FEDERATION OF PAKISTAN Versus GHULAM MUSTAFA KHAR

SAAD SAOOD JAN, J.‑‑These are fourteen appeals by special. leave and fourteen petitions for special leave to appeal from the judgments of the High Courts of the Punjab and Sind. These have been heard together as they raise common questions of law relating mainly to the interpretation of Article 270‑A of the Constitution and the Martial Law (Pending Proceedings) Order, 1985, also know,," as Martial Law Order No.107.

2. Except Civil Appeal No ' .287 of 1987, the other appeals and petitions for special leave to appeal pertain to convictions and sentences. recorded and passed by the Special Military Courts. In some of the appeals and petitions, the conviction and sentences were pronounced. after the Martial Law had been lifted. Civil Appeal No.285 of 1987 has been preferred by Nazar Muhammad Khan who was serving a~ Assistant Security Officer in the Airport Security Force when , his services were terminated under Martial Law Regulation No.55. Ht: filed an appeal before the Federal Service Tribunal but it was dismissed on the ground of limitation. He then invoked the constitutional jurisdiction of the High Court to question the legality of the order of termination of his services but without any success.

3. Before proceeding to examine the contentions raised in the matters before us, ii will be appropriate to briefly refer to the constitutional developments which took place in the country after July, 1977, Prior to July 19717, the State was governed by the Constitution of 1973, hereinafter referred to as the Constitution. On 5th July 1977, the Chief of the Army Staff imposed Martial Law throughout the State. He assumed the office of the Chief Martial Law Administrator and inter alia proclaimed that the Constitution would remain in abeyance. He promulgated the Laws (Continuance in Force) Order, 1977. Article 2 (1) of the Order, stated that notwithstanding the suspension of the Constitution, the State would be, subject to the provisions of the Order and any other Order made by the President or any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, governed as nearly as might the in accordance with the Constitution. The Chief Martial Law Administrator promulgated a number of Orders including Martial Law Order No.4 which enabled him to establish Military Courts for trial of criminal cases.

4. The validity and legal effect of the imposition of the Martial Law came up for consideration before this Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff etc. (PLD 1977 S.C. 657). After a review of the events leading to the imposition of the Martial Law and examination of the relevant case‑law on the subject as well as the effect of the suspension of the Constitution, the Court, inter alia, held:

(i) the imposition of Martial Law stood validated on the doctrine of necessity and the Chief Martial Law Administrator was entitled to perform all such acts and promulgate all such legislative measures which had been consistently recognised by judicial authorities as falling within the scope of the law of necessity:

(ii) the Constitution still remained the supreme law, subject to the condition that certain parts thereof had been held in abeyance on account of State necessity; it was not a case where the old legal Order had been completely suppressed or destroyed but merely a case of constitutional deviation for a temporary period and for a specified and limited purpose, for restoration of law and order and normalcy in the country: and

(iii) the superior Courts continued to have the powers of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principle of law of necessity as set down in the judgment: their powers under Article 199 of the Constitution were still available to the full extent and might be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order, or Ordinance.

Following this judgment the High Courts continued to exercise their power of judicial review as set down in Article 199 of the Constitution even in respect of orders made by different Martial Law Authorities in the country. For instance, see Dil Muhammad v. Summary Military Court (P L D 1978 Lahore 896 (2)), Saeed Ahmad Shah v. Commissioner Chairman, Regional Transport Authority (PLD 1978 Lahore 1355), Abdus Salam v . Summary Military Court‑ (P L D 1979 Lahore 178) and Mumtaz Ali Bhutto v. The Deputy Martial Law Administrator (PLD 1979 Kar. 307).

4. On 16‑10‑1979, the Chief Martial Law Administrator who had, in the meanwhile, also assumed the office of President, made the Constitutional (Second Amendment) Order. It was published in the Gazette of Pakistan on 18‑10‑1979. The Order introduced Article 212‑A in the Constitution. The new Article enabled the Chief Martial Law Administrator to establish Military Courts or Tribunals for trial of offences punishable under Martial Law Regulations, Martial Law Orders and other laws for the time being in force and to prescribe their jurisdiction and powers. It ousted the jurisdiction of all Courts, including the Superior Courts, in respect of matters which fell within the competence of, or with regard to which cognizance had been taken by or which stood transferred to the Military Courts or Tribunals. The introduction of this new Article in the Constitution was immediately followed by the reconstitution of Martial Law Order No.4 referred to above. The reconstituted Order brought within the jurisdiction of the Military Courts almost all offences created by diverse penal laws of the country including the Pakistan Penal Code.

5. On 2 4‑3‑1981, the Chief Martial Law Administrator promulgated the Provisional constitution Order (C.M.L.A.'S order No.l of 1.981) with the object, as its preamble stated, "to make adequate interim provisions for governing Pakistan and for removal of doubts and for consolidating and declaring the law and for effectively meeting the ,threat to the integrity and sovereignty of Pakistan and its Islamic ideology". Paragraph 2 of the Order adopted and incorporated certain provisions of the Constitution, including Article 4, to which reference 113 would be made later. Paragraphs 9 and 15 of the Order, when read' together, conferred absolute immunity on the acts and orders of the Military ‑Courts, Tribunals and Authorities from challenge in the Superior Courts. As a result a parallel system of administration of criminal justice, beyond the reach of the Superior Courts, came intol existence. The Provisional Constitution Order remained in the field' till 30‑12‑1985.

6. On 2‑3‑198.1, the President made the Revival of the Constitution of 1973 Order (President's Order 14 of 1985). It effected extensive amendments ‑in the Constitution The amendments were set down in a schedule annexed to the Order, one of the amendments related to the introduction of Article 270A in the constitution. This Article validated various laws including the President's orders, Martial Law Regulations and Martial Law Orders made after the fifth July 1977, ,as well as all orders made, proceedings taken and acts done by any authority or by any person after the said date, in exercise of the power derived from, inter alia, any President's Order, Martial Law Regulation and Martial Law Order. Paragraph 4 of the Order stated that the Constitution as amended would stand revived on such day as the President would, by notification in the official Gazette, appoint. It also enabled the President to specify different dates for reviving piecemeal different provisions of the Constitution.

By a notification published in the Gazette of Pakistan on 10‑3‑1985, the President appointed 10‑3‑1985 XU De the day on which the provisions of the Constitution, barring a few Article 8, would come into force. Article 270‑A was one of the excluded Articles.

