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Constitutional Petition No. 413 of 1977, decided on 22nd September 1977.

‑‑ Notification No. 102/38/77‑Min. 1, dated 6th July 1977‑Vires of notification‑Proclamation declaring whole of Pakistan to have come under Martial Law and Prime Minister having ceased to hold office, impugned notification being very much embedded in Proclamation .and Proclamation itself not challenged‑Notification having no independent existence of its own, held, cannot be assailed.‑[Notification].

‑‑ Read with Proclamation of Martial Law, 1977‑Laws (Continuance in Force) Order (I of 1977 issued under authority of Proclama tion with a different purpose‑Prime Minister having ceased to hold office as per Proclamation itself, held, not at all necessary to mention removal of Prime Minister in Order I of 1977.

‑‑ Notification No. 102/38/77‑Min. 1, dated 6th July 1977 read with Constitution of Pakistan (1973)‑President having no authority under 1973 Constitution to remove Prime Minister. and himself acting under authority of Proclamation of Martial Law, contention that notification dated 6th July 1977 should have been issued by President, held, devoid of any substance.

‑ Paras. 2(I) & 3 read with Constitution of Pakistan (1973), Art. 48(1)‑Para. 2(l) speaks of "provisions" of Constitution generally, not of any particular provision of Constitution‑No substi tution 9n Art. 48 took place in circumstances‑Constitution as a whole, held, stood in abeyance without any amendment therein and Proclamation of Martial Law stood on its own legs as a source of legislation.‑‑‑[Proclamation of Martial Law, 1977].

‑ with Constitution of Pakistan (1973), Aft 245‑Federal Gov ernment having become non‑existent pursuant to Proclamation of 1977, contention of Martial Law having been proclaimed under Art. 245, Constitution of Pakistan (1973), held, futile.

‑.‑ Art. 199(b)(ii)‑Quo warranto‑Joinder of necessary parties‑Relief seeking declaration for a person to be continuing to be Prime Minister and also for declaring a notification to be invalid‑Falls under Art. 199(6)(0) for information in nature of quo warranto‑Relief, hence, held, cannot be granted without joining person concerned as party to petition.‑[Writ].

‑‑ Art. 199‑Laws (Continuance in Force) Order (I of 1977)‑Writ‑Z contorting election for National Assembly from several constituencies and taking oath in prescribed form ‑ Oath taken by Z itself making pointed reference to proclamation of Martial law and Laws (Continuance in Force) Order, 1977, and also taken without even a faint murmur of protest against his removal from office of Prime Minister‑Z, held, with such oath of allegiance patently acquiesced in prevailing state of affairs‑Relief as such being not available to Z himself, held further, could hardly be claimed by any other person including petitioner.

U Niamat Moulvi for Petitioner.

Date of hearing : 30 August 1977.

.‑To begin with, two reliefs were sought in the petition‑a direction that Mr. Zulfiqar Ali Bhutto could not be held under custody, coupled with the prayer that he should be set at liberty. Then a declaration was sought to the effect that Notification No. 102/38/77‑Min. 1, dated 6th of July, 1977, Issued by the Cabinet Secretariat, Government of Pakistan (hereinafter called the Notification) had been issued without any lawful authority. When this petition first came up for hearing on 28‑7‑1977, the question of jurisdiction had to be reckoned with, as Mr. Zulfiqar Ali Bhutto was being detained beyond the territorial jurisdiction of this Court. The learned counsel sought adjournment to ascertain the facts, whether he was kept detained in any part of Sind, that Is, within the territorial jurisdiction of this Court. The petition again came up for hearing on 2‑8‑1977, by which time, Mr. Zulfiqar All Bhutto was no longer in custody, and the learned counsel for the petitioner had to amend the petition. When, after the amendment, the petition came up for hearing in August 1977, Mr. U. Niamat Moulvi stated at the Bar that all he challenged was the Notification, and not the Proclamation of Martial Law dated the 5th of July. 1977, or any Martial Law Order, or Regulation. This statement of the learned counsel was in conformity with the case set up in the petition itself, where also neither the Proclamation of Martial Law nor the validity of the imposition of Martial Law in the country was called in question.

2 Mr. Moulvi, learned counsel for the petitioner raised the following contentions in support of this petition

(i) That both the Proclamation of Martial Law, and the Chief Martial Law Administrator's Order No. 1 of 1977, known as Laws (Con tinuance in Force) Order, 1977, were issued on one and the same date, and therefore the same are to be read together for the purpose of ascertaining the nature and scope of Martial Law.

Sub‑Paragraph (a) of the Proclamation of Martial Law provides that the Constitution of Islam Republic of Pakistan shall remain in abeyance, while Paragraph 2 (1) of the CMLA No. 1 of 1977 reads as under :‑

"2. (1) Notwithstanding the abeyance of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as "the Constitution", Pakistan shall, subject to this Order and any Order made by the President and any Regulation made by the Chief Martial Law Administrator be governed as nearly as may be, in accordance with the Constitution."

On these premises, therefore, it was contended that the Constitution of 11973 had not been abrogated, barring certain provisions, which have been kept in abeyance, or, remain in a state of suspended animation.

