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Constitution Petition No.D-823, decided on 6th May, 1987.

---Art.270-A--Martial Law Orders (C.M.L.A.'s) Nos.3 & 4--Martial Law Orders (M.L.A. Zone C) Nos.99, 100 & 164--Martial Law Order 164 is a legislative order validating all trials, held, by Summary Military Courts constituted by MLO 99--Martial Law Administrator Zone C, held, had power to constitute Special and Summary Military Courts and to legislate in Martial Law Area administered by him--Martial Law Order (M.L.A. -Zone C) No. 164 issued by Martial Law Administrator for purpose of validating trials was a legislative provision validating trials with retrospective effect and same could not be challenged as such laws made by Martial Law Administrator had been clearly saved by Art. 270-A of Constitution passed by competent Assembly consisting of chosen representatives of people.

P L D 1963 S C 401 ref.

--- Person having legislative power has also power to legislate with retrospective effect.

---Art.270-A--Martial Law Orders (M.L.A. Zone C) Nos.99, 100 & 164--Trial of accused by Summary Military Court empowered under M.L.O. 99 which had been validated with retrospective effect by MLO 164 which was a legislative order and stood protected by Art.270-A of Constitution--Such trial, therefore, could not be challenged.

Pool P L D 1971 S C 197 ref.

Khalid M.Ishaque for Petitioner.

.--This petition brings into question, the conviction of the petitioner Mujeeb-ur-Rehman made by Major Nisarullah as Summary Military Court No. 2 in December, 1979 by which he was sentenced to suffer R.I. for one year and fine of Rs.90,00,000 on account of evasion of Excise Duty, removal of salt and breach of Trust.

The main argument raised by Mr.Khalid M.Ishaque in this regard is that Major Nisarullah was not a Summary Military Court duly constituted as the said Major had no power of Summary Military Court at the relevant time. To appreciate the argument of learned counsel it may be noted that by M.L.0.99 issued by General S.M.Abbassi Martial Law Administrator Zone-C, on 27th September, 1979. Major Nisarullah was empowered as Summary Military Court No.2 of Sector 1 and two other Majors were also empowered as S. Military Courts No.l and 2 of Sector 3. The said M.L.0--99 was issued in exercise of powers conferred by C.M.L.A. On 18th October, 1979 the same M.L.A. Zone-C issued another MLO No.100 by which he constituted Special Military Courts and empowered some of the officers of the armed forces to hold Summary Military Courts. In this order several Summary Military Courts were created for Sectors 1, 2 and 3 and in this there is no mention of Major Nisarullah. But at the same time there was no amendment or supersession of MLO 99, by MLO 100.

Major Nisarullah held the trial of the petitioner in December 1979, and convicted the petitioner. - Martial Law Order No.164 was issued on 18-3-1982, it provided as under:-

"Notwithstanding anything contained in Martial Law Order No.100 any trial held at any time by a Summary Military Court presided over by an officer mentioned in Martial Law Order No.99 shall be deemed to have been validly held."

This M.L.O. therefore has the effect of validating with retrospective effect of the trial, held by Major Nisarullah.

Mr. Khalid's argument is that the Martial Law Administrator Zone-C has no power to make any law and therefore M.L.0.164 issued by him on 18-3-1982 was absolutely illegal and without jurisdiction. The contention of the learned counsel does not appear to be correct. The Martial Law Order No.3(d) issued by C.M.L.A. on 5-7-1977 clearly empowers a Martial Law Administrator to make or issue such Martial Law Orders as he may deem fit. This is therefore the power and authority conferred by C.M.L.A. upon M.L.A. of any Zone to make laws. Under C.M.L.O. 4 the M.L.A. has been authorised to constitute Military Courts. In this respect it may be relevant to take into consideration that under these powers granted under C.M.L.O. 3 & 4, the M.L.A. Zone-C has issued more than 178 M.L.Os. in several of which legislative measures were introduced like M.L.Os. 20, 62 and 164 and some other M.L.O. The various Courts were constituted like M.L.Os . 99 & 100 and under some others D y. M.L.A. were appointed. There is nothing to distinguish between any one of the M.L.Os. as the authority of the M.L.A. is concerned.