7. Consequent upon the elections held in the last week Of February, 1985, the National Assembly and the Senate were constituted, On 16‑10‑1985, the National Assembly passed the Constitution (Eighth. Amendment) Bill. It was then placed before the Senate which passed it on 21‑10‑1985. It received the assent of the President on 9‑11‑19K and thus, became an Act. Apart from amending some other provisions of the Constitution, as revived, it substituted Article 270‑A. The new Article substantially reproduced the language of the substituted Article with certain material alterations. One of the alterations related to the addition of a proviso to clause (1). The proviso empowered the President to make provisions which would facilitate, or were incidental to, the revocation of the Proclamation by which the Martial Law was imposed in the country. In exercise of this power, the Chief Martial Law Administrator promulgated Martial Law Order No.107 on 29‑12‑1985.

8. On 30‑12‑1985, the chief Martial Law Administrator issued the Proclamation of Withdrawal of Martial Law. By this Proclamation, he revoked the Proclamation of 5‑7‑1977 whereby Martial Law was imposed in the country and repealed the Laws (Continuance in Force) Order, 1977 as well as the Provisional Constitution Order. He also abolished the offices of the Chief Martial Law Administrator and other Martial Law authorities together with the Military courts and Tribunals,

9. After the lifting of the Martial Law, 5 large number of Constitutional Petitions were filed in the High Courts of the Punjab and Sind to challenge the convictions as well as other actions recorded or taken by Special Military Courts and other authorities. In the Sind High Court, the office declined to entertain the petitions on the ,ground that they were not maintainable on account of the provisions of Article 270‑A. Fourteen of these petitions were placed before a Full bench consisting of five learned Judges of the Court to consider the validity of the office objection. Similarly, in the Lahore High Court, a Full Bench consisting of three 'learned Judges, was constituted to examine the maintainability of the petitions.

10. The Full Bench in the Sind High Court unanimously overruled the office objection‑ It took the view that although it was not open, to the Courts to examine the validity of the law referred to in clause (1) of Article 270‑A, yet the acts, actions and proceedings of the Military Courts and authorities were not entirely immune from scrutiny by the Superior Courts. ‑it, however, added a rider to the effect that the scope of the scrutiny fell within narrow limits inasmuch as the High Court could review only those acts, actions or proceedings which suffered from errors of jurisdiction or were coram non judice. The Full Bench then directed the office to lay the petitions pending in the Court before a Division Bench of the Court in katcha peshi ' The judgment of the Full Bench has since been reported as Muhammad Bachal Memon and others v. Government of Sind (PLD 1987 Kar. 296). In accordance with the decision recorded by the Full Bench, the petitions which have given rise to C.As. Nos. 296 to 299 were laid before a Division Bench. These were dismissed by the Division Bench on the ground that they did not fall within the category of cases where judicial review was permissible in accordance with the judgment of the Full Bench.

11. In the Lahore High Court, seven petitions were taken together to consider the preliminary objection with regard to their maintainability in the light of the provision of Article 270‑A and Martial Law Order No.107. The Full Bench held that despite the validity conferred by clauses (2) and (5) of Article 270‑A and Martial Law Order No.107 on acts, actions and proceedings made, taken or held during the period of Martial Law, the High Court was competent to review them if they were coram non judice or suffered from errors of jurisdiction or were tainted with malice in law as distinguished from malice in fact or were in violation of any Constitutional provision One of the learned Judges sitting in the Full Bench wrote a separate judgment He thought that the scope of judicial review extended to such acts actions or proceedings also which were affected by malice in fact. However, the other two learned Judges were not prepared to go so far as he did. The judgment of the Full Bench has been reported as Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lahore 49), Here also, the Full Bench directed that the various petitions pending in the Court should be laid before the Benches, to ‑be constituted by the Chief Justice, for disposal in accordance with the law declared by it.

12. From the judgment of the Lahore High Court, the Federation of Pakistan and the Government of the Punjab have preferred joint appeals. Similarly, from the judgment of the Sind High Court, the Federation of Pakistan and the Government of Sind have filed separate appeals and petitions for special leave to appeal. Five of the appeals before us have been brought by the appellants who failed before the High Court of Sind on merits (See C.As. No.296 to 299 and C.A. No.285 of 1987).

13. On behalf of the Federation as well as the Provincial Governments, the main arguments have been addressed by the learned Attorney‑ General. His case, in short, is that Article 270‑A of the Constitution and Martial Law Order No.107 gave blanket protection to all orders made, proceedings taken and acts done during the period when the Martial Law was in force in the country and as such it is not open to the High Courts to review them on any ground whatsoever.

14. Before examining the contentions raised by the learned counsel appearing for the parties, it would be of advantage to reproduce Article 270‑A as amended by the Constitution (Eighth Amendment) Act. It reads as follows:‑

"270‑A. Affirmation of President's Orders, etc.‑‑ (1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O No.11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Ziaul Haq became the President of Pakistan on the day of the first meeting of the Maills‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution 1973 Order, 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No.20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O.No.24 of 1985) and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever:

Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.

(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, between the fifth day of July, 1977. and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation. President's Order, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notification, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in, exercise or purported exercise of powers as aforesaid, shall ,not withstanding 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.

(3) All President's Orders, ordinances., Martial Law Regulations Martial Law Orders, enactments, notifications, rules, orders or Dye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.

Explanation. ‑‑In this clause, "competent authority" means,‑

(a) in respect of President's orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature;

(b) in respect of notifications, rules, orders and bye‑laws, the authority in which the power to make, alter, repeal or amend the same vests. under the law.

(4) No suit, prosecution 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) For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.

Explanation.‑‑In this Article, "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders".

15. It will be appropriate at this stage to take notice of a contention raised by Mr. U.Niamat Moulvi who appeared on behalf of the appellant in Civil, Appeal No.285 of 1987. He argued that the Constitution (Eighth Amendment) Act, No.18 of 1985, which introduced Article 270‑A in the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part of the Constitution While elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution Order was still in force and under the Order there was no requirement that the President should give assent to the Bills passed by the Majlis‑e‑Shoora. He further contended that even though by a notification issued under section 4 of the Revival of Constitution Order most of the provisions of the Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution Order, the Constitution could not become alive again as there could not be possibly two Constitutions governing the State simultaneously. ‑

The contention of Mr. U.Namat Moulvi is clearly untenable. The sanction behind the Revival of the Constitution Order was the Provisional constitution Order itself. Article 238 of the Constitution, as revived, laid down the mode of the amendment of the Constitution. According to the said Article, amendment of the Constitution required the assent of the President. The President while giving assent to the Bill was acting in the manner as envisaged by the Revival of the Constitution Order which, as already stated, had the sanction of the Provisional Constitution Order itself. In the circumstances, the contention that the President could not give assent to the Bill of the Majlis‑e‑Shoora or there could not be concomitantly two Constitutions in force is neither here nor there.

16. During the course of hearing of these matters, Mr. Abdul Mujib Peerzada, who appeared for the petitioner in C.P.S.L.A. No.429‑K of 1981, raised the plea that the Parliament was not competent to enact Article 270‑A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the time being and thus no elaborate arguments were addressed on this plea. I would therefore refrain from expressing any views on it.

