MUHAMMAD BACHAL MEMON versus GOVT. OF SIND

Para 4 of the Para 4 Constitution of Pakistan (1973), Arts 270 A& 199 Scrope and Para 4 of the MLO No. 107 The appropriate words in Para 4, the MLO No. 107 Notice World will meet only those challenges where appropriate. The process was inappropriate, irrational. Irregular or not according to the facts or procedures but could not cover the steps which it was alleged to be inappropriate with no jurisdiction and without guilt. Or related to irregularities. Cannot cover the proper procedure and the cases where an action was alleged to have been fully or without law jurisdiction without the jurisdiction of which it was alleged by Martial Law Authorities Under a particular authority, actions that were without jurisdiction were, therefore, not reformed or protected. Understanding them as appropriate actions or decisions [words and phrases]

P L D 1987 Karachi 296

Before Naimuddin, C. J., Abdul Qadeer Chaudhry,

        
    Muhammad Zahoorul Haq, Ally Madad Shah and 
    
    Haider -Ali Pirzada, JJ

    
    MUHAMMAD BACHAL MEMON-Petitioner
        Versus
        GOVERNMENT OF SIND THROUGH SECRETARY
        DEPARTMENT OF FOOD AND 2 OTHERS-Respondents
        Constitutional Petition No. D-128 of 1986, decided  on 26th March,
    1987.
        Per Naimuddin, C. J., Abdul Qadeer Chaudhry,  Muhammad Zahoorul Haq, Ally Madad Shah and Haider Ali Pirzada, JJ. (Unanimous  conclusion)-
        (a) Constitution of Pakistan  (1973)- 
            -- Arts. 199 & 270-A-Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A's. No. 107)-Reliabilities of Karachi Hotel  Project Order, 1985 (C. M. L. A's. No. 105)-Martial Law Order No. 107 or  inclusion of Martial Law Order No. 105 in the Schedule to Martial Law Order No.  107, held, could not be called in question and was protected under Art. 270-A  of the Constitution, which is valid.
        (b) Constitution of Pakistan (1973)-  
            - Arts. 199 & 270-A - Constitutional Petition,  held, was not completely barred in respect of convictions by Military Courts or  actions by Military Authorities-Scope of challenge, however, was restricted to  acts or orders which were without jurisdiction or to proceedings which were  coram non judice.
        Per Muhammad Zahoorul Haq, J., Abdul Qadeer  Chaudhry, J. agreeing (c) Constitution of Pakistan (1973)-
        -- Art. 270-A-Object and scope of Art.  270-A-Validity of laws including Martial Law Regulations and Martial Law Orders  made between 5-7-1977 and the date on which Art. 270-A came into force i. e.  30-12-1985 cannot be questioned.
          Sub-clause (1) of Article 270-A, Constitution of  Pakistan (1973) provides a blanket cover in respect of all the laws, Martial  Law Orders, Martial Law Regulations, enactments etc., made or issued between  5-7-1977 and 30-12-1985 and these laws are affirmed to have been validly made  in spite of any judgment of any Court to the contrary or in spite of anything  contained in the Constitution and it is clearly provided that they shall riot  be called into question on any ground whatsoever. It, therefore, appears to be  clear that the Parliament intended to provide complete cover in respect of  these laws and wanted to save them from being challenged in any manner. The  purpose obviously was to avoid any- chaos or confusion because if all these  laws which have been made during this period were allowed to be challenged,  then the basis of the rights and liabilities which had accrued in pursuance of  these laws, would have been disturbed and the same would have created a great  deal of difficulty and upheaval. These laws are, therefore, completely saved  from the scrutiny of the Courts and nothing, which is contained in the present  Constitution can be made a test or basis for challenging these laws. Validity  of the laws including Martial Law Regulations and Martial Law Orders made  between 5-7-1977 and the date on which the Article 270-A came into force f. e.  30-12-1985 could not 'be questioned. 
        Nazar Muhammad Khan's case P L D 1;986 Kar. 516  ref.
        (d) Constitution  of Pakistan (1973)- 
        -- Art. 270-A (1), proviso - Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A's. No. 107), Sched.-Matters which were  incidental to or were to facilitate revocation of proclamation of Martial  Law-Inclusion of Martial Law Order No. 105 in Schedule to M. L. O. No. 107  being relevant and incidental to facilitate revocation of Proclamation of  Martial Law, was not ultra vires of the Constitution-Object and scope of M. L.  O. No. 107, highlighted.
          M. L. O. 105 was a Martial Law Order and when the  Martial Law proclamation was being lifted it was absolutely necessary to make a  provision in respect of the existing Martial Law Orders and Martial Law  Regulations and also in respect of the actions taken in pursuance of the same  as well as the pending proceedings. Therefore, any provision, which seeks to  provide for the repeal or continuation of a Martial Law Order would clearly be  incidental to the revocation of the proclamation of Martial Law as it pertains  to the subject of revoking the effect of Martial Law. When the Martial Law was  being revoked it was open to the C. M. L. A. to retain some of the provisions,  which he had enforced during Martial Law. He, therefore, enforced M. L. O. 107  on 29-12-1.985.
        Martial Law Order No. 107, makes provision for  cancellation of all Martial Law Regulations and Orders except specified in the  schedule. It also makes modifications in those M. L. Os. and M. L. Rs. which  are continued and makes provisions for pending proceedings and provides  validity and propriety to action taken under the cancelled M. L. Os. and M. L.  Rs. and also provides for making of petitions in respect of sentences awarded  by Military Courts.
        C. M. L. A. till 29-12-1985, could choose which M.  L. O. and M. L. R. to retain and which one to cancel. He cancelled a great  number of them but retained some. There was no embargo upon C. M. L. A. about  this choice. He could decide about the particular M. L. O. or M. L. R. which be  wanted to be saved from the effect of revocation of the Martial Law Order and  Martial Law Regulation in pursuance of the revocation of the proclamation of  Martial Law. His choice is, therefore, not open to question in saving the  effect of M. L. O. 105 particularly when this M. L. O. was made before  30-9-1985.
        The parliament in its wisdom provided protection to  all M. L. O's made before 30-12-1985 and hence M. L. O. 107 is free from any  challenge on any basis, in order to facilitate the revocation of the  proclamation of Martial Law it may be necessary to retain some of the Martial  Law Orders and Regulations and, therefore, retaining of some of the Martial Law  Orders and Regulations cannot be described as completely irrelevant to  4cilit&te the revocation of the proclamation of the Martial Law. One cannot  lose sight of the fact that the Martial Law Regulations and Martial Law Orders  have been cancelled by this very M. L. O. 107. Which Martial Law Orders and  Martial Law Regulations are to be retained as ordinary laws even after the  lifting of Martial Law, is for C. M. L. A. to choose and if a choice is made by  him, then the same could not be challenged. Till 29-12-1985 even Article 270-A  with the proviso of its clause 1, had not come into force as it came into force  on 30-12-1985. Moreover, the Parliament itself having provided complete saving  of those provisions of law which were to remain in force on 30-12-1985 in spite  of anything' contrary to the same in the Constitution, the said law namely M.  L. O. 107 is now sacrosanct from any challenge even to the extent of inclusion  of M. L. O. 105 in its schedule. Consequently all the laws which were in force  on 30-12-1985 and which had been enforced between 5-7-1977 and 29-12-1985 are  completely saved from any challenge and the same cannot be tested even against  a proviso which may be found contrary to the same in the Constitution itself.  The bar provided under clause (2) of Article 270-A of the Constitution is in  respect of actions taken during 5-7-1977 and 29-12-1985 under any Martial Law  Regulation, Martial Law Order, enactment, rule etc. This sub-Article on the  face of it appears to be barring a challenge to these actions before any Court  on any ground whatsoever.
        (e) Constitution of Pakistan  (1973)- 
            -.- Art. 270-A(2)-Bar in respect of actions-Where  actions taken between 5-7-1977 and 29-12-1985 under any Martial Law Regulation,  Martial Law Order, enactment, rule etc. were mala fide, without jurisdiction or  coram non judice, immunity provided under Art. 270-A (2) would not save them  completely from scrutiny of superior Courts and therefore Art. 270-A (2) did  not provide a complete bar in respect of such actions.
