day of March, 1969, is revoked with effect as from the commencing day, and the Orders specified in the Sixth Schedule and any Orders amending those Orders are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders."

13. On the other hand clause (3) ibid expressly repealed all Martial Law Regulations and Martial Law Orders except those specified in the Seventh Schedule to the Interim Constitution which on the commencement of that Constitution were deemed to have taken effect as Acts of the appropriate Legislature. Therefore, while the Provisional Constitution Order having been issued by C. M. L. A. pursuant to the Proclamation of the 25th March 1969 stood repealed with the coming into force of the Interim Constitution P. O. 14 of 1972 was saved as "existing law" under clauses (1) and (2) of Article 280 of the Interim Constitution.

14. On the second question, it having been found that P. O. 14 of 1972, Is saved as "existing law", Articles 3 and 4 ibid fully cover the situation. As pointed out already the Order was promulgated on the 18th April 1972, shortly before the revocation of Martial Law. According to its preamble, it was designed to provided for "the disposal on and after the appointed day of cases which may be pending before the Martial Law Authorities immediately before that date." Articles 3 and 4 in so far as they are material to this appeal are in these terms:

15. "3 (1) Every case pending immediately before the appointed day before a Special Military court or Summary Military Court shall on the appointed day stand transferred to the criminal Court which would have had jurisdiction to try the offence constituted by the facts of that case under the ordinary law.

2. (2)________________________________________________________________________________________________________________________________________________

4. Every case which, having been decided and disposed of by a Special Military Court is, immediately before the appointed day, pending for confirmation, and every petition or application for review pending on such day, shall on or after the appointed day be dealt with and disposed of by the President of Pakistan, if the sentence is one of death, and in all other cases, by the Governor of the Province concerned."

16. The short question therefore is whether on the facts stated above, the case against the appellant could be regarded as "pending " on the appointed day, merely because his conviction and sentence in the absence of confirmation by the Governor, had not taken effect? On this aspect of the case, this Court's judgment in the Ex‑Captain Mohammad Akram Khan v. The Islamic Republic of Pakistan (PLD 1969SC174) is a complete answer. The appellant in that case was tried during Martial Law period 1958‑62 for various offences and sentenced to death. His conviction and sentence were confirmed by the Commander‑in‑Chief of Pakistan Army who was the Confirming Authority fin his case. But sentence was not "promulgated" which was an essential element under the relevant rule for the confirmation of sentence until after the revocation of Martial Law by which time, as in the instant case, the Special Military Courts had ceased to exist. In the precedent case, the conviction and sentence were assailed on the ground that the trial was incomplete and that the Special Military Court having ceased to exist with the revocation of Martial Law, the appellant in that case should be tried afresh either by the General Field Court Martial under the Pakistan Army Act, 1952 or by the ordinary criminal Court. The argument was however, repelled with following observations:

17. "The contention of the learned counsel appearing for the appellant is that the result of this is that there is neither any conviction nor acquittal and, therefore, the trial is still incomplete, and now that the Special Military Court has ceased to exist the appellant must be tried either by a Court Martial under the Pakistan Army Act or by an ordinary criminal Court. But it appears to us that in making this argument the learned counsel has ignored the provisions of the President's Order No. 26 of 1962 and Ordinance No. LXXII of 1962. These Orders were made before the Constitution came into force to provide for cases which were still pending disposal before the Martial Law Authorities as also for cases where sentences of death or, transportation passed by the Special Military Courts were pending for confirmation immediately before the Commencing Day. These would clearly seem to contemplate that the Authorities themselves were conscious of the fact that there may be cases in which such sentences were pending confirmation and, therefore, it was expressly provided by Ordinance No. LXXII of 1962 that where a sentence of death or transportation passed by a Special Military Court is pending for confirmation immediately before the Commencing Day, the proceedings relating thereto shall be submitted to the Commander‑in‑Chief, who may either confirm the sentence or make such order in respect thereof as he thinks fit.

18. Even if the argument of the learned counsel is accepted that confirmation is not complete without promulgation, then all that is pending in the present case is the confirmation of the sentence, for. so far as the Special Military Court itself is concerned it has done all that it was required under the Pakistan Army Act to do. It has recorded its.. findings, passed the sentence, certified it under its President's signature, and forwarded the same for confirmation while it was still competent to do so, before the Constitution of 1962 came into force. All that was left to be done on that date, even on the basis of the argument advanced on behalf of the appellant, was that the confirmation of the sentence was pending."

19. As in the precedent case, in the instant case also, the Special Military Court has done all that it was required to do. It heard the entire evidence in the case and the closing address by the appellant. It has recorded its findings and the sentence which after being certified by the President of the Court has been duly forwarded to the Governor designated $s the Confirming Authority for confirmation.