17. There is a presumption against the ouster of jurisdiction of the Superior Courts and any law which has the effect of denying access to them has to be narrowly construed for the reason that these are the fora created by the people for obtaining relief from oppression and redress for the infringement of their rights. But then where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts unhesitatedly give effect to it. Thus, in State v. Zia‑ur‑Rahman (PLD 1973 SC 49) after reviewing the case‑law on the subject Hamoodur Rahman, C.J. observed:‑

"These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principle consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster."

18. The first limb of the argument of the learned Attorney‑ General was‑ that clause (1) of Article 270‑A gave blanket protection to all laws made during the period when the Martial Law was in force and that the validation extended by the said clause encompassed not only their past operation but also their future continuance, despite any other provision to the contrary contained in the Constitution; further, the said clause ousted the jurisdiction of all Courts including the Superior Courts from examining the validity of the said laws on any ground whatsoever. He also contended that the intent of the clause was not confined to only removing doubts about the competency of the law‑maker but also conferred validity on the contents of the laws themselves.

19. So far as the question relating to the validity of the laws and the competency of the makers thereof is concerned, there can be no quarrel with the proposition canvassed by the learned Attorney General. By declaring that all laws, brought on the statute book during the period of the Martial Law, had been made validly and by a competent authority, and, further by adopting and .firming the same the intention of the Parliament clearly was to obviate all possible objections with regard to their validity or the competency of the makers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor the Lahore High Court took a contrary view on this part of the learned Attorney‑ General's argument. But then in the matters before us we are not concerned with the validity of the said laws or the competency of the makers thereof‑‑ or for that matter, with their future operation after the revival of the Constitution. These questions were raised and dealt with in another judgment of this Court which has been reported as Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). On the other hand, the issue before us is of a limited nature, that is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held while the Martial Law was in force, can be reviewed by the Superior Courts in ‑ exercise of the Constitutional jurisdiction after the lifting of the Martial Law and the revival of the Constitution.

20. It was next contended by the learned Attorney‑ General that clauses (2) and (5) of Article 270‑A gave total protection to all acts, actions or proceedings done or taken in exercise or in purported exercise of the powers derived from the laws mentioned in clause (1). While elaborating his argument, he stated that whereas the object of clause (1) was to validate all laws and legal instruments which were made or issued during the Martial Law period, the purpose of clauses (2) and (5) was to protect acts, actions and proceedings done or taken thereunder and that these clauses conferred absolute immunity upon them from challenge on any ground whatsover. He further stated that the provisions of clauses (2) and (5) were a logical complement of clause (1) inasmuch as one conferred validity on the laws and the others gave protection to acts, actions and proceedings done, taken or held in the enforcement thereof. He particularly placed emphasis on the deeming provisions of clauses (2) and (5) and argued that even if some of the acts, actions and proceedings appeared to be invalid for any reason, these were to be treated as having been done or held in good faith and to promote the object of the law under which they were taken.

21. A perusal of clauses (2) and (5) of Article 270‑A would show that in enacting them, the main object of the Parliament was‑‑

(a) to confer validity upon acts, actions and proceedings, done or taken when the Martial Law was in force, and

(b) to oust the jurisdiction of the Courts from examining their validity.

Here a serious question arises for, consideration whether the validation and the concomitant ouster of jurisdiction of all Courts envisaged by the Parliament were intended to cover even such acts, actions and proceedings also as were illegal or unsustainable in the context and reference of the laws under which they were ostensibly made or taken ‑or were on their very face mala fide or coram non judice or suffered from excess or lack of jurisdiction. If the contention of the learned Attorney‑General is upheld, the answer would be in the affirmative. However, both the High Courts of the Punjab and Sind did 'not accept this contention in its entirety and in doing so they heavily relied on the observations of this Court in State v. Ziaur Rahman (PLD 1973 SC 49) and Federation of Pakistan v. Saved Ahmad Khan (PILO 1974 S.C. 151). These two precedent cases related to the second Martial Law period which fell between March 1969 and ‑April, 1972 and ended with the enactment of the Interim Constitution. To provide legal cover to acts, actions and proceedings which, were done or taken during the Martial Law, the Interim Constitution, in Article 281 (2), contained a validation clause which reads 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 25th day of March 1969 in exercise of the powers derived from any President's Order, Martial Law Regulation, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of any order made or sentences passed by any authority in the exercise of or purported exercise of powers as aforesaid, shall be deemed to be and always to have been ,validly made. taken or done."

22. After the Interim Constitution came into force, a number of persons who had been tried and convicted by the Military Courts, challenged their convictions through writ petitions in the Lahore High Court. A Full Bench of the Court accepted almost all the petitions whereupon the State preferred an appeal in this Court. On behalf of the State, an argument similar to the one raised before us by the learned Attorney‑ General was canvassed. It was contended that Article 281 (2) barred all legal proceedings of any kind whatsoever in any Court in respect of any orders made, proceedings taken or acts done even if they were in purported exorcise of powers derived from Martial Law Orders ‑or Regulations and therefore the High Court, was not competent to inquire, into the validity of any proceeding taken or action done and that the immunity was so complete that even mala fide acts or acts without jurisdiction could not be called in question.

This argument was rejected by the Court. Hamoodur Rahman, C.J., who wrote the leading judgment, observed:‑

"* * * The conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by the Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers does not have the effect of validating acts done coram non judice or without jurisdiction or mala fide."

A contention was also raised before the Court that the expression "purported to be done" or "done in purported exercise of powers" as occurring in the Article was intended to cover acts which were not strictly related to the laws under which they were done as well as those which were mala fide. This contention too did not find favour with the Court and Hamoodur Rahman, C.J., ruled:

"I am therefore of the opinion that the words "purported to be done or done in the purported exercise of powers" cannot cover acts which were not done by person empowered under the statute or legislature measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or by practising of fraud upon the statute for a colourable purpose."