          Clause I of Article 270-A, Constitution of  Pakistan, 1973 gives validity to all the laws including Martial Law Orders and  Regulations made during 5-7-1977 to 30-12-1985 and provides that the same shall  not be called into question in any Court on any ground whatsoever  notwithstanding any judgment of any Court or anything contained in the  Constitution.
            Proviso of clause 1 of Article 270-A although  covers a small period of 30-9-1985 to 30-12-1985, yet it does provide a scope  for examining the laws made by the C. M. L. A. during this period.
        More important in respect of the actions of Martial  Law authorities is clause 2 of Article 270-A which has provided that actions  taken by the Martial Law Authorities during the specified period shall not be  called into question on any ground whatsoever notwithstanding any judgment of  any Court. 
        In spite of the bar provided, the jurisdiction of  the superior Courts to scrutinize actions of Military Authorities is not  completely barred in respect of those actions, which were mala fide, without  jurisdiction or coram non judice. 
          If the actions were mats fide, coram non judice or  without jurisdiction, then in spite of the validity conferred on such actions  and the immunity, the Superior Courts were not completely debarred from  scrutinising the actions. However, the scope of scrutiny was limited to  actions, which were mala fide, coram non judice and without jurisdiction. In  other respects the immunity was considered complete.
          The legislature was aware of the interpretation  placed by the Supreme Court of Pakistan on a similar provision. Therefore, when  it enacted clause (2) of Article 270-A of the Constitution, the legislature  knew that it is providing validity and immunity to the actions to the extent  already "explained and interpreted by the Supreme Court and that this  validity did not extend to action which were mala fide coram non judice or  without jurisdiction. 
        By reading only clause (2) of Article 270-A without  taking into consideration the other provisions of the same Article, it would be  clear that the legislature had intended that if the impugned actions were mala  fide, without jurisdiction or coram non judice, then the immunity provided  under Article 270-A, Clause (2) would not save them completely from the  scrutiny of the superior Courts and, therefore, clause (2) of the Article 270-A  does not provide a complete bar in respect of such actions. 
        Saeed Ahmed's case P L D 1974 S C 151 ; Fauji  Foundation case P L D 1983SC457andPLD1973SC49ref.
        (f ) Constitution of Pakistan  (1973 
            Arts. 270-A (1)(2) & (5) & 199-Indemnity  clauses-Clause (5) of Art. 270-A is completely distinct and different from cls.  (1) & (2) of Art. 270-A-Article 270 (5) has the effect of making actions  specified in Cl. (2), Art. 270-A as the actions taken in good faith and for the  purpose intended thereby-Ouster of jurisdiction, an indirect effect of Cl. (5)  of Art. 270-A, which provides a restriction to the scope of inquiry under Art.  199 of the Constitution-Scope of inquiry under Art. 199-Extent-Such actions as  were specified under Art. 270-A (2) & (5),could yet be brought under  challenge on limited ground of being Coram non judice or without jurisdiction.
        Article 270-A, clause (5) makes a provision, which  is completely distinct and different from the provisions of so-called indemnity  clauses.
            The ouster of jurisdiction is however an indirect  effect of clause 5 of Article 270-A. This clause does not as such oust the  jurisdiction of this Court under section 199, but it does make it mandatory for  everyone including Courts to deem that an action as referred to in clause 2 of  Article 270-A was taken bona fide and for the purpose for which it was meant.  Therefore, the effect of this clause appears to be that although an action may  not appear to have been taken in a good faith and for the purpose to be served  thereby, yet this clause shall oblige Court to treat it as done in good faith.  And again even though the action may not appear to have been for the purpose  for which it was intended to be under the statute yet this deeming clause which  is a part of the Constitution itself, will not leave it open to the Courts or  to anyone else that the action was not taken for the purpose provided in the  statute, but on the other hand to treat it as the action taken for that  purpose.
          The legislature has closed the door of enquiry and  scrutiny to the extent of the challenge based on mala fide nature of the  action. Thus, the three types of mala fide actions where a person taking action  on account of some prejudice or ill-will against the aggrieved person, or an  action for the purpose of benefiting the doer of the action for his personal  benefit or for the benefit of relations and friends or still an action which is  not for the purposes intended in the statute under which it is taken but is  apparently for a different or colorable or 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.  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 inquiry under Article 199 of the  Constitution. The result, therefore, is that the Constitu tion has now  forbidden a challenge to such actions on the basis of mala fides also and thus  the scope in inquiry, which had been left open under clause (2) in respect of  mala fide, Coram non judice and without jurisdiction actions, is now, by clause  (5) closed in respect of mala fide actions also. Therefore, the scope of  inquiry 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. 
        Article 270-A(5) provides an artificial cloak for  an action which may in fact be different but law makes it look like the one the  deeming clause wants it to be. Clause (5) of Article 270-A is not a part of  ordinary law which is sub constitutional, but it is a part of Constitution  itself and since the jurisdiction of the Court under Article 199 is subject to  the Constitution, therefore, the High Court has to give effect to clause (5) of  Article 270-A and cannot brush it aside as the High Court is itself the  creature of the Constitution and cannot act in contravention of the  Constitution. Hence the deeming clause (5) of Article 270-A has the effect of  making the actions specified in clause (2) of Article 270-A as the actions  taken in good faith and for the purpose intended thereby. 
        The effect of clause (5) of Article 270-A is to  avoid the effect of interpretation of mala fides by the Supreme Court in other  cases. It, therefore, saves challenge based on any kind of mala fides but does  not save the action from the challenge based on Coram non-judice or without  jurisdiction.
        After all there must be some purpose assigned to  the exclusion of provision like Article 15 of P. C. O. from Article 199 of the  Constitution or even from Article 270-A. If the legislature had intended to  exclude the jurisdiction of Courts completely then it would have done so by  merely incorporating such provision in either Article 199 or Article 270-A, but  its not having done so shows that complete ouster of the Courts jurisdiction  under section 199 was not intended but only partial exclusion was intended.
        The words "Notwithstanding any judgment of any  Court" used in clause (2) of Article 270-A cannot be construed to exclude  the interpretation of the Supreme Court upon such words. The only meaning given  to these words could be that if there had been a judgment of any Court like the  judgment in the case of Asma Jeelani P L D 1971 S C 139 where all the, laws  made by usurper General Yahya were declared void or a judgment in the case of  Mrs. Nusrat Bhutto v. Federation of Pakistan P L D 1977 S C 657 which had saved  the general superintendence of the Courts in respect of all actions of Martial  Law Authorities by declaring that C. M. L. A. Order 1 of 1977 was not valid to  the extent of exclusion of supervisory jurisdiction of superior Courts, then the  effect of these judgments would have been lost by the words  "Notwithstanding any judgment of any Court". However, the  interpretation of the Supreme Court upon the use of similar words is not deemed  to be excluded by such expression as the same is of universal application. 
        Articles 270-A (2) and (5) does provide some bar  and restriction to the entertainment of Constitutional Petitions in respect of  the actions of Martial Law Authorities and actions under the Martial Law by  different other authorities but the bar is not complete and scope is still left  for scrutiny if the challenge is based on the action being coram non judice or  without jurisdiction. 
        Saeed Ahmed's case P L D 1974 S C 151 ; Asma  Jeelani's case P L D 1972 S C 139 ; Mrs. Nusrat Bhutto v. Federation of  Pakistan P L D 1977 S C 657 and Ziaur Rahman's case P L D 1973 S C 49 ref.
