M.H. SHAMIM Versus PAKISTAN

ORDER

1. ANWARUL HAQ, C J.-The petitioner M. H. Shamim joined the Police Service of Pakistan in March, 1952, and was serving as District Officer, Frontier Constabulary, Tank, in the North-West Frontier Province, when he was placed under suspension by the Government of Pakistan under Martial Law Regulation No. 58, and eventually dismissed from service on the 12th of May, 1970. He filed an appeal before the Service Tribunal. under section 4 of the Service Tribunals Act, 1973, but the same was dismissed by the Tribunal on the 20th of November, 1977, on the majority view that the Tribunal had no jurisdiction in the matter. The petitioner seeks leave to appeal under Article 212 of the Constitution.

2. It is contended by Mr. Shaukat Ali, the learned counsel for the petitioner, that the Tribunal was in error in thinking that it had no jurisdiction in the matter, as, in fact, Martial Law Regulation No. 58- was void ab initio; having been promulgated by the usurper .General Agha Muhammad-Yahya Khan ; that the Regulation was unnecessary in view of the existence of the Government Servants (Efficiency and Discipline) Rules,. and could not, therefore, be condoned even under the doctrine of necessity ; that the order of suspension passed against the petitioner was invalid also for the reason that although the order was made on the 3rd of December, 1969, yet M. L. R. 58 was not published in the gazette until the 16th of December, 1969 ; and that, in any case, the Regulation being a temporary law and having ceased to exist owing to its non-inclusion in the list of laws validated by the Validation of Laws Act, 1975, all actions taken thereunder would automatically disappear, as the order of dismissal was not a past and closed transaction. The learned counsel further contends that the Tribunal has erred in thinking that all actions taken under the Martial Law Regulation in question, stood fully and completely protected under clause (4) of Article 270 of the 1973 Constitution; and that, in any case, such a view ignores the fact that the terms and conditions of service of the petitioner were fully protected in terms of Articles 177 and 178 of the 1962 Constitution read with paragraph 3 (c) of the Laws (Continuance in Force) Order, 1969 ; and that under clause (3) of Article 178 of the aforesaid Constitution, the petitioner had a right to apply for review to the President of Pakistan, which he did, but his review petition has not yet been disposed of.

3. It is not necessary to deal at any length with these submissions, for most of these points have been examined by us in Civil Appeal No. K-1 of 1978, and we have come to the conclusion that irrespective of the fact that M. L. R. 58 does not find place in the list of laws validated under the Validation of Laws Act, 1975, yet all proceedings taken, orders made and acts done, or purported to have been taken, made or done under this Martial Law Regulation falls within the purview of the validity and immunity from judicial review granted by clause (4) of Article 270 of the Constitution, but at the same time the orders were open to appeal and revision under the Service Tribunals Act, 1973, and it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellants before it to challenge the order of their dismissal made under, M. L. R. 58 in May, 1970.

4. On this view of the matter, we would convert this petition into an appeal, set aside the order of the Tribunal, and direct that the appeal filed by the petitioner-appellant be heard expeditiously on all questions. of law and fact sought to be raised by him in the light of our detailed judgment in PLD1980SC22.

5. As the matter was still at the petition stage, there will be no order as to costs.

6. S. A. H. Appeal allowed.