23. Soon after the judgment in Ziaur Rahman's case was delivered the President amended clause (2) of Article 281, ibid, by the Constitution (6th Amendment) Order, 1973. The amendment added a deeming clause as well as an ouster of jurisdiction clause to the Article. Before the amended Article could receive fresh interpretation from the Courts, the Interim Constitution was replaced by the Constitution of 1973. Article 281 (2) of the Interim Constitution was reproduced in clause (2) of Article 269 of the new Constitution with some additions clearly with the object of further strengthening the provisions relating to validation and ouster of jurisdiction of the Superior Courts. Thus, clause (2) of Article 269 read 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, between the twentieth day of December, one thousand nine hundred and seventy‑one, and the twentieth day of April, one thousand nine hundred and seventy‑two (both days inclusive) 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, 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 provision of clause (2) of Article 281 of the Interim Constitution, as amended, and clause (2) of Article 269 of the Permanent Constitution came up for construction in the case of Saeed Ahmad Khan, ibid. In this case certain civil servants who had been removed from service during the Martial Law period, challenged the orders of termination of their services in the Lahore High Court. On behalf of the Federation, an objection with regard to the maintainability of the petitions was taken. This objection was overruled by the High Court. The Federation then filed an appeal. in. this Court'. The question for consideration before this Court was whether the amended clause: (2) of Article 281 of the interim Constitution and clause (2) of Article 269 of the Permanent Constitution had, completely ousted the jurisdiction of the Courts from examining the validity of orders by which they had been removed from service. On behalf of the Federation it was again contended that actions taken under the Martial Law Regulations stood saved and that the intention of the law‑giver in enacting the said clauses was that they should be fully protected from scrutiny by the Superior Courts. This Court once again rejected this contention and held:

"The result, therefore, to which we have arrived as a result of the interpretation of the provisions of Article 281 of the Interim Constitution as amended by President's Order No.3 of 1973 and Articles 269 and 270 of the Permanent Constitution, is that we are still unable to agree upon the accepted principles of construction to which we have adverted earlier, that act, orders or proceedings, which are done, taken or made without jurisdiction, mala fide or coram non judice, have been saved from the scrutiny of the courts by the ouster clause now incorporated in these, provisions. However wide a meaning is given to the word "validly", the result would still be the same, for, the, validity that has been conferred is to, acts done or purported to, be done in the exercise of or in the purported exercise of powers derived from, such Orders, Regulations, enactments, rules, orders, bye‑laws, etc. and to nothing else .

24. As already noticed, the language used in clause (2) of Article, 270‑A is identical with that of clause (2) of Article 269 of the Constitution. We therefore, see no reason at all why Article 270‑A; (2~ should be construed differently from the manner in which Article 269 (2) was interpreted in Saeed Ahmad Khan's case. We are also not persuaded to hold that the construction placed on Article 2J9 (2) in Saeed Ahamd Khan's case iq in any way wanting or needs reconsideration. It, goes without saving that while drafting clause (2) of Article 270‑A, the law‑makers were aware of the decision of this Court in Saeed Ahmad Khan's case, The very fact that they aid not think it fit to express clause (2) of Article 270‑A in a different language 'is indicative of their intention that they did not desire the immunity and the ouster of jurisdiction to extend beyond the limit spelled out by this Court in the above‑cited case.

25. The learned Attorney‑General strongly relied upon the deeming provisions contained in clause (5) L)l Article 27U‑A and urged that when this clause was read with clause (2) it would become inevitable but to presume that all acts, actions and proceedings referred to in clause (2) were done or taken validly and in good faith. without any ulterior motive or colourable exercise of power. He argued that clause (5) served two purposes; first, to preclude any attack on the acts, actions or proceedings relatable to the Martial Law period on the pleas of mala fide coram non judice and lack of jurisdiction and second, to strengthen the validity extended to the said acts, actions or proceedings. Thus, he contended that the combined effect of clauses (2) and (5) was to shut out all conceivable grounds upon which the Courts could possibly proceed to examine the validity of the act actions and proceedings done or taken during the period of the Martial Law. He also argued that the legal fictions created by the said clauses should be given full effect and the necessary consequences flowing therefrom must be accepted, to matter how implausiable or repulsive they might be. In this context, he referred to the observations of Lord Asquith in East End Dwelling Company Ltd. Finsbury Borough Council (1952 A.C. 109) to the effect that;

"The statute says that you must imagine a certain start affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to t inevitable corollaries of that state of affairs".

He also relied upon the observations of this Court in Mehreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 S.C 397) where it was stated that when a statute contemplated that a state of affairs, should be deemed to have existed, it clearly proceeded on the assumption that in fact it did not exist at the relevant time but by a legal fiction it was to be assumed that it did exist. basing his argument on these observations, the learned Attorney‑General. stated that the deeming provision clauses (2) and (5) had the effect of validating even those acts, actions or proceedings which were otherwise invalid or tainted with mala fides.

26, The contention of the learned' Attorney‑ General based as was on the effect of the deeming provisions contained in clauses and (5), ibid, received qualified acceptance from the Full bench the Sind High Court which took the view that the said clauses ha the effect of precluding any inquiry by the Courts on the question whether the acts, actions or proceedings complained of were mala fide or were not intended for the purposes for which they were made or taken. But then it went on to hold that the scope of the deeming provisions did not extend to acts which suffered from lack jurisdiction or were coram non judice. In this context, Zahoorul Haqu J. who wrote the main judgment, observed: ‑

Therefore, the effect of this clause that is, clause (5), appear to be that although an action may not appear to have be taken in good faith and for the purpose to be served thereby yet this clause shall oblige us to treat it as done in good faith. And again even though the action may not appear have been for the purpose for which it was intended to under the statute yet this deeming clause, which is a part the Constitution itself, will not leave it open to the Courts to anyone else to declare that the action was not taken f the purpose provided in the statute, but on the other ha to treat it as the action taken for that purpose.

It, therefore, appears that the legislature had closed the do of and scrutiny to the extent of the challenge based on ma fide nature of the actions where a person taking action account of some prejudice or illwill against the aggrieved person or an action taken for the purpose of benefiting the doer the action for his personal benefit or for the benefit of relations

And friends‑‑ or still art action which , is not for the purposes 'intended in the statute under which it is taken but is apparently for a different or colourable collateral purpose or is a fraud upon the statute according to the allegations of the petitioner, are saved and it is no more left open to make any inquiry and the Constitution declares them to be done in good faith and also for the purpose for which it was meant to be.

It is well known that good faith is converse of malice which literally means "in bad faith". Therefore, indirectly this clause 5 of Article 270‑A does provide a restriction to the scope of ‑enquiry under Article 199 of the Constitution. The result, therefore, appears to be that the constitution has now forbidden a challenge to such actions on the basis of mala fides also and thus the scope of enquiry, which had been left open under clause (2) in respect of mala fides coram non judice and without jurisdiction actions, is now, by clause (5) closed in respect 'd' of mala fide actions also. Therefore, the purpose of enquiry under Article 199 is now narrowed down to only two types of actions namely coram non judice and without jurisdiction. There is no other provision in the Constitution or Article 270‑A which could be used for the purpose of excluding jurisdiction under Article 199 of the Constitution and, therefore, it appears to us that such actions as are specified under clauses 2 and 5 of Article 270‑A can yet be brought under challenge on the. limited ground of being coram non judice or without jurisdiction. It is, however, a different matter whether the challenge on that basis can succeed before the admitting bench or not."