        (g) Martial Law (Pending Proceedings) Order, 1985 (C. M.  L. A. 's No. 107)---
            -- Para. 4-Constitution of Pakistan (1973), Arts.  270-A & 199 Scope and application of para. 4 of M. L. O. No. 107 - Word  "proper" occurring in para. 4, M. L. O. No. 107-Connotation Word  "proper" would meet only those challenges where action was said to be  improper, unreasonable, irregular or not in accordance with the facts or not in  accordance with procedure but could not cover actions which were alleged to be  without jurisdiction or coram non judice--Word "proper" would be  relevant to the deficiency on merit of a matter or other impropriety or the  irregular on the proper procedure adopted by Martial Law Authorities and could  not cover those cases where an action was alleged to be completely without  jurisdiction and absolutely not covered by the law under which particular authority  had acted-- Actions which were without jurisdiction, therefore, were not  rectified or saved by deeming them to be proper actions or decisions.- [Words  and phrases]. 
        Black's Law Dictionary, Vth Edition, page 1095 ref.
        (h) Constitution of Pakistan (1973)----                   
            Arts. 270-A (5) & 199 - Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A's. No. 107), paras. 4 & 5- Words  "validly done or taken" - Connotation - Cases covered by expression  "validly" detailed-High Court is not deprived of scrutinizing those  actions of Martial Law Authorities which were completely without jurisdiction  or coram non judice.
        The expression "validly" is certainly far  more comprehensive than "properly" and it covers those cases where it  is alleged that an action is without lawful authority, or not in accordance  with the law under which the same has been taken. It is, therefore, a much  stronger word than the previous word "proper". But even the  expression "validly" will not cover those actions which were either  coram non-judice or without jurisdiction. The very words "validly done or  taken" had been used in Article 281(2) of 1972 Constitution and repeated  in Article 269(2) of 1973 Constitution and again repeated in Article 270-A (2)  of the present Constitution, and the same has been authoritatively held by the  Supreme Court in different cases not to include those cases where the action is  alleged to be either male fide, without lawful authority or coram non judice.  Therefore, even "validly done or taken" used in para. 4 of M. L. O.  107 does not deprive the High Court of scrutinizing those actions of the  Martial Law Authorities which are completely without jurisdiction or coram non  judice. Jurisdiction of the High Court in respect of enquiry about mala fide  actions had now been excluded by clause (5) of Article 270-A of the  Constitution in an indirect manner. 
        (i) Constitution of Pakistan (1973)-
            -- Art. 199 - Martial Law (Pending Proceedings)  Order, 1985 (C. M. L. A's. No. 107)-M. L. O. No. 107 does not oust jurisdiction  of High Court under Art. 199, Constitution of Pakistan (1973).
        (j) Constitution of Pakistan (1973)-
            -- Arts. 199 & 270-A (3) & (6)-Martial Law  (Pending Proceedings) Order, 1985 (C. M. L. A's. No. 107), para. 10-Martial Law  Order No. 107 cannot affect jurisdiction of High Court under Art. 199 of  Constitution of Pakistan (1973) but at the most provide a defence to petition  under Art. 199 by clothing the actions of Martial Law Authorities with legality  and propriety but nothing further--- M. L. O. No. 107 does not have the effect  of placing any bar upon seeking remedy provided by Constitution which is  superior to M. L. O. No. 107.
        M. L. O. 107 might have been a supra constitutional  measure on 29-10-1985 when it was invoked but it is certainly not supra  constitu tional measure with effect from 30-12-1985 and it simply has the  effect of an ordinary law or a sub-constitutional measure. It is of course  saved from repeal by paragraph 10 of this M. L. O. itself which allows this M.  L. O. to have effect notwithstanding the repeal of Martial Law Regulations and  Martial Law Orders.
        By virtue of the provisions of clause (3) of  Article 270-A, M. L. O. 107 will continue to be in force until it has been  repealed or altered by the competent authority. However, clause (6) of Article  270-A provides that the Martial Law Regulations and Martial Law Orders which  are specified in the VII Schedule of Constitution may be amended in the manner  provided for amendment of the Constitution. Therefore, those Presidential  Orders and Ordinances are similar to a provision of the Constitution to the  extent of its amendment which is not by a mere majority of two houses but  requires a particular percentage of votes. But M. L. O. 107 is not found in the  VII Schedule of the Constitution and, therefore, it cannot be treated at par  with any provision of the Constitution. The same clause (6) of Article 270-A  provides that all other laws referred to in clause (1) may be amended by the  appropriate legislature and, therefore, this M. L. O. 107 can be amended by the  appropriate legislature by ordinary majority and it is now ordinary  sub-constitutional legislation.
          M. L. O. 107 cannot affect the jurisdiction under  Article 199 of the Constitution. It will at the most provide a defence to the  petition under Article 199 of Constitution by clothing the actions of Martial  Law Authorities with legality and propriety but nothing further. It does not  have the effect of placing any bar upon seeking the remedy provided by the  Constitution which is superior to M. L. O. 107.
        (k) Constitution of Pakistan (1973)-
            -- Art. 199 - Martial Law (Pending Proceedings)  Order, 1985 (C. M. L. A's. No. 107), para. 7-Constitutional petition-Alternate  remedy-Petition under para. 7 of M. L. O. No. 107, held, was not adequate or  alternate remedy to a constitutional petition under Art. 199.
        It is hardly possible to treat a petition under  para. 7 of M. L. O. 107 as adequate or alternate remedy to a writ petition  under Article 199 of the Constitution. It appears to be merely a different form  of a mercy petition as provided under sections 401 to 402-A of Criminal  Procedure Code and under Article 45 of the Constitution. This petition is not  either an appeal or a revision against conviction as known in sections 410 to  423 or sections 435 to 439 of Criminal Procedure Code. Since this petition  under para. 7 of M. L. O. 107 is confined in its scope towards reduction or  remission of sentences only therefore, merits cannot be attacked and even the  criticism in respect of merits is directed only to secure the reduction of  sentence and hence it is no remedy for a person who challenges his entire trial  and conviction.
          Provisions of para. 7 of M. L. O. 107 are thus more  or less similar to a mercy petition and para. 9 of M. L. O. 107 allows the  President and the Governor to exercise the same powers in respect of petitions  under para. 7 which the C. M. L. A. or the M. L. A. could respectively exercise  under
        Army Act or Rules where no hearing was ever  contemplated or visualized. Therefore, by this process the provisions of Pak.  Army Act in respect of mercy petitions are again brought into play and it is  not the case that ever any person has been heard in respect of mercy petitions  because such petitions merely seek the exercise of plenary and executive powers  of the authorities and are not a vested right of the person aggrieved. 
        (l) Constitution of Pakistan (1973)-
            --- Art. 199 - Martial Law (Pending Proceedings)  Order, 1985 (C. M. L. A's. No. 107), para. 7-Constitutional petition-Adequate  and alternate remedy-Petition under para. 7 of Martial Law Order No. 107 is  neither an adequate remedy for a person who considers himself to be wrongly  convicted by a Martial Law Court, nor such petition gives a right to claim  personal hearing-Personal hearing by the President/Governor being far-fetched  in view of the high office and multifarious and important responsibilities of  those dignitaries, High Court desired some sort of opportunity of hearing to be  provided to the aggrieved parties to ventilate their grievances before an  appropriate Tribunal to the extent of challenge allowed in Zia-ur-Rehman's case  P L D 1973 S C 49.
          Petitions under para. 7 of M. L. O. 107 are neither  an adequate remedy for a person who considers himself to be wrongly convicted  by a Martial Law Court, nor these petitions give a right to claim a personal  hearing. In fact, in such cases a personal hearing by the President or the  Governor is far-fetched in view of the high offices and multifarious and  important responsibilities of these dignitaries. In view of the scores of  challenges made by aggrieved persons on innumerable grounds against convictions  by  Martial Law Courts, it may have been  more conducive to public confidence, particularly after the revival of the  Constitution and restoration of Fundamental Rights, if some sort of opportunity  of hearing had been provided to the aggrieved parties to ventilate their  grievances before an appropriate Tribunal to the extent of challenge allowed in  Zia-ur-Rehman's case by the Supreme Court (P L D 1973 S C 49) or at least to  the extent of challenge now available in spite of clauses (2) and (5) of  Article 270-A. The same would have cleared the air a great deal and would not  have burdened the High Court with scores of petitions. Those Tribunals could  consist of Retired Judges of the High Court or even Senior Retired Army  officers or retired Senior Civil Servants.