3. The second contention was that the Proclamation of Martial Law on the 5th of July 1977 was merely de facto in nature, and CMLA Order No. 1 of 1977 (hereinafter referred to as "the Order") bad been issued for its Implementation. However, there was no mention regarding the removal of the Prime Minister in the said Order. The learned Counsel further contended that the impugned Notification bad not been issued by the President, and therefore the same was invalid.

4. The third contention was that the Chief Martial Law Administrator had taken oath of office as Chief of the Army Staff, as required under Article 244 of the Constitution in the Form set out In the third Schedule thereof. The President, who was appointed under the Constitution, also continued to hold office under the Constitution. Mr. Moulvi further proceeded to contend that the provisions relating to the office of the Prime Minister as contained in Article 48 of the Constitution had not been done away with. According to him, as Paragraph 3 of the Order laid down that the President shall act on, and in accordance with the advice of the Chief Martial Law Administrator, therefore sub‑Article (1) of Article 48 of the Constitution stood substituted by clause 3(1) of the Order. According to him. Sub‑Article (3) of Article 48 of the Constitution had not been suspended and was operative, and therefore all orders of the President without the counter‑signature of the Prime Minister were invalid.

5 The lest contention raised was that, in the absence of any finding that there had been a coup d'etat in Pakistan, the continuance of the Proclamation of Martial Law will be deemed to be in exercise of the power conferred by Article 245 of the Constitution. The learned counsel contended that the said Proclamation was redundant, and Order No. 1 of 1977 was the only operative law.

6. Adverting to the first two contentions, it is to be seen that as per Proclamation of Martial Law, and consequent upon the assumption of the office of the Chief Martial Law Administrator by General Muhammad Ziaul Haq, Chief of the Army Staff, the National Assembly, the Senate and the Provincial Assemblies stood dissolved and the Prime Minister ceased to hold office. In no ambiguous terms it is mentioned in clause (e) of the Proclamation of Martial Law that the whole of Pakistan will come under Martial Law. The Impugned Notification of the Cabinet Secretariat is very much embedded in the Proclamation of Martial Law itself. It wan simply a logical corollary of the happenings of the day earlier, that ie, the Proclamation. It is the Proclamation of Martial Law, which A declared that the Prime Minister had ceased to hold office, and the same had not been challenged in this petition.

7. In this view of the matter, the Notification which has no independent existence of its own, cannot be assailed in the absence of any challenge to the Proclamation of the 5th day of July, 1977. The order itself had been Issued under the authority, and in exercise of all powers enabling the Chief Martial Law Administrator in this behalf. Since the Prime Minister ceased to bold office as per Proclamation itself, it was not necessary to mentions anything further in this behalf in the Order, which was issued with a different purpose as is suggested by its very name, and the said Order itself had been issued under the authority of the Proclamation. The President had no authority to remove the Prime Minister under the Constitution, and as such, the contention, that the Notification should have been issued by the President; is devoid of any substance, as from the 5th of‑ July, 1977 the President holds office, while the Prime Minister has been put out of office under the authority of the Proclamation of the said date.

8. As for the third contention; the fact remains that the Proclamation itself is not under any challenge, according to which the Prime Minister' has ceased to hold office. It will, therefore, be futile to urge that he continued to hold office as provided under Article 48 of the Constitution. The Proclamation of the Martial Law was the very death‑knell of Article 48; and it will be idle to invoke it, without raising any finger at the Proclamation itself.

9. In any case, the contention, that, by virtue of the provisions contained in Paragraph 3 of the Order, Sub‑Article (1) of Article 48 of the Constitution stands substituted, or, in other words, the Constitution in that respect stands amended, has no basis. The Proclamation stands on its own authority and as a source of legislation. The Order has been issued in pursuance of the Proclamation and in exercise of all powers enabling the Chief Martial Law Administrator in that behalf which exists independently of the Constitution. Pars. 2(I) of the Order lays down that notwithstanding the abeyance of the "provisions" of the Constitution of the Islamic Republic of Pakistan, Pakistan shall, subject to the said Order and any Order made by the President and Regulation made by the Chief Martial Law Administrator, be governed as nearly as may be, in accordance with the Constitution. It will be noticed that sub‑para, (1) of para. 2 of the Order speaks of the "provisions" of the Constitution generally, and does not talk of any particular' 'provision' of the Constitution. As such there is no scope or warrant for' contending that any substitution as alleged has taken pace in Article 48 of the Constitution. On the contrary, the words used in the Order are "as far as may be" and "notwithstanding the abeyance of the provisions of the Constitution", which can only mean that the Constitution as a whole stands in abeyance without any amendment therein.

In any case, in the absence of any challenge to the Proclamation and. CMLA Order No. 1 of 1977, there is no occasion to consider hypothetical questions, unconnected with the pleas taken and raised in support of the petition.