27. The Lahore High Court placed a somewhat restricted interpretation on clause (5). Two of the learned Judges in the Full Bench drew a distinction between malice in fact and malice in law. They thought that clause (5) gave validity to acts where malice in fact alone was alleged and that it did riot cover those acts where malice in law was proved. The third Judge (Manzoor Hussain Sial, J took the view that the legal fiction created by clause (5) would riot extend to even those acts where malice in fact was also found if, exist. As regards acts, actions or proceedings which were alleged to be coram non judice or without jurisdiction, Muhammad Afzal Lone, J. , speaking for the majority, observed:

"For the time being‑confining to clause (5) only we may observe that the ouster of jurisdiction in relation to acts Coram, non judice and without jurisdiction, is neither visible from. this clause expressly nor its hinging is susceptible of such meaning by necessary implication The purpose of clause (2) is that, which is deducible from its plain language and has been alluded to by us in the earlier part of this judgment. Clause (5) merely' re‑inforces and fortifies that which is already Included in clause (2) and does not enlarge its scope so as to make acts coram non judice and without Jurisdiction fall within the protection contemplated thereby. Further more, the validity conferred by clause (2) cannot be. absolute. If it is considered absolute the right of filing petition or application for review under para 6 of martial law order no.107 against the sentences awarded by military courts which had not been confirmed on or before the date on which article 270-a came into force and the remedy to submit a petition under para 7 to the President the Governor as the case may be against such sentences will not be available to the aggrieved party. The ouster clause does not affect the' rights to prefer such review application and petition. In this view of the matter, the protection given under clause (2) is not unrestricted."

Mr.S.M. Zafar who addressed the main arguments on behalf of the respondents in the appeals preferred by the Federation and the Provincial Government did not question the interpretation placed by the majority of the learned Judges constituting the Full Bench in the Lahore High Court on the scope of clauses (2) and (5) of Article 270‑A. However, he contended that clause (5) was in the nature of an appendage to clause (2) and unless an act 'qualified' for validity or immunity under clause (2), the legal fiction created by clause (5) would not apply to it, On the other hand, Mr. Abdul Mujib Peerzada raised the issue that clause (5) of Article 270‑A had been enacted to protect, validate and indemnify those persons who had acted with malice and to save them from legal action but that it was not meant To perpetuate the injustice done to those who were made to suffer from their illegal acts.

28. In our Constitutional history there have been three periods when the entire country was placed under the Martial Law, On each occasion when the Martial Law was lifted, provisions were made either in the Constitution or otherwise to validate the acts and actions done or taken during that period. It will be noticed that none of the validiating provisions made on earlier occasions contained a clause similar to clause (5), ibid. It is in this sense an entirely new provision, By the very terms in which it is expressed it is an appendage to clauses (1), (2) and (4) of Article 270‑A. It seems to me that for a proper appreciation of its true scope, it is necessary to take notice of the background in which it was enacted by the Parliament. It is important to note that on 5‑7‑77 when the Martial Law was enforced in the country, the Chief Martial Law Administrator did not abrogate the Constitution but merely placed it in abeyance. Unlike what happened earlier when the imposition of the Martial Law marked the ushering in of new legal orders, on this, occasion the position was radically (Different. The difference was clearly spelt out by the Chief Martial Law Administrator himself in his very first address to the Nation ,when he particularly pointed, Out that he was not abrogating the Constitution, but merely suspending only certain provisions thereof, This Court, too, ill the case of Begum Nusrat Bhutto, ibid, referred to This difference when it observed that "this is not the case where the Old Legal Order has been completely suppressed or destroyed but merely a case of constitutional deviation for a definite period and for a specified and limited object, namely, the restoration of law and order, and 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". Clause (5) was made a part of the Constitution at a time when the phase of 'constitutional deviation was coming to an end and the Constitution was about to be revived. There was every likelihood that the laws made and actions taken there under during the Martial law period would,. on the revival or pre‑Martial Law Legal Order, be tested on the anvil of the Constitution on diverse grounds including, those of malafide and colourable exercise of power. The Parliament had before it two judgments of this Court; namely Asma Jilani v. The Government of the Punjab and another (PLD 1972 S.C. 139) and Be gum Nusrat Bhutto 'v,.)' Chief of Army Staff and Federation of Pakistan (PLD 1977 S.C 657). In Asma Jilani s case, General Muhammad Yahya Khan who had imposed the Martial Law in 1969, was held to be a usurper and the Court declared that it would condone but not legitimize the laws made and the acts performed under his administration strictly in the light of the doctrine of necessity. Similarly, in Begum Nusrat Bhutto s case, ibid, the test of the validity of the laws and the acts done during the period of "constitutional deviation" was again prescribed to be "the principle of law of necessity" as delineated in the judgment itself. Although in the Provisional Constitution Order 1981, provisions were made to annul the legal effect of the judgment in Begum Nusrat Bhuttos, case but with the repeal of the Order and the revival of the Constitution vires of the Order itself on the basis of the said test was likely to be challenged. The Parliament was thus faced with a situation where if extensive cover was not provided to the laws, acts, actions or proceedings which were made, done or held the whole system of Government founded on 'constitutional deviation' was likely to be called in question by innumerable and interminable series of Court actions, leading to utter confusion in body politic. In the circumstances, the Parliament in its wisdom thought it fit in this context to phrase clause (1) as widely as possible, borrow, clause (2) from earlier validation laws and add a new deeming provision by way of clause (5). But does this mean that while giving protection to the dispensation that came to prevail as a result of constitutional deviation the Parliament also intended to validate and give immunity to such acts, actions and proceedings also as were illegal or indefensible under that dispenstaion itself. The proposition canvassed by the learned Attorney" General would lead to an affirmative conclusion but it is difficult to agree with him. It is to be noticed that throughout the period of Martial Law, Article 4 of the Constitution remained operative. In fact, by Article 2 of the Provisional Constitution Order, this Article. was specifically made a part thereof. It reads as follows: ‑

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 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 .‑

In Mian Jamal Shah v. The Member Election Commission PLD 1966 SC 1 while commenting on Article 2 of the Constitution of 1962 which was worded in identical language as Article 4, Kaikaus, J. observed:

"It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2, enact that whatever action a particular person may take 'shall be immune from challenge. All persons exercising authority in Pakistan must do so only in accordance with law."