        Zia-ur Rahman's case P L D 1973 S C 49 ref.
        Per Naimuddin, C. J. 
        (m) Constitution of Pakistan (1973)-
            -- Art. 189-High Court is bound by the dictum of  the Supreme Court. 
        (n) Constitution of Pakistan (1973)-
            -- Art. 238-Constitution does not contain any  provision limiting the powers of Parliament to amend the Constitution. 
        (o) Constitution of Pakistan (1973)-
            -- Art. 238(5)-Amendment to the Constitution-No  amendment to the Constitution can be called in question in any Court on any  ground whatsoever - Superior Courts, however, has powers to examine vires of an  Act but their powers are limited to examine legislative competence or such  other limitations as are contained in the Constitution.
        State v. Zia-ur-Rehman P L D 1973 S C 49 and Fauji  Foundation v. Shamimur Rahman P L D 1983 S C 457 ref.
        (p) Constitution of Pakistan (1973)---
            -- Arts. 2-A & 270-A - Validity of enactments  amending the Constitution-Provision of Art. 2-A on basis of which validity of  Art. 270-A was questioned was inserted by P. O. 14 of 1985-Both amendments  having same force, validity of one cannot be tested on touchstone of the other.  
        (q) Constitution of Pakistan (1973)--
            -- Arts. 199 & 270-A-No constraint on  Parliament to give validity to any legislative instrument whatever might have  been the defect- Vires of Art. 270-A, Constitution of Pakistan (1973),  therefore, cannot be questioned under Art. 199.
        State v. Zia-ur-Rehman P L D 1973 S C 49 and Fauji  Foundation v. Shamimur Rahman P L D 1983 S C 457 ref.
        (r) Constitution of Pakistan (1973)----
            -- Arts. 270-A & 4 - Rehabilitation of Karachi  Hotel Project Order, 1985 (C. M. L. A.'s No. 105)-M. L. O. No. 105, having been  promulgated on 21-3-1985, which is a date between fifth day of July, 1977 and  30th December, 1985 as provided in Art. 270(1), its validity cannot be  questioned on any ground as provided in Art. 270(1).
        Nazar Muhammad Khan's case P L D 1986 Kar. 516 ref.
        (s) Constitution of Pakistan (1973) ---
            -- Arts. 270-A & 199 - Rehabilitation of  Karachi Hotel Project Order, 1985 (C. M. 1". A.'s No, 105)-Mala fid--No  mala fide can be pleaded against a statute and for that reason M. L. O. No. 105  cannot be regarded as being void.-[Mala fide]. 
        Fauji Foundation v. Shamimur Rahman P L D 1983 S C  457 ref.
        (t) Constitution of Pakistan (1973)-
          -- Arts. 270-A & 199-Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A.'s No. 107) - Rehabilitation of Karachi  Hotel Project Order, 1985 (C. M. L. A's. No. 105) - M. L. O. No. 107 having  been promulgated within the dates mentioned in Art. 270-A(1) of the  Constitution of Pakistan (1973) cannot be called in question -Inclusion of M.  L. O. No. 105 in Schedule to M. L. O. No. 107, was incidental which means  something that is only an adjunct to something else and facilitated the  revocation of proclamation of Martial Law, and therefore, cannot be called in  question. 
        Carstens Packing Co. v. Unemployment Compensation  Division of Industrial Accident Board 144 p. 2d 203, 208, 65 Idaho 370 and  Stroud's Judicial Dictionary, Vol. 2, p. 1412, (3rd Ed.) ref.
        (u) Words and phrases-
            -- Incident-Meaning.
        Carstens Packing Co. v. Unemployment Compensation  Division of Industrial Accident Board 144 p. 2d 203, 208, 65 Idaho 370 and  Stroud's Judicial Dictionary, Vol. 2, p. 1412, (3rd Edn.) ref.
        (v) Words and phrases-
            Word "facilitate"-Meaning. 
        The Oxford English Dictionary, Vol. IV, p .10 ;  Radio Station Wmfr v. Eitel-McCullough, Inc. 59 S. E. 2d 779, 782, 232, N. C.  287 ; Panzer v. Horn 83 N. Y. 2d 887, 893 and U. S. v. One 1949 Ford Sedan D.  C. N. C. 96 F. Supp. 341, 343 and U. S. v. One 1950 Buick Sedan C. A. Pa. 231.  F. 2d 219, 222 ref.
        (w) Constitution of Pakistan (1973)-
            -- Arts. 270-A & 199- Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A.'s No. 107), para. 3(1)-Rehabilitation of  Karachi Hotel Project Order, 1985 (C. M. J.. A.'s No. 105)-Cancellation of  Martial Law Orders referred to in M. L. O. No. 107, para. 3(1) does not affect  previous operation of Martial Law Order No. 105, that being past and closed  transaction which could not be called in question by virtue of Art. 270-A  (2)(3).
        (x) Constitution of Pakistan (1973)-
        -- Arts. 199 & 270-A-Bar in respect of actions  as contained in Art. 270-A (2)(5)-Validity of proceedings that are coram non  judice or orders and acts that are without jurisdiction can be examined by High  Court on a petition under Art. 199 in exercise of judicial powers  notwithstanding the bar contained in Art. 270-A(2) & (5).
        Federation of Pakistan v. Saeed Ahmed Khan P L D  1974 S C 151; F. B. Ali and another v. The State P L D 1975 S C 506 and Fauji  Foundation and another y. Shamimur--Rehman P L p 1983 S C 457 fol.
        (y) Constitution of Pakistan (1973)-
            -- Arts. 199 & 270-A(5)-Bar in respect of  actions-Orders, acts and proceedings cannot be called in question on the ground  of mala fide.-[Mala fide]. 
        Ziaur Rahman's case P L D 1973 S C 49 ref.
        (z) Jurisdiction-
            -- Act wholly without jurisdiction and act done in  improper exercise of jurisdiction-Distinction-Where there is jurisdiction to  decide, then there is jurisdiction to decide either rightly or wrongly-Merely a  wrong decision does not render decision without jurisdiction.
        Nawab Syed Raunaq Ali etc. v. Chief Settlement  Commissioner and others P L D 1973 S C 236 ; Muhammad Hussain Munir and others  v. Sikandar and others P L D 1974 S C 139 ; Amir Hussain Khan v. Shew Bakhsh  Singh I 1 I. A. 237; Badrul Haque Khan v. Election Tribunal, Dacca and others P  L D 1963 S C 704 and Sint. Ujjma Bai v. State of Uttar Pradesh A I R 1962 S C  1621 ref.
        (aa) Constitution of Pakistan (1973)-
            Arts. 270-A & 199-Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A.'s No. 1()7), para. 4-Word  "properly" occurring in para. 4 of M. L, O. No. 107-Meaning-Use of  word  proper' does not save the effect of orders, acts, or proceedings that  were passed or done, without jurisdiction or were coram non judice. [Words and  phrases].
          The word  properly' used in paragraph 4 of the  Martial Law Order No. 107, means  (I) in the proper or strict sense ; strictly  speaking ; literally, not figuratively (obs.) ; in accordance with fact ;  strictly, accura tely, correctly, exactly'. Accordingly, the use of this word  therein, also does not save the effect of orders, acts, or proceedings that  were passed or done, without jurisdiction or were coram non judice. Indeed,  such orders, acts, and proceedings could not have been called in question under  Article 15 of the Provisional Constitution Order, 1981, but now as Provisional  Constitution Order has been repealed the said Martial Law Order has become an  ordinary piece of legislation like any other Act or Ordinance.
        Fauji Foundation v. Shamimur Rahman P L D 1983 S C  457 ; Mian Iftikharuddin v. Muhammad Sarfraz P L D 1961 S C 585 ; Muhammad Khan  v. Border Allotment Committee P L D 1965 S C 623 ; Azizur Rehman Chow dhury v.  M. Nasiruddin P L D 1965 S C 236 and Begum Nusrat Bhutto v. Chief of the Army  Staff etc. P L D 1977 S C 657 ref.
