SAGHIR AHMAD NAQVI Versus PROVINCE OF SIND

1. The Petitioner through this petition has prayed the following relief s : ‑

(i) To admit, allow and accept this petition.

(ii) To declare and hold that the said notification dated 10‑3‑1980 issued under MLO 55 (Zone C) stands affirmed, adopted and declared in its effect and operation in consequence of which MLO‑55 was not extended beyond 30‑6‑1980;

(iii) To further declare and held that all acts done, notifications or communications issued by the respondent and direction given by the respondent No.l to the petitioner and the interview of the petitioner held by respondent No.2 at any time after 30‑6‑1980 was of no effect whatsoever and had no legal authority or validity, and the same are in contravention of Article 270‑A of the Constitution.

(iv) To further declare and hold that the said summary, purporting to have been signed on 1‑9‑1982, is of no effect whatsoever and is not liable to be taken into consideration to any intent or purpose for want of any legal warrant or authority and having been prepared, made and signed unlawfully;

(v) To grant any other relief as the nature of the case may require and may be deemed as lawful, equitable, proper and expedient in the interest of justice;

(vi) To award costs of this petition, to the petitioner.

2. The facts leading to the filing of the above petition are that on 7‑4‑1971, the petitioner was appointed as ad hoc Civil Judge on the terms and conditions that "the appointment will last till the candidate selected on regular basis by the Sind Baluchistan Public Service Commission, Hyderabad became available and that the ad hoc appointment will neither confer any right for regular appointment nor the service will count towards seniority if subsequently selected for regular appointment". However, by a Notification No. S&GAD 17‑1‑1973 dated 4‑11‑1974, the Government of Sind was pleased to appoint the petitioner as Civil Judge on regular basis with immediate effect.

3. On promulgation of Martial Law Order 55 by the Martial Law Administrator Zone 'C' the Secretary Public Service Commission, by the letter dated 8‑3‑1978 required the petitioner to produce evidence to ascertain the eligibility of the petitioner before calling him for interview and as per directions of the Registrar of this Court he appeared for interview before the Public Service Commission on 23‑4‑1978. But before the result of the interview could be announced the petitioner filed a petition in this Court for quashing the proceedings initiated by the Public Service Commission for reviewing his appointment. The petition was dismissed on 7‑8‑1979. The petitioner being aggrieved by the order dated 7‑8‑1979, filed a petition for special leave to appeal in the Supreme Court of Pakistan, which was also dismissed by the Hon'ble Supreme Court on 7‑1‑1981.

4. Thereafter, by a letter dated 15‑7‑1982, received from the Public Service Commission (sic) would' be interviewing him on 18‑7‑1982. He accordingly appeared before the Commission. But again on 10‑8‑1972 he filed Petition being D‑670/1982 praying for directions for withdrawal or quashment of the letter dated 5‑7‑1982. The only ground which was urged before the Bench was that the Martial Law Order 55 was a temporary law and the same remained in force till 30‑6‑1980, and thereafter ceased to exist and no action could be taken against the petitioner thereunder. This ground was not favoured with the learned Judges of the Division Bench of this Court and consequently the petition was dismissed on 9‑3‑1984.

5. Thereafter, the Chief Secretary prepared a summary on 28‑8‑1982 for Martial Law Administrator (Annexure'F' to the petition). The petitioner has filed the present petition praying that the said summary is of no consequence and to declare and hold that the notification dated 10‑3‑1980 was not extended before 30‑6‑1980. Mr. Rehanul Hassan Farooqui in support of this petition has contended that the Martial Law Order 55 was a temporary law and the same remained in force till 30‑6‑1980, and thereafter ceased to exist, and therefore, no action could be taken against the petitioner thereunder.

6. We take up the question of the Martial Law Order 55. In this regard it would suffice to say that by insertion of Article 270‑A in the Constitution by Constitutional (Eighth Amendment) Act 1985, all the Presidential Orders, Ordinances, Martial Law Regulations and Martial Law Orders etc. have been affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by a competent authority. The paragraph 3 of Martial Law Order 107 provides that 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 MLO‑3 notwithstanding 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. Paragraph 4 thereof provides that 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. Article 270‑A of the Constitution provides that notwithstanding anything contained in the Constitution the same shall not be called in question in any Court on any ground whatsoever.

7. By virtue of Article 15(2) of the Provisional Constitution Order, the petitioner at the time when the order was passed was precluded from calling the same in question in any Court. Further, Full Bench of this Court in the case of Nazar Mohammad Khan v. Pakistan P L D 1980 Kar. 516 has already dealt with the question of legality of Martial Law Regulations and 'Martial Law Orders and held that the validity of the Martial Laws Orders made between 5‑7‑1977, and the date on which Article 270‑A came into force, that is, 30‑11‑1985 could not be questioned.

8. We may see from another angle, that is MLO‑107 makes provision for cancellation of all Martial Law Regulations and Orders except specified in the Schedule. It also provides modifications in these Martial Law Orders and Martial Law Regulations which are continued and provides validity and propriety of action taken under the Martial Law Regulations and Martial Law Orders.

9. We are, therefore, of the view that the summary prepared by the Chief Secretary for the Martial Law Administrator under SILO‑55 was protected under Article 15(2) of the Provisional Constitution Order 1981. It was a past and closed transaction and it is duly protected under Article 270‑A of the Constitution, and could not be called in question in this Court, and therefore, this petition is not maintainable.

10. This petition was dismissed in limine by a short order dated 9‑9‑1987 on the conclusion of arguments and the above are the reasons for the same.

11. S.Q./S‑172/K Petition dismissed.