During the Martial Law when the fundamental rights stood suspended, Article 4 furnished the only guarantee or assurance to the citizens that no Action detrimental to the life, liberty, body, reputation property of any person would be taken except in accord law. Acts, actions or proceedings. which suffered from excess or lack of jurisdiction or were Coram non judice or mala fide (be it malice in fact or in law) could hardly be treated as those in accordance with law. They were thus bad even under the system which was validate by Parliament under Article 270‑A on account of violation of the assurance given by Article 4. It is difficult to concede that by C enacting clauses (2) and (5) the Parliament had intended to validate such acts, actions or proceedings or to put them beyond the reach of the Courts or to deprive the persons who had suffered there under of any remedy or relief whatsoever. There is a presumption that Legislature does not perpetuate inequity or injustice and there is no reason why such a presumption should not be invoked while interpreting clauses (2) and (5) of Article 270‑A. In Zia‑ur‑Rehman's case, ibid, Hamoodur Rahman, C.J., observed:‑

As a general rule it is unthinkable that any Legislature, consisting of civilised persons would in normal circumstances seek to perpetrate a manifest injustice by validating acts done in excess of jurisdiction or in abuse of jurisdiction or clearly in bad faith and it is for this reason that the Courts, out of respect for the Legislature, start with the presumption that the Legislature has to be imputed a just intention unless ‑the words of ouster used are either so express or so unequivocal that it must come to the contrary conclusion. The Legislature, however, even in abnormal circumstances, does not use such express or clear words or words which would necessarily imply such an unfair or unjust intent but resorts to legislative devices of incorporating "deeming" clause of extending the validity to even acts "purported" to be done in exercise of statutory powers and then to add a clause saying that no Court shall call in question such acts."

In Saeed Ahmad Khan's case, ibid, also the Federation had sought a wider interpretation of the validation and deeming clauses of Article 281 of the Interim Constitution and Article 269 of the Constitution with the plea that if the said Articles were not construed widely there was the possibility of chaos and the Government was likely to face great difficulty. This contention was once again rejected by Hamoodur Rahman, C.J with the observation:

"These are more imaginary than real. We do not envisage any such calamity. If a law is made for the implementation of a policy of reforms and that law, though of doubtful validity has been subsequently validated, then all acts legitimately and honestly taken in the exercise of powers given by those laws will also be valid; but if an authority concerned has taken action in fraud of that law, that is to say, mala fide, we see no legitimate reason why the Government should be anxious to Protect such a dishonest officer or authority. The cause of the reform will not be advanced by such dishonest exercise of power by individuals out of personal malice or for personal gain. Indeed, if an office has so acted, we would Government to see that the officer concerned is 'appropriately punished and the injustice done to the unfortunate victim righted. We do not appreciate the anxiety of the appellant Government to protect such mala fide actions."

Now that There is a commitment on our part To seek inspiration in all our affairs from Islamic values the presumption to which Hamoodur Rahman,,C,J. , referred in Ziaur Rahman's case becomes even stronger and unavoidable.

29. Apart from that, it will be noticed that clause (2) of Article 270‑A, as it stands worded, includes within its purview sill orders made, proceedings taken or act done by any authority or by any person during the period of the Martial Law in exercise of the powers derived from any Proclamation, Presidents Order, ordinances, Martial Law Regulations, Martial Law Orders, enactments, notification s, rules, order or bye‑laws. Similarly, it also encompasses all orders made, proceedings taken and acts done in execution of or in compliance with any order made, or sentence passed by any authority in the exercise or purported exercise of the aforementioned powers. Now during the period of the Martial Law the Superior Courts did continue to function. Their jurisdiction was ousted only in respect of orders made or actions taken by the Martial Law authorities and the Military Courts. As regards order., action and proceedings taken by the, other authorities in the country, there was no clog on their jurisdiction They thus, continued to exercise their power of judicial review in respect of the acts, actions and proceeding made taken or held by the other authorities. if the argument, of the learned' Attorney‑ General is taken to it!, logical conclusion, all such acts, actions and orders set aside by the Superior Courts in exercise of their power of judicial review, would stand revived, for the words "notwithstanding any judgment of any Court" as occurring in clause (2) of Article 270‑A are too strong to yield any other result; further, all pending constitutional petitions challenging the legality of the orders of non‑Martial Law authorities or Courts would become infructuous. This could not possibly be the intention of the Parliament in enacting the clauses (2) and (5). Even the learned Attorney‑General did not care to canvass such a proposition. Had it done so, this would have been indeed an impossible position to take.

30. Taking into account the background in which Article 270‑A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'constitutional deviation'; it is difficult to interpret it as conferring valid and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to 'draw a distinction between malice in fact and malice in law. I

31. The second limb of the argument of the learned Attorney general is founded on paragraph 4 of the Martial Law (Pending Proceedings) Order, 1985, also known as Martial Law Order No.107. As during the hearing of the present cases references were made to different provisions of this Order, it will be of advantage to reproduce it in extenso It reads as follows:‑

(1)This order may be called the Martial. Law (Pending Proceedings) order, 1985.

(2) It shall come into force at once.

(3) In this Order, unless there is anything repugnant in the subject or context,‑‑

(a) "Appointed day" means the day on which the Proclamation of the fifth day of July, 1977, is revoked;

(b) "Martial Law" means the Martial Law imposed by the Proclamation of the fifth day of July, 1977;

(c) "Martial Law Authority" includes any person or body of person or any Court authorised by or under any Martial Law Regulation or Martial Law Order to perform any function or to exercise any power under such Regulation or Order; and

(d) "Martial Law period" means the period commencing the fifth day of July, 1977, and ending on the day of Proclamation of the fifth day of July, 1977 is revoked.

3. (1) All Martial Law Regulations and Martial Law Orders, made and promulgated on or after the fifth day of July, 1977, by the Chief Martial Law Administrator and all Martial Law Orders made and promulgated by the Martial Law Administrators of Zones, A, B, C, D and E as mentioned in M.L.O. 3 not with standing its cancellation on or after the said day, other than those specified in the Schedule to this Order, shall stand cancelled on the appointed day.

(2)In the Martial Law Orders and Martial Law Regulations specified in the Schedule to this Order, for the expression "the Chief Martial Law Administrator", the term "the President", for the expression "a Martial Law Administrator", the term "the Governor concerned" and in case of Martial Law Administrator Zone 'E the Force Commander Northern Areas and for the expression "Military Court", or "Summary Military Court" or expression "Criminal Court of competent jurisdiction" shall stand substituted on the appointed day and the said Martial Law Regulations and Martial Law Orders shall have effect with such adaptations and modifications as the circumstances and the implementation of the said Martial Law ‑regulations and Martial Law Orders may require.

(3) Notwithstanding the cancellation of Martial Law Order No,5 and Martial law Regulation No.14, contravention of any provision of a Martial law Regulation or Martial Law Order specified in the Schedule shall, continue to be punishable with the penalties specified in the said Martial Law Order No.5 and Martial Law Regulation No,14.