        Per All Madad Shah, J.- 
        (bb) Constitution or Pakistan (1973)- 
            -- Arts. 238 & 239-Parliament has unlimited  power to wake any amendment in the Constitution in accordance with Arts. 238  & 239.
        (cc) Constitution of Pakistan (1973)-
            -- Arts. 199 & 270-A (2) & (5) -- Bar in  respect of actions --Protection under Art. 270-A(2) read with Cl. (5) thereof,  to the orders, proceedings, and acts envisaged thereunder is not absolute and  they can be called in question before High Court on grounds of want of  jurisdiction and/or coram non judice.
        The State v. Zia-ur-Rehman P L D 1973 S C 49 and  The Federation of Pakistan v. Saeed Ahmed Khan P L D 1974 S C 151 ref.
        (dd) Constitution of Pakistan (1973)-
            -- Arts. 199 & 270-A-Martial Law (Pending  Proceedings) Order, 1985 (C. M. L. A.'s No. 107)-Martial Law Order No. 107  having been made on 29th day of December, 1985 i. e. before the day on which  Article 270-A came into force, stands affirmed, adopted and declared to have  been validly made and is not liable to be called in question on any ground  whatsoever notwithstanding anything contained in the Constitution, as laid down  in Art. 270(1).
          Martial Law Order No. 107 having been made on 29th  day of December, 1985, i. e. before the day on which Article 270-A came into  force, stands affirmed, adopted and declared to have been validly made and is  not liable to be called in question on any ground whatsoever, notwith standing  anything contained in the Constitution, as laid down under clause (1) of  Article 270-A of the Constitution. It is essentially an order to provide for  incidences arising from revocation of the proclamation of Martial Law of the  Fifth day of July, 1977. It is a sub-constitutional law given cover of immunity  from challenge in any Court on any ground whatsoever. However, applicability of  its provisions will be a matter for consideration of High Court in each  individual case.
        Nazar Muhammad's case P L D 1986 Kar. 516 ref.
        Imam Ali Kazi, Deputy Attorney-General of Pakistan,  Wajihuddin Ahmad, Advocate-General of Sind, Qadir Sayeed, Standing Counsel,  Government of Pakistan, Rasheed A. Akhund, Abul Khair Ansari for the  Government.
        Khalid M. Ishaq, A. Q. Halepota, Muhammad Hayat  Junejo, Abdul Hafeez Lakho, Aftab Ahmed Akhund, Nooruddin Sarki, A. Mujeeb  Pirzada. Raja Qureshi, Mirza Abdur Rashid, Ali Ahmed Tariq, Sabihuddin Ahmed,  Mazhar Ali Chohan, Muhammad Saleem and G. M. Soomro for Petitioners.
        Dates of hearing : 27th December, 1986, 14th, 15tb,  19th, 20th, 21st, 26th, 27th, 28th, 29th January; 2nd and 3rd February, 1987.
        JUDGMENT        MUHAMMAD ZAHOORUL HAQ, J.-It is not  necessary to go into the facts of the 14 petitions which are before us in view  of the fact that the question of admission of these petitions is not before us  and we are only considering the office objection in respect of maintainability  of these petitions. Suffice it to say that in the 11 petitions conviction by  Martial Law Courts is challenged on different grounds of illegality, malice,  double jeopardy and breach of natural justice. In one petition Martial Law  Order 107 is challenged to the extent of inclusion of M. L. O. 105 in the  schedule of M. L. O. 107, and in one petition the order of delivery of  possession of a property in pursuance of the decision of Military Court is  challenged. Still another petition challenges an action as it is alleged to have  defamed the petitioner.
        The office has  raised an objection that in view of Article 207-A of the Constitution the  petitions are not maintainable. The provisions of the said Article are  reproduced hereunder :-
        "270-A. (1)  The Proclamation of the fifth day of July, 1977, all President's Orders,  Ordinances, Martial Law Regulations, Martial Law Orders, including the  Referendum Orders, 1984, (P. O. No. l I of 1984), under which, in consequence  of the result of the referen dum held on the nineteenth day of December 1984,  General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the  first meeting of the Ma jlis-e-Shoora (Parliament) in joint sitting for the  term specified in clause (7) of Article 41, the revival of the Constitution of  1973 Order, 1985 (P. O. No. 14 of 1985), the Constitution (Second 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, notwithstand ing  anything contained in the Constitution, shall not be called in question in any  Court on any ground whatsoever;
        Provided that a  Pre3ident's Order, Martial Law Regulation or Martial Law Order trade 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, or purported to have been 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 Orders, Ordi nances, Martial Law Regulations, Martial Law Orders,  enactments, notifications, rules, orders or bye-laws, or in execution of or in  com pliance with any order trade or sentence 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.
        (3) All  President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders,  enactments, notifications, rules orders or bye 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 Regula tions, Martial Law Orders,  and enactments, the Legislature ; and
        (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.
        (d) 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 it: compliance with  orders made or sentences passed in exercise or purported exercise of such  powers.
        (5) For the  purpose 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".
            Sub-clause (1) of this  Article provides a blanket cover in respect of all the laws, Martial Law  Orders, Martial Law Regulations, enactments etc., made or issued between  5-7-1977 and 30-12-1985 and these laws are affirmed to have been validly made  in spite of any judgment of any Court to the contrary or in spite of anything  contained in the Constitution and it is clearly provided that they shall not be  called into question on any ground whatsoever. It, therefore, appears to be  clear that the parliament intended to provide complete cover in respect of  these laws and wanted to save them from being challenged in any manner. The  purpose obviously was to avoid any chaos or confusion because if all these laws  which have been made during this period were allowed to be challenged, then the  basis, of the rights and liabilities which had accrued in pursuance of these  laws would have been disturbed and the same would have created a great deal of  difficulty and upheaval. These laws are, therefore, completely saved from the  scrutiny of the Courts and nothing which is contained in the present  Constitution can be made a test or basis for challenging these laws. We have  already held in another Full Bench case of Nazar Muhammad Khan (P L D 1986 Kar.  516) that the validity of the laws including Martial Law Regulations and  Martial Law Orders made between 5-7-1977 and the date on which the Article  270-A come into force i.e. 30-12-1985 could not be questioned. We had arrived  at that decision after considering the various authorities of the Supreme Court  of Pakistan, starting from State v. Ziaur Rahman (P L D 1983 S C 457).  The counsel for most of the petitioners have not challenged the vires of any  Martial Law Order or Martial Law Regulation in these petitions.
        It was really not necessary to reiterate our view  which we have taken in the case of Nazar Muhammad Khan except for the purpose  that Mr. Raja Qureshi bad clearly raised the question of inclusion of M. L. O.  105 to the schedule of M. L. O. 107 to be ultra vires of the Constitution  itself. He urged that as the proviso of clause (1) of Article 270-A of the  Constitu tion had provided that after the 30th of September 1985, and till the  appointed day (30-12-1985) the scope of Martial Law Orders and Martial Law  Regulations would be restricted only to the matters which were incidental to or  were to facilitate the revocation of the proclamation of Martial Law made on  5-7-1977. He asserted that inclusion of M. L. O. 105 in the schedule of M. L.  O. 107 had nothing to do with that object, as M. L. O. 105 had provided for  expropriation of a property and hence schedule of M. L. O. 107 is ultra vires  to that extent.
        The answer to  the challenge made in respect of inclusion off M. L. O. 105 in the schedule of  M. L. O. 107 is that M. L. O. 105 was a Martial Law Order and when the Martial  Law proclamation was being lifted it was absolutely necessary to make a  provision in respect of the existing Martial Law Orders and Martial Law  Regulations and also in respect of the actions taken in pursuance of the same  as well as the pending proceedings. Therefore, any provision which seeks to provide  for the repeal or continuation of a Martial Law Order would clearly be  incidental to the revocation of the proclamation. of Martial Law as it pertains  to the subject of revoking the effect of Martial Law. Whet the Martial Law was  being revoked it is open to the C. M. L. A. to retain some of the provisions  which he had enforced during Martial Law. He, therefore, enforced M. L. O. 107  on 29-12-1985. The whole M. L. O. 107 with serial 9 of its schedule is  reproduced hereunder :-
        "1. (1) This  order may be called the Martial Law (Pending Proceed ings) Order, 1985.