10. The other point in support of the third contention raised by Mr. Moulvi was that the Constitution had not been abrogated the Procla mation and the Order notwithstanding because the President continued to hold office under the Constitution. Therefore by the same token, it was contended, that the Prime Minister also continued to hold office. The learned counsel at the same time placed reliance and pressed into service the provisions of the Order and surely such an argument suffers from inherent inconsistency which is difficult to resolve.

11. The contention that the Martial Law has been proclaimed in exercise of powers conferred by Article 245 of the Constitution is equally devoid of any substance. Article 245 reads as follows :

"245.‑The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war and, subject to law. act in aid of civil power when called upon to do so.".

Manifestly, the above Article provides that the Armed Forces shall act in aid of civil power when called upon to do so under the directions of the Federal Government. The Federal Government as defined in Article 90 of the Constitution comprises of the Prime Minister and the Federal Ministers. The Federal Government has become non‑existent by the Proclamation of the 5th day of July, 1977. To urge, therefore, that the present Martial LAW has been proclaimed under Article 245 of the Constitution, a the matters stand, simply cannot pass muster.

12. The Proclamation having not been challenged, the Chief Martial Law Administrator has not been made a party to the proceedings. The learned counsel, however, asserted that the petitioner could still challenge the validity of the Notification without questioning the Proclamation. In support of this stand, the learned counsel placed reliance upon a judgment of the Supreme Court reported as Shahadat Khan any another v. Home Secretary to the Government of West Pakistan arid others (PLD1969SC158). This judgment would hardly be of any assistance. The appeal before the Supreme Court was filed against the judgment of the erstwhile High Court of West Pakistan, declaring an order made by the Commissioner. Lahore Division, to be without lawful authority. The said order of the Commissioner had been upheld by the Home Secretary to the Government of West Pakistan in a Revision Petition filed before him. The Commissioner as well as the Home Secretary, who had passed the impugned order, were party to the petition before the High Court as well as in appeal before the Supreme Court. The judgment, referred to, would be irrelevant, because the basis for the issuance of the Notification is the Proclamation and the petition has been filed against Pakistan through the Secretary to the Government of Pakistan, Cabinet Secretariat, from where the said Notice had emanated. The challenge to the said Notification will, therefore, be wholly inconsequential. Assuming for a moment that the said Notification could be declared as invalid, nothing will turn on it as, in fact, the Prime Minister has ceased to hold office by virtue of the Proclamation, and not the said Notification.

13. In so far as the relief for a declaration that the impugned Notifica tion has been issued by the Cabinet Secretariat without lawful authority is concerned, the same would be covered by clause (a) (H) of Article 199 of the Constitution, and the petitioner, who styles himself as an ardent admirer of Mr. Bhutto, has no locus standi to challenge the same in simpliciter. However, the relief seeking declaration that Mr. Z. A. Bhutto continues to be De Jure Prime Minister of Pakistan read with the prayer seeking declara tion with regard to the validity of the Notification, would fall under clause (b) (l1) of Article 199 of the Constitution for information in the nature of Quo Warranto, and of necessity such relief cannot be granted without adjoining the person concerned, as party to the petition. True, that any person may apply for a writ of Quo warranto, but certainly not without joining the necessary party.

14. We had also pointed out to the learned counsel whether the petition, if filed by Mr. Z. A. Bhutto himself, could be maintained in view of the fact that he had acquiesced in the holding of the elections under the provisions of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (President's Post‑Proclamation) Order No. 5 of 1977), which itself has been issued in pursuance of the Proclamation of the 5th day of July 1977, read with the Laws (Continuance in Force) Order, 1977 (CMLA Order No. 1 of 1977) and in 'exercise of all powers enabling the President in that behalf. In this connection, it may be mentioned that Article 7 of the Houses of the Parliament and Provincial Assemblies (Elections) Order, 1977, provides that every person who is a candidate for election to a House or a Provincial Assembly shall make, before such person as may be appointed by the Commission for the purpose, oath in the form set out in the First Schedule to the Order. The oath prescribed to the First Schedule is reproduced hereunder :

"I .. having been nominated as a candidate to fill a seat in the National Assembly/Senate/Provincial Assembly of in accordance with the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (CMLA Order No. 1 of 1977), and the Houses of Parliament and Provincial Assemblies (Election) Order, 1977, do solemnly swear that 1 will be faithful to the declaration made by the Founder of Pakistan, Qusid‑i‑Azam Muhammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic Principles of social justice :

That I will tear true faith and allegiance to Pakistan and uphold the sovereignty and integrity of Pakistan

And that I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan"

Mr. Z. A. Bhutto, as notified, will be contesting election for the National Assembly from several constituencies. Necessarily he must have taken oath in the prescribed form as set out above. The oath itself makes a pointed reference to the Proclamation and the Laws (Continuance in Force) Order, 1977, and without even a faint murmur of protest against his removal from the office of Prime Minister and with such an oath of allegiance, referred to earlier, there will be patent acquiescence. That being the case, a relief, which could not be available to Mr. Bhutto himself, could hardly be claimed by any body also. This petition will, therefore, be liable to be dismissed on this ground also.

15. As a result,' we hold that this petition must fail, and is, therefore, dismissed In limine.

S. A. H, Petition dismissed.

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