4. The cancellation of the Martial Law Regulations and Martial Law Orders referred to in clause (1) of paragraph 3, shall not affect the previous operation thereof, and anything done, action taken, obligation, liability, penalty or punishment incurred, or proceedings commenced shall be deemed to have been properly and validly done, taken, incurred or commenced, as the case may be.

5. (1) Every case pending immediately before the appointed day before a Special Military Court or a Summary Military Court shall stand transferred to the Criminal Courts which would have jurisdiction to try the offence constituted by the facts of that case under the ordinary law.

(2) A case transferred to a Criminal Court under sub‑paragraph (1) shall be tried by it in accordance with the procedure applicable to trial and transfer of such a case under the ordinary law.

6. (1) Every case which, having been decided and disposed of by a special Military court is, immediately before the appointed day, pending for confirmation of the findings or , the sentence or of both, and every petition or application for review in respect thereof, so pending, shall, on or after the appointed ,day, be confined, or dealt with and disposed of, as the case may be, by the President if the sentence passed by the Special Military Court is that of death or amputation of hand and, in other cases, by the Governor concerned, or the Force Commander Northern Areas as the case may be.

(2) Every case which, having been disposed of by a Summary Military Court is, immediately before the appointed day pending for counter‑signature, and every petition or application for review in respect thereof, so pending, shall on or after the appointed day, be countersigned or dealt with and disposed of, by the Governor concerned, or the Force Commander Northern Areas as the case may be.

7. (1) Any person who deems himself aggrieved by the sentence passed by a Military Court may submit a petition to the President, if the sentence is one of death or amputation of hand and, in all other cases, to the Governor of the Province concerned, or the Force Commander Northern Areas in case of Zone E.

(2) On such a petition, the President or, as the case may be, the Governor, or the Force Commander Northern Areas may annul the proceeding s or, with or without any conditions, grant pardon or remit, reduce, commute or suspend any sentence or reject the petition:

Provided that a Governor or, the Force Commander Northern Areas as the case may be, shall exercise the powers under this sub‑paragraph subject to the prior approval of the President.

8. (1) Every sentence of death passed during the Martial Law period by a Special Military Court which was not promulgated and executed during the Martial Law period may be promulgated and executed under the order of the Provincial Government.

(2) Every sentence of imprisonment passed during the Martial Law period by a Special Military Court or a Summary Military Court which was not put into execution during the Martial Law period may be put into execution under the warrant of the District Magistrate of the District in which the person under sentence may be found; and every such sentence shall commence to run on the day on which the person under sentence is received into the prison to which he is committed by such warrant.

(3) Every sentence of fine passed during the Martial Law period by a Special Military Court or a Summary Military Court which was not carried out during that period may be carried out by the District Magistrate of the District in which the person under sentence resides, as if it were a sentence of fine imposed by him under the Code of Criminal Procedure, 1898 (Act V of 1.898) provided that the provisions of Chapter XXIX of the said Code shall not apply to any such sentence,

9. For the disposal of cases under this Order the President or a Governor, or the Force Commander Northern Areas as the case may be, shall exercise the same powers and adopt and follow the same procedure as were exercised, adopted and followed by the Chief' Martial Law Administrator or a Martial Law Administrator before the appointed day subject to the provisions of this Order.

10. The provisions of this order shall have effect notwithstanding the repeal of Martial Law Regulations or Martial Law, Orders." As provided by para 3(l) there is a Schedule attached to flit Order which contains the particulars of the Martial Law Orders and Martial Law Regulations issued by the Chief Martial Law Administrator and Martial Law Orders issued by the Martial Law Administrators. None of the Regulations and Orders included in the Schedule is relevant for our purpose; all that needs to be noticed is that Martial Law Order No.107 is not one of the Orders included in the Schedule.

32. The Order under consideration was promulgated on 29‑12‑1985. The Proclamation of Martial Law of 5‑7‑1977 was revoked on 30‑12‑1985, It was argued by Mr. S. M. Zafar that with the revocation of the Proclamation this Order also stood cancelled as it was not one of the Orders included in the Schedule. Support for this contention was sought from paragraph 3( 1)of the order which stated that all Martial Law Orders and Regulations made and promulgated on or after the fifth day of July 1977 by the chief martial Law Administrator and all Martial Law Orders made and promulgated by the Martial Law Administrators of different zones, except those specified in the Schedule, would stand cancelled on the appointed day. This contention is clearly misconceived as it does not take into account paragraph 10 of the Order which lays down that the provisions of the Order would have effect notwithstanding the repeal of the Martial Law Regulations or Martial Law Orders. Paragraph 10 has to be read alongwith paragraph 3 (1), ibid. If this is done, it would become clear that the Order had survived the cancellation of the Martial Law Order and Regulations as envisaged in paragraph 3 (1).

33. The learned Attorney‑General contended that paragraph 4 of the order had the effect of validating all acts, action and proceedings done, taken or held under an), Martial Law Order or Regulation and that the validity extended by this paragraph embraced such acts, action, and proceedings also which were improperly or invalidity done, taken or held. In support of his contention, he referred to Article 295 of the Interim Constitution and section 6 of the General Clauses Act which were examples of pari materia legislation and pointed out the differences in their respective languages. In this context, he stated that the word "duly" which occurred in Article 295 and section 6, ibid, was missing in paragraph 4; similarly, while drafting paragraph 4, the word "properly" had been added and that this word did not find mention either in Article 295 or in section 6. He argued that the omission of the word "duly" and the addition of the word "properly" were deliberate and if effect was given to these changes it would become clear that the validity envisaged by paragraph 4 was to extend even to such acts also which were not duly done and these were to be deemed to have been properly done .He also read out The meanings of the expressions "duly" and "properly" as given in the common dictionaries and law lexicons. He also contented that Martial law Order No.107 had the status of extra constitutional Legislation as it fell within the category of laws which had been affirmed and adopted by the Parliament through a Constitutional amendment.

34. It is difficult to agree with the learned Attorney‑ General that Martial Law Order No.107 has the status of an extra constitutional legislation. It was admittedly made by the Chief Martial Law] Administration exercise of the power given to him by the proviso to clause (1) of Article 270‑A. After the lifting of the Martial Law the sanction behind its continuation in the statute book was clause! (3) of the same Article. A perusal of sub‑clause (b) of the same clause would show that the Parliament had divided the laws 'made' during the Martial Law period into two categories by providing different modes for their amendment. For this purpose a separate Schedule known as the Seventh Schedule was added to the Constitution. The laws included in the new Schedule could be amended only in the manner provided for the amendment of the Constitution itself Whereas the laws falling in the other category could be amended like any other sub‑constitutional legislation. Admittedly, Martial Law Order No.107 was not included in the Schedule. It cannot therefore be treated as one possessing the status of an extra constitutional legislation.