        (2) It shall come  into force at once.
        2. 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 persons 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 the 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 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.
        (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 B', the Force Commander Northern Areas, and for  the expressions "Military Court" or "Special Military  Court" or "Summary Military Court", the 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 Court which  would have jurisdic tion 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 the 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 confirmed,  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 of amputation of  hand and, in other cases, by the Governor con cerned, 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 or 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 proceedings 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 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 1898) 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 Adminis trator 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".
        "SCHEDULE        MARTIAL LAW ORDERS ISSUED BY  THE C. M. L. A.
        Serial M. L. O.                                Subject
    No.  No.
    1.     21 ----------------
    2.     22 ----------------
    3.     23 ----------------
    4.     58.----------------
    5.     66 ----------------
    6.     81 ----------------
    7.     85----------------
    8.     94. ---------------
        9.         105      Regarding  Rehabilitation of Karachi Hotel Project Order, 1985."
        This M. L. O.,  therefore, makes provision for cancellation of all Martial Law Regulations and  Orders except specified in the schedule. It also makes modifications in those  M. L. Os. and M. L. Rs. which are M continued and makes provisions for pending  proceedings and provides validity and propriety action taken under the  cancelled M. L. Os. and M. L. Rs. and also provides for making of petitions in  respect of sentences awarded by Military Court;,
            C. M. L. A.  till 29-12-1985, could choose which M. L. O. and, M. L. R. to retain and which  one of cancel. He cancelled a great number of them but retained some. There was  no embargo upon C. M. L. A. about this choice. He could decide about the  particular M. L. O. or M. L. R. which he wanted to be saved from the effect of  revocation o the Martial Law Order and Martial Law Regulation in pursuance of  the revocation of the proclamation of Martial Law. His choice is, therefore,  not open to question in saving the effect of M. L. O. 105 particularly when  this M. L. O. was made before 30-9-1985.
        The parliament in it's wisdom provided protection to all M.  L. Os. made before 30-12-1985 and hence M. L. O. 107 is free from any challenge  on any basis. We are also clear in our mind that in order to facilitate the  revocation of Martial Law it may be necessary to retain some of the Martial Law  Orders and Regulations and, therefore, retaining of some of the Martial Law  Orders and Regulations cannot be described ash completely irrelevant to  facilitate the revocation of the proclamation of the Martial Law. We cannot  loose sight of the fact that the Martial Law Regulations and Martial Law Orders  have been cancelled by this very M. L. O. 107. Which Martial Law Orders and  Martial Law Regulations are to be retained as ordinary laws even after the  lifting of Martial Law, C is for C. M. L. A. to choose and if a choice is made  by him, then the same could not be challenged. Till 29-12-1985 even Article  270-A with the proviso of it's clause 1, had not come into force on 30-12-1985.  Moreover, as stated above, the parliament itself having provided complete  saving of those provisions of law which were to remain in force on 30-12-1985  in spite) of anything contrary to the same in the constitution, the said law  namely M. L. O. 107 is now sacrosanct from any challenge even to the extent of  inclusion of M. L. O. 105 in its schedule. Consequently all the laws which)  were in force on 30-12-1985 and which had been enforced between 5-7-1977 and  29-12-1985 are completely saved from any challenge and the same cannot be  tested even against a proviso which may be found contrary to, the same in the  constitution itself. It is, however, a different matter that M. L. O. 107 is a  law which can be amended by the concerned legislature like any other law.
        Let us now consider the bar in respect of actions. The bar  provided under clause (2) of Article 270-A of the constitution is in respect of  action taken during 5-7-1977 and 29-12-1985 under any Martial Law Regulation  Martial Law Order, enactmcnt, rule etc. This sub-Article on the face of it  appears to be barring a challenge to these action before any Court on any  ground whatsoever. We have interpreted this article in another Full  Bench case of Nazar Muhammad (P L, D 1986 Kar. 516). But the main argument in  that case was the bar provided under Article 15 of Provisional Constitution  Order of 1981.
        Contention of Mr. Khalid Ishaq, Mr. Abdul Mujeeb  Pirzada, Mr. Abdul Hafeez Lakho, adopted by Messrs Qaim Ali Shah, Nooruddin  Sarki, Aftab Ahmed, Ali Ahmed Tariq, Mirza Abdul Rashid, Raja Qureshi, Muhammad  Saleem and Sabihuddin is that case of Nazar Muhammad decided by Full Bench and  (P L D 1986 Kar. 516) is a decision which was decided on the basis of P. C. O.  of 1981 and hence the same is not applicable in respect of those petitions  which have been filed after revival of the constitution and the revocation of  the proclamation of Martial Law of 5-7-1977 as done on 30-12-1985 and the  repeal of Martial Law Orders and Regulations and particularly the repeal of  Provisional Constitution Order of 1981. They contend that after the repeal of  Martial Law there is now no impediment on the exercise of supervisory  jurisdiction of the High Court under Article 199 of the constitution and also  of Article 4. More particularly after the Fundamental Rights have been  restored, the Courts should enforce the same and test the actions of even  Martial Law Authorities on the basis of Fundamental Rights. They also urged  that the Objectives Resolution is not a mere preamble of the constitution now  but is a part and parcel of the same and it should be applied with vigour by  the Courts to order to achieve the purpose for which Pakistan was created. They  have also pointed out that there is no emergency in the country and therefore  rule of Law should be allowed to have its full play. They have relied upon the  decisions of Supreme Court in cases of Asma Jilani, Ziaur Rahman, Saeed Ahmed,  F. B. Ali, Yamin Qureshi and finally of Fauji Foundation and stressed that  Supreme Court has interpreted the clauses excluding the Supervisory  Jurisdiction of the Superior Courts in a strict manner and has clearly  established that even though Supreme Court is a creature of the constitution  and is bound by the constitution but it has the right of interpreting even  those clauses of the constitution which exclude the jurisdiction of the  superior Courts. Their submission is that even though clause 281 of Interim  Constitution of 1972 and clause 269 of the Constitution of 1973 had tried to  exclude the jurisdiction of the superior Courts in a comprehensive manner in  respect of past actions of military authorities, yet the Supreme Court had  interpreted them in a manner that they were not allowed to cover those cases  where the actions were either mala fide, coram non judice or without  jurisdiction. They stressed that such inter pretation was made by Supreme Court  in spite of the fact that at that time Fundamental Rights stood suspended,  emergency was in force and the Objectives Resolution was merely a preamble to  the constitution.
        The power to  exercise the supervisory jurisdiction of the High Court is contained in Article  199 of the constitution which has been restored from 30-12-1985. Previous to  that such powers were not available at least with effect from March, 1961 when  the Provisional Constitution Order was enforced. Particularly paras. 5(a), 5(b)  and 5(c) of the Article 15 of the said P. C. O. did not permit the High Court  to exercise its jurisdiction in respect of actions taken under the provision of  Martial Law Orders and Regulations arid especially the actions of Martial Law  authorities and the decisions of Martial Law Courts. However, the said P. C. O.  of 1981 has been repealed with effect from 30-12-1985 and there is no more any  Martial Law in the country. There would have been thus no bar in the  constitution to the exercise of jurisdiction under section 199 in respect of  actions of the Martial Law authorities if the bar of Article 270-A had not been  introduced. Of course the effect of the actions taken under the repealed  provisions of law, during their subsistence, is saved by section 6 of the  General Clauses Act. But section 6 would not have excluded the jurisdiction of  Article 199 as section 6 of General Classes Act is merely a sub-constitutional  provision and hence it cannot offset the effect of Article 199 particularly if  actions were not past and closed. At the   moment we are not considering the bar provided under Martial Law Orders  107 which we will examine later as we wish to confine ourselves at this stage  to the bar provided in the constitution itself.