By virtue of provisions of C.M.L.O. No.3 the whole of Pakistan was to be considered as Martial Law Area. And the area was devided into five Zones and separate Commanders of Armed Forces were appointed as Martial Law Administrators of the various areas. Same C.M.L.0.3 provided the power to C.M.L.A. to issue such Martial Law Reg. and Orders as he may deem fit and similarly it empowered a Martial Law Administrator to make and issue such Martial Law Orders as he may deem fit. These powers of the C.M.L.A. and the M.L.As. were therefore essentially of law making and they have made innumerable laws under these powers. These powers have also been used for matters incidental to law making for the purpose of making appointments and issuing notifications.

We are clearly of the view that M:L.0.164 was an Order issued for the purpose of validating trials and therefore it was a legislative provision validating with retrospective effect the trials held by Major Nisarullah. The Martial Law Order No.4 issued by the C.M.L.A. by virtue of clause 3 had empowered the M.L.A. of a Zone to transfer to a Military Court any case pending before ordinary criminal courts for disposal by a Military Courts. Consequently the M.L.A. Zone C had the power to constitute the Special and Summary Military Courts and he also had the powers of legislature in the Martial Law Area administered by him. Therefore, M.L.O.'164 had the effect of legislation in respect of validating trials conducted earlier.

In this respect we have to point out that by virtue of Article 270-A(1) all President's Orders, Martial Law Regulations, Martial Law Orders including Referendum Order 1984, etc. and all other laws made between 5-6-1977 and the date on which this Article came into force (i.e. 30th December, 1985) were 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. M.L.0.164 is such a Martial Law Order and hence it cannot be challenged.

Mr. Khalid contended that M.L.0.164 should be treated as an action by a Martial Law Administrator and not a law made by Martial Law Administrator and therefore he urged that it was covered by clause (2) of Article 270-A and not clause (1). We do not agree with him because in our view M.L.0.164 is a law made by M.L.A. Zone-C whose purpose and effect is to validate trials held by persons empowered under M.L.O. 99 and therefore it is clearly a legislative provision made to validate a trial.

In this respect reference is invited to Full Bench Case No. D-128/86 where five Judges of this Court have held that Martial Law Reg. or Martial Law Orders or a law made between 5-7-1977 and 30-12-1985 is sacrosanct and cannot be called in question in any Court. The same was based on several Supreme Court judgments.

Mr. Khalid then submitted that the basic concept of this country did not allow an amendment in the nature of Article 270-A. However, these submissions have also been noted in the above-stated Full Bench case and have been repelled by the majority opinion in that judgment, we are bound by the same.

Mr. Khalid has accepted that the M. L. A., Zone-C had only the power of constituting Summary Military Court but he did not have the power of validating a trial held by a person who did not have such powers at the relevant time.

We do not agree. The M.L.A. had obviously the power of constituting a Military Court. He also had the power of making law by issuing of M.L. Orders under Chief M.L. Order No.3(d). There was no restriction placed in respect of such Orders and hence they could be of legislative nature as well as notifications. Obviously the MLO 164 is a Legislative Order as it validates all the trials held by the Summary Military Courts as constituted by MLO 99. Therefore, MLO 99 which had indirectly gone out of effect has been put into effect and that too with retrospective effect. There is no doubt that if any person has the legislative power then he has the power to legislate with retrospective effect. The same has been done in this case. Such laws made by the Martial Law Administrators have been clearly saved by Art.270-A of the Constitution which has been held to be binding by the Full Court, as it had been passed by Assembly consisting of chosen representatives of the people.

Mr. Khalid has relied upon P L D 1963 S C 401 where it was observed that since Martial Law Orders Nos.11 and 118 were repealed and the validity of actions taken under them were not protected under any law therefore the actions taken under them could be questioned. This argument is not relevant in this case, because it is not an action of M.L.A. Zone-C which is being challenged but it is the law made by MLA Zone--C namely MLO 164 which is challenged before us and the same is clearly protected by Article 270-A of the Constitution.

Mr. Khalid also relied upon P L D 1971 S C 197 (204) where it was held that where court is not properly constituted at all the proceedings must be held to be coram non-judice and therefore non existent in the eye of law. However, in view of Art.270-A of the Constitution, M.L.O. 164 could not be challenged and therefore the trial held by Major Nisarullah in December, 1979 which has been validated with retrospective effect by M.L.0.164 cannot be called into question. Consequently this petition is dismissed in limine.

It may be relevant to note that M.L.A. Zone-C was also the Governor of the province at the relevant time having been duly appointed by the Chief Martial Law Administrator and he also had the powers of legislature hence the law made by him cannot be challenged nomenclature of the law maker was of no consequence if he had the necessary authority in law.

M.Y.H./ M-202/ K Petition dismissed.

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