35. In my opinion, for the disposal of the issue before us nothing turns on the omission of the word 'duly' or addition of the word 'properly' in paragraph 4, ibid. A careful reading of this paragraph would show that the words "previous operation" as occurring therein furnish the test for determining the kinds of acts, actions, obligations, liabilities, penalties, punishments or proceedings which fall within its ambit. Acts, action or proceedings which could not be treated as, relatable or having nexus with the 'previous operation' of the Martial, Law Orders and Regulations would hardly fall within the protection offered 'by this paragraph. As observed by Kaikaus, J., in Abdur Rauf v. Abdul Hamid Khan P L D 1965 SC 671 no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute.: Apart from that , if, view of the assurance giver, to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or were coram non judic could not conceivably be regarded as done, taken or held in 'connection with the previous operation of a Martial Law Regulation or Martial Law Order. It is also doubtful if the said assurance could be circumvented by ex post facto sub‑constitutional legislation by validating acts or proceedings which were patently illegal at the time they were performed. It is difficult to believe, in the absence of clear words to the contrary, that by paragraph 4 it was intended to legalise them also.

36. Paragraphs 5, 6, 7, 8 and 9 of the Martial Law Order No.107 provide the manner of disposal of criminal cases which were tried by the Special or Summary Military Courts but had not yet been finally concluded on the day when the Martial Law was lifted. A perusal of paragraphs 5 and 6 will show that such cases have been divided into two categories. The first category relates to those where the trial was not yet complete before the said day. The second category comprises cases where the proceedings before the Military Courts stood concluded but their fin‑dings or sentences had not yet been confirmed or countersigned by the authorities concerned. So far as the first category is concerned, paragraph 5 (1) provides that the cases falling therein would stand transferred to the ordinary Criminal Courts. As regards the second category, paragraph 6 (1) saved the proceedings already held by the Military Courts and specified the authorities which would be, after the withdrawal of the Martial Law, competent to confirm or countersign the findings or sentences.

37. An argument was raised by Mr. Fakhr‑ud‑Din 'Ibrahim and Mr. Abdul Mujeeb Pirzada that cases which fell in the second category had also to be treated as pending cases and as such, by operation of paragraph 5 (1) they also stood transferred to the ordinary Criminal Courts; consequently, promulgation of sentences in such cases subsequent to the lifting of the Martial Law was illegal. Support for this contention was sought from section 119 of the Army Act which states that no finding or sentence of a general, district or field general court‑martial shall be valid except in so far as it may be confirmed as provided by this Act.

38. It is difficult to sustain the contention of the learned counsel. No doubt, by operation of clause (1) of paragraph 5, all cases pending before a Special Military Court or Summary Military Court stood transferred to the ordinary Criminal Courts but this clause has to be read in conjunction with paragraph 6 (1) which specifically provides for the disposal of cases decided and disposed of by Military Courts but pending merely for lack of confirmation of the findings or sentences or countersignatures. Obviously, such cases could not be treated as pending cases within the meaning of clause (1) of paragraph`‑ 5. In support of the view which I take I would refer to three decisions of this Court reported as Muhammad Akram Khan v. Islamic Republic of Pakistan P L D 1969 SC 174, Karamat Ali v. State P L D 1976 SC 476 and Muhammad Din v. State P L D 1977 SC 52. In these cases the same argument in similar circumstances was addressed but was repelled by this Court.

39. It was then contended that the validity given to proceedings under clause (2) of Article 270‑A was intended only for those proceedings which stood finally concluded before its enactment but cases where the findings and sentences had yet to be confirmed or countersigned fell outside its purview. It was pointed out that with the revival of the Constitution and lifiting of the Martial Law the Fundamental Rights stood restored. Article 25 of the Constitution stated that all citizens were equal before the law and were entitled to equal protection of law. The trials held by the Military Courts violated this fundamental right not only for' the reasons that the procedures followed by these Courts were much harsher than those obtaining in the ordinary Criminal Courts and that there was no substantial right of appeal but also on the ground that there was no reasonable criterion for selection of cases for transfer to those Courts.

40. In view of the order which I propose to make in the matters before us it is not necessary to offer any comments on the contention of the learned counsel. It may be mentioned that this contention, based as it is on the alleged violation of a fundamental right, was not canvassed before the High Courts. Apart from that its proper examination will require an inquiry into facts in each case separately R and this exercise cannot be carried out in this Court. It will be more appropriate if the learned counsel take up this plea before the High Courts.

41. For the reasons stated above, I would dismises Civil Appeal No.384 of 1987 and C.P.L. As. Nos.55‑R and 56‑R of 1988 which have been preferred by the Federation and the Province of Punjab from the judgment of the Lahore High Court and Civil Appeals No.300 to 307 of 1987 which have been filed by the Federation from the judgment of the Sind High Court. I would also dismiss C.P.S.L.As. No.475‑K, 476‑K and 477‑K of 1987 and 43‑K, 44‑K, 47‑K, 54‑K and 55‑K of 1988 which have been preferred by the Government of Sind from the same judgment of the Sind High Court.

42. As already mentioned, after the office objection was overruled, a number of petitions were placed before a Division Bench of the Sind High Court in Katcha Peshi for disposal in accordance with the view taken by the Full Bench. In Civil Appeals Nos.296, 297, 298 and 299, the Division Bench examined the pleas of defect of jurisdiction and coram non judice' alone and after finding that these had not been established, dismissed the constitutional petitions. As it has not been possible to sustain. the narrow view taken by the Full Bench with regard to the scope of judicial review the judgments and orders of the Division Bench in these three appeals are set aside and the matters are remanded to the High Court for fresh decision on the other pleas raised by the appellants in their constitutional petitions.

43. C.P.S.L. As Nos. 429, 432, and 433 were filed by persons who were not satisfied with the view taken by the Sind High Court with regard to the scope of judicial review. The petitions are converted into appeals and they are allowed. The constitutional petitions relating to these matters will now be disposed of by the High Court in accordance with the observations made in this judgment.

44. Similarly, C.P.S.L.A. No.33 of 1988 has been filed by the petitioners who were not satisfied with the majority judgment of the Lahore High Court in Ghulam Mustafa Khar's case. This petition is converted into appeal and is allowed. The constitutional petition relating to this matter will now be decided by the High Court in accordance with the observations made in this judgment.

45. C.A. No.285 stands on an altogether different footing. The relevant facts in this appeal have‑ already been narrated in paragraph 2 of this judgment. As already noticed, the appellant's appeal before the Tribunal was dismissed on the ground of limitation. It was open to him to prefer an appeal to this Court but he did not care to do so. I would accordingly dismiss this appeal but make no order as to costs.

46. In all the matters disposed of by this judgment, the parties will bear their own costs.

M.B.A/F‑77/S Order accordingly.