        Mr. Wajihuddin has  argued with a great deal of vehemence that we should construe the bar of  Article 270-A as a complete bar to the exercise of jurisdiction in respect of  actions taken under various Martial Laws. His argument was that Legislature  being aware of the interpretation put by the Supreme Court on Art. 281 of 1972  Constitution or Art. 269 of the Constitution of 1973 should be presumed to have  completely saved the effect of all actions taken under different Martial Laws  by various authorities and military Courts by enactment of Article 170-A which  is comprehensive in its coverage and does not allow any scope of interference  now. He was of course frank enough in conceding at the outset that the High  Court had the judicial power to determine the effect of Article 270-A and hence  it could interpret the same, but at the same time asserted that ouster should be  interpreted to be complete.
            Let us  examine Article 270-A. Its clause-I gives validity to all the law including  Martial Law Orders and Regulations made during 5-7-1977 t 30-12-1985 and  provides that the same shall not be called into question in any Court on any  ground whatsoever notwithstanding any judgment of any Court or anything  contained in the constitution. Clause-I without its proviso has received  the attention of the Supreme Court in several cases like Screed Ahmed's case (P L D 1974 S C 151) and Fauji Foundation case (P L D 1983 S C 457
) and it has been interpreted as to oust the jurisdiction of the  Courts to question the legality of such laws. We have respectfully agreed with  this view in the case of Nazar Muhammad decided by us.
            We will leave  the proviso of clause-I of Article 270-A as it covers a small period of  30-9-1985 to 30-12-1985, but it does provide a scope for examining the laws  made by the C. M. L. A. during this period.
        More important in respect of the actions of Martial Law  Authorities is clause-2 of Article 270-A which has provided that actions taken  by the Martial Law authorities during the above specified period shall not be  called into question on any ground whatsoever notwithstanding any judgment of  any Court.
        Fortunately we  have before us some of the decided cases where a similar provision has been for  consideration before the Supreme Court. We at the very outset state that  amended Article 281(2) of the Interim Constitution of 1972 was completely in  the same language in which the present clause (2) of Article 270-A is found.  Moreover, clause (2) of Article 269 of the Constitution of 1973 was also in the  same language and we have the interpretation of Supreme Court in respect of  these provisions. In the case of Ziaur Rahman (PLD1973SC49
) the unamended clause of Article 281 of the 1972  Constitution came for consideration before the Supreme Court and the Supreme  Court held that in spite of the bar provided in the said clause the  jurisdiction of the superior Courts to scrutinize actions of military  authorities was .not completely barred in respect of those action which were mala fide, without jurisdiction or coram  non judice.At that time the unamended Article  281(2) of 1972 Constitution was interpreted by the Supreme Court in the case of  Ziaur Rahman and the words "shall not be called in question in any Court  on any ground whatsoever" were not found in the said clause (2) of Article  281. Yet the Supreme Court was of the above view and held that jurisdiction was  not completely barred  at least in  respect of above three categories of action.
        However, Article  281 clause (2) was later on amended to include the words "and shall not be  called in question in any Court on any ground whatsoever". Thus, the  inclusion of these words in Article 281(2) brought it completely at par with  the present Article 270-A of the Constitution and, therefore, view of the  Supreme Court in respect of the amended Article 281 of 1972 Interim  Constitution, shall be very relevant for our purpose. 
        In the case of  Saeed Ahmad the amended Article 281(2) came up for consideration before the  Supreme Court and the Supreme Court held that  it's view in the case of Ziaur  Rahman that actions which were mala fide, without jurisdiction or coram non  judice were still open to challenge before the Supreme Curt in spite of the  comprehensive words used in clause (2) of Article 281 of the Interim  Constitution debarring the Courts from entertaining any challenge to such  actions. It would be worthwhile to reproduce the observation of Chief Justice  Hamood-ur-Rahman in the above case at page 169 :                               
        "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 acts, 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,  Enact ment, Rules. Orders. Bye-Laws, etc. and to nothing else."                                                                                          
        The same amended  Article 281 of the Interim Constitution of Pakistan, 1972 came up for  consideration in the case of Fauji Foundation v. Shamimur Rahman and it was  held that exercise of judicial power under Article 201 was subject to  constitutional limitations in view of ouster clause in Article 281(2). In  respect of the word "Validly" it was explained at page 587 that  validity was confined to competence alone. In this very ruling while  considering the effect of immunity from scrutiny provided for the laws and  actions in Article 281(2) of the 1972 Constitution the Supreme Court observed  in para 149 as under :-----
        "In the  background in which Article 281 was enacted, the object was to legalise not  only the legal measures but also the actions taken thereunder and to indemnify  the person from prosecution who had taken action under these legal measures.  This was in the nature of an indemnity clause for it provided legal exemption  from incurred liabilities or penalties as a result of the promulgation of the  legal measures by a usurper. It favourably compares with sections 1, 5 and 6 of  the Indemnity Act, 1120, enacted by the British Parlia ment after the First  World War to give protection to the persons and so also to the laws and the  actions taken thereunder. In essence both under the Indemnity Act and under  Article 281 validation is given and the jurisdiction of the Courts barred. The  only exception under our constitutional provision is that it has been construed  not to cover actions which are mala fide or coram non judice or without  jurisdiction. In all other cases validation is conclu sive."
            It is,  therefore, apparent that the consistent view of the Supreme Court while  considering provision similar to Article 270-A was that if the actions were  mala fide, coram non judice or without jurisdiction, then in spite of the  validity conferred on such actions and the immunity provided in Article 218(2)  of the Interim Constitution, the superior Courts were not completely debarred  from scrutinising the actions. However, the scope of scrutiny was limited to  actions which were mala fide, coram non judice and without jurisdiction. In  other respects the immunity was considered complete.
            Since the  Supreme Court of Pakistan had interpreted a provision similar to Article 270-A  of our Constitution several times, therefore it is reasonable to conclude that  the legislature was aware of the interpretation placed by the Supreme Court of  Pakistan on a similar provision. Therefore, when it enacted clause (2) of  Article 270-A of the Constitution the legislature knew that it is providing  validity and immunity to the actions to the extent already explained and  interpreted by the Supreme Court and that this validity did not extend to  action which were mala fid coram non judice or without jurisdiction.
            Therefore by  reading only clause (2) of Article 270-A without taking into consideration the  other provisions of the same Article, it would be clear that the legislature  had intended that if the impugned actions were mala fide, without jurisdiction  or coram non judice, then the immunity provided under Article 270-A Clause (2)  would not save them completely from the scrutiny of the superior Courts and,  therefore, clause (2) of the Article 270-A does not provide a complete bar in  respect of such actions.
            However,  another important clause of Article 270-A is clause (5) makes a provision which  is completely distinct and different from the provisions which have so far been  in the so-called indemnity clauses. We reproduce this clause;-----
        "(5) For the  purpose 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."
            The ouster of  jurisdiction is however an indirect effect of this clause. This clause does not  as such oust the jurisdiction of this Court under section 199, but it does make  it mandatory for everyone including Courts to deem that an action as referred  to in clause 2 of Article 270-A was taken bona fide and for the purpose for  which it was meant. Therefore, the effect of this clause appears to be that  although an action may not appear to have been taken in a 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 to have  been for the purpose for which it was intended to be under the statute yet this  deeming clause, which is a part of the constitution itself, will not leave it  open to the Courts or to anyone else to declare that the action was not taken  for the purpose provided in the statute, but on the other hand to treat it as  the action taken for that purpose.
