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Civil Appeal No. 168 of 1969, decided on 16th March 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th November 1965, in Writ Petition No. 404 of 1964).
Art. 98 read with West Pakistan Border Area Regulation, 1959 [Martial Law Regulation (Zone B) No. 9], para. 15‑Para. 15 prohibiting superior Courts from questioning orders made under Regulation‑Does not militate against Art. 98 Order in case reported in P L D 1965 S C 623 passed when certain Regulations absolutely precluded jurisdiction of all Courts to call in question orders made by Martial Law Authorities including Border Area Committee‑Decision in P L D 1965 S C 623 not applicable to orders made after commencement of Constitution (1962).
Muhammad Khan v. Border Area Committee P L D 1965 S C 623 and Mehr Din and others v. Border Area Committee Civil Appeal No. 64 of 1969 ref.
Muhammad Naseem Sheikh, Advocate Supreme Court instructed by Iftikhar‑ud‑Din Ahmad, Advocate‑on‑Record for Appellant.
Abdul Mannan Sheikh, Advocate Supreme Court instructed by Masood Akhtar Sheikh, Advocate‑on‑Record for Respondent No. 1.
Respondents Nos. 2 and 3 : Ex parte vide Court's order dated. 6th March 1970.
Date of hearing : 16th March 1970.
‑The appellant was confirmed allottee of land in village Jharollian, Tehsil Kasur, District, Lahore, within the border belt. His allotment was, however, cancelled on the 6th April 1964, by the Border Area Committee, respondent No. 1, on the report of the Director, Enforcement Staff, that the appellant had got fictitious claims verified in his name as heir of one Gora of village Bulgan, Tehsil and District Gurdaspur. The claim was also found to have been transferred to the border area after the terminal date 24th December 1952.
Aggrieved by the cancellation of his allotment, the appellant filed Writ Petition No. 404 of 1964 in the High Court claiming that the order of the Border Area Committee was within Article 98 of the Constitution without lawful authority. A Division Bench dismissed the writ petition for want of jurisdiction to call in question the order dated the 6th April 1964, placing reliance on the decision of this Court in Mohammad Khan v. Border Area Committee (PLD1965SC623).
In a similar case Mehr Din and others v. Border Area Committee Civil Appeal No. 64 of 1969, decided on 13‑3‑1970 we have held that para. 15 of the Martial Law Regulation 9, Zone B, which prohibits the High Court and the Supreme Court to call in question any order made under the Regulation or grant any injunction or other order in relation to any proceedings before a committee or before any officer exercising any power or discharging any function under the Regulation, does not militate against Article 98 of the Constitution. The effective orders in Mohammad Khan's case were passed during the Martial Law Regime when certain Regulations held the field which precluded absolutely the jurisdiction of all Courts including High Courts and Supreme Court to call in question any order made by a Martial Law Authority which term included the Border Area Committee whether with or without jurisdiction. The decision in that case was, therefore, not applicable to the orders made after the commencement of the 1962‑Constitution.
This appeal is, accordingly, allowed and the case is remitted to the High Court for decision on merits. Costs will abide the final decision of the case.
Case remanded for decision on merits.
Appeal allowed.
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