20. As to the vires of P. O. 14 of 1972, Article 281 of the Interim Constitution as a blanket protection against any challenge to the validity of the Order This Article so far as it is material to the instant case reads:‑

(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty‑fifth day of March, 1969, 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.

(2) All orders made, proceedings taken and acts done by any authority, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty‑fifth day of March, 1969, in exercise of the powers derived from any President's Orders, 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 be deemed, notwithstanding any judgment of any Court, to be and always to have been validly made, taken or done and shall not be called in question to any Court.

(3) ‑ ‑‑ ‑ ----------------------------------------------------------------------

21. It is supplied to indicate the amendment made in clause (2) above by the Constitution (Sixth Amendment) Order, 1973 (P. O. 3 of 1973) issued by the President under Article 279(1) of the Interim Constitution. The Order came in force on the 3rd April 1973, but under the commencement clause took effect retrospectively as from the 21st April 1972. Incidentally, the amendment was a sequel to this Court's judgment in State v. Zia‑ur Rahman (P L D 1973 S C 49) which followed closely on the heals of the celebrated case of Asma Jilani v. Government of Punjab (P L D 1972 S C 139). The constitutionality of P. O. 3 of 1973 came directly under question in a later case Federation of Pakistan v. Saeed Ahmad (P L D 1974 S C 151) on the ground that under Article 279(1) of the Interim Constitution, the President's power to amend the Constitution was limited to making an amendment as may have become necessary for bringing the provisions of the Constitution into operation or removing the difficulty *rising in connection therewith. Article 279 for the material purpose reads:

(1) The President shall, by Order, make such provisions as appear to him to be necessary or expedient‑

(a) for bringing the provisions of this Constitution into effective operation;

(b) for removing difficulties arising in connection with the enforcement of this Constitution;

(c) for making omissions from, additions to, modifications of and amendments in this Constitution.

(2) No Order shall be made under this Article after the thirty first day, of March, 1973. "

22. According to the majority opinion in Saeed Ahmad's case, sub‑clause (c) of~ clause (1) gave an independent power to the President to amend the Constitution for a limited period of one year which was in no way controlled by sub‑clauses (a) and (b) and further that amendment of Article 281(2) by P. O. 3 of 1973 was competently made. According to the minority view however, the power to amend under sub‑clause (c) was ancillary or subsidiary to the preceding two sub‑clauses. The majority view was followed in a later judgment of this Court in Mehreen Zaibun Nisa v. Land Commissioner (P L D 1975 S C 397).

23. The scope and the effect of protection afforded by clause (2) of Article 281, amended as aforesaid, remains to be seen. On behalf of the Government in weed Ahmad's case it was argued that after the amendment of Article 281(2) by P. O. 3 of 1973, the ouster of jurisdiction was complete and the Courts cannot "on any ground whatsoever" call in question any such actions notwithstanding the judgments of this Court in the case of Asma Jilani and Zia‑ur‑Rahman. It was stressed that doubts as to real intention of the law‑maker, created by the differentiation in the terminology in clauses (1) and. (2) have now been removed by the all embracing language of the amended clause (2) which did not admit of any implication or exception. Agreeing with the view taken by the High Court and following the generally accepted principles of interpretation of the statutes after a review of the relevant precedent cases, this Court came to the conclusion that Article 281(2) even a amended would not protect or validate proceedings or actions "taken without jurisdiction or mala fide, or orders of judicial or quasi judicial nature which are coram non judice." But there is no allegation in this case that the decision of the Special Military Court or the confirmation of that decision by the Governor under Article 4 of P. O. 14 of 1972 was without jurisdiction or mala fide. Therefore, protection under Article 281(2) will apply to this case.

24. Learned counsel for the appellant however, relied on Muhammad Ayub Khuro v. Pakistan (P L D 1960 S C 237) in support of his plea that notwithstanding the protective provisions in clause (2) of Article 281, the validity of the sentence its confirmation purporting to be pursuant to Article 4 of P. O. 14 of 1972, is open to question by this Court. The facts of the precedent case were entirely different. In that case the appellant was tried and convicted by a Special Judge appointed under the Criminal Law Amendment Act, 1958 for an offence under the Hoarding and Black marketing Order. It was held in that case that the Special Judge had ab initio no jurisdiction to try the case and therefore, the entire proceedings before him were coram non judice and therefore void. Indeed the case relied upon by learned counsel fell within the exception postulated even in Saeed Ahmad's case. In the instant case it is not the appellant's case that the Special Military Court had no jurisdiction to try him or that, the Governor did not exercise power of confirmation of sentence passed by the Special Military Court. There is no plea muchless any proof of mala fide either.

25. For the foregoing reasons the appeal fails and is dismissed.

26. S. A. H. Appeal dismissed.