        It, therefore, appears that the legislature has closed the  door of enquiry and scrutiny to the extent of the challenge based on mala fide  nature of the action. Thus, the three types of mala fide actions where a person  taking action on account of some prejudice or ill will against the aggrieved  person, or an action taken for the purpose of benefiting the doer of the action  for his personal benefit or for the benefit of relations and friends or still  an action which is not for the purposes intended in the statute under which it  is taken but is apparently for a different or colourable or 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 fide, coram non judice and without  jurisdiction actions, is now, by clause 5 closed in respect of mala fide  actions also. Therefore, the scope of enquiry under Article 199 is now narrowed  down to only two types of actions namely coram non judice and without juris diction.  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.
            No elaborate discussion is necessary to consider the effect  of deeming clause. It has been interpreted to provide an artificial cloak for  an action which may in fact be different but law makes it look like the one the  deeming clause wants 'it to be. Clause 5 of Article 270-A is not a part of  ordinary law which is sub constitutional, but it is a part of constitu tion  itself and since the jurisdiction of the Court under Article 199 is subject to  the Constitution, therefore, the High Court has to give effect to clause 5 of  Article 270-A and cannot brush it aside as the High Court is itself the  creature of the constitution and cannot act in contravention of the  Constitution. Hence the deeming clause 5 of Article 270-A has the effect of  making the actions specified in clause (2) of Article 270-A as the actions  taken in good faith and for the purpose intended thereby.
        If there be any  doubt about the effect of clause 5 of Article 270-A as interpreted by us then  with respect we will invite reference to discussion of mala fides" in P L  D 1974 S C 151 at page 170 (case of Saeed Ahmed) which is reproduced here in  extenso and which situation appears to be now covered and served by clause 5 :-
        " Mala  fides' literally means  in bad faith'. Action taken in bad faith is usually  action taken maliciously in fact, that is to say, in which the person taking  the action does so out of personal motives either to hurt the person against  whom the action is taken or to benefit oneself. Action taken in colourable  exercise of powers, that is to say, for collateral purposes not authorised by  the law under which the action is taken or action taken in fraud of the law are  also mala fide. It is necessary, therefore, for a person alleging that an action  has been taken mala fide to show that the person responsible for taking the  action has been motivated by any one of the considerations mentioned above. A  mere allegation that an action has been taken wrongly is not sufficient to  establish a case of mala fides, nor can a case of mala fides be established on  the basis of universal malice against a particular class or section of the  people. Thus, action taken, for instance, to acquire lands or take over  industries or banks on the basis of a policy intended for introducing a more  socialistic system cannot be characterised as action taken mala fides. But in  order to make out a case of mala fides, an individual must establish that his  land was taken not for the purpose authorised by the law but for the personal  aggrandisement of the person empowered with the power to make the order of  acquisition, or because the person so authorised to take action bore any  personal grudge against the person in respect of whose lands or properties  action has been taken. Similarly, if the acquisition is authorised in certain  specified purposes, then the taking of action in such a case for purposes not  so specified or in circumstances not provided for by the law would amount to  colourable exercise of power or a fraud upon the law."
            It would,  therefore, be clear that the effect of clause-5 of Article 270-Al is to avoid  the effect of interpretation of mala fides by the Supreme Court as reproduced  in above para. It, therefore, saves challenge based on any kind of mala fides  but does not save the action from the challenge based on coram non judice or  without jurisdiction.
        After all there must be some purpose assigned to the  exclusion of provision like Article 15 of P. C. O. from Article 199 of the  Constitution or even from Article 270-A. If the legislature had intended to  exclude the jurisdiction of Courts completely then it would have done so by  merely incorporating such provision in either Article 199 or Article 270-A, but  it is not having done so shows that complete ouster of the Courts jurisdiction  under section 199 was not intended but only partial exclusion was intended.
        The words "Notwithstanding any judgment of any  Court" used in M clause (2) Article 270-A cannot be construed to exclude  the interpretation of the Supreme Court upon such words. The only meaning given  to these words could be that if there had been a judgment of any Court like the  judgment in the case of Asma Jeelani (PLD1972SC139), where all the laws made by  usurper General Yahya were declared void or a judgment in the case of Mrs.  Nusrat Bhutto v. Federation of Pakistan (PLD1977SC657), which had saved the  general superintendence of the Courts in respect of all actions of Martial Law  Authorities by declaring that C. M. L. A. Order l of 1977 was not valid to the extent  of exclusion of supervisory jurisdiction of Supreme Court, then the effect of  these judgments would have been lost by the words "Notwithstanding any  judgment of any Court". However, the inter pretation of the Supreme Court  upon the use of similar words is not deemed to be excluded by such expression  as the same is of universal application.
        The discussion  about actions-without-jurisdiction and decisions coram non judice would not be  complete without quoting the examples of such actions. In Ziaur Rahman's case  (supra), the following two examples were given at page 86 which are  sufficiently instructive.
        "Thus, if an  act can be done only by a Chief Martial Law, Adminis trator, then if the same  is done by a Sub-M. L. A., he cannot possibly claim that he purported to act as  C. M. L. A.".
        "Similarly,  if a trial can be held only by a Special Military Court, then a Summary  Military Court cannot hold the trial and yet claim that it purported to act as  a Special Military Court."
        Mr. Rashid Akhund  who had argued on behalf of the Attorney-General of Pakistan had laid great  stress upon Martial Law Order 107 as the law barred the jurisdiction of the  High Court in respect of the actions taken by the Martial Law Authorities  during the relevant period. His submission was that the provisions of M. L. O.  107 read in conjunction with the Constitution namely Article 270-A place a  complete bar to the entertainment of Writ Petitions in respect of actions of  Martial Law Authorities. He argued that M. L. O. 107 was a special law in  respect of the saving of actions of Martial Law Authorities and, therefore, it  should be preferred to the general law contained in Articles 270-A (2) and (5)  of the Constitution which were general clauses in respect of the actions of all  the authorities during the relevant period. We have not been able to grasp the  signific ance of reading the Constitution and Martial Law Order in conjunction  with each other. We have seen that  Article 270-A (2) and (5) does provide some bar and restriction to the  entertainment of Constitutional Petitions in respect of the actions of Martial  Law Authorities and actions under the Martial Law by different other  authorities but the bar is not complete and scope is still left for scrutiny if  the challenge is based on the action being coram non judice or without  jurisdiction.
        We would now  examine the provisions of M. L. O. 107 which was pro mulgated on 29-10-1985.  Para. 3 of the M. L. O. has cancelled all Martial Law Regulations and Martial  Law Orders with effect from 30-12-1985 except those specified in the schedule.  This para. is hardly relevant for the purpose of saving the effect of the  actions under the repealed provisions of Martial Law.
            Para. 4 is really  the relevant provision which has been strongly relied upon by Mr. Rashid  Akhund. It provides that the cancellation of the Martial Law Regulations and  Martial Law Orders 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. The argument was that this  provision not only saves the effect of the actions taken under the repealed  Martial Law Orders but at the same time it also provides a deeming clause in p  respect of those actions and makes those actions as having been properly and  validly taken. He suggested that the word "properly" was more comprehensive  in its meaning and, therefore, even if action by the Military Authorities was  alleged to be mala fide, coram non judice or without, jurisdiction, the same is  saved by the words which require that those actions shall be deemed to be  proper and valid. In Black's Law Dictionary, Vth Edition page 1095 the word  "proper" is shown to be meaning "that which is fit; suitable;  appropriate; adapted; correct; reasonably sufficient" We are not in  agreement with the learned counsel that para. 4 of M. L. O. 107 which is  sub-constitutional would take away the jurisdiction of the High Court under  Article 199. Moreover, in the first instance, the word "proper" would  appear to meet only those challenges where the action is said to be improper,  unreasonable, irregular or not in accordance with the facts or not in  accordance with procedure. It cannot cover those actions which are alleged to  be without jurisdiction or coram non judice. The word "proper"  appears to be relevant to the deficiency on merits of a matter or other  impropriety or the irregular or improper procedure adopted by the Martial Law  Authorities and cannot cover those cases where an action is alleged to be  completely without jurisdiction and absolutely not covered by the law under  which the particular authority has acted. Therefore, the actions which were  without jurisdiction are not rectified or saved by deeming them to be proper  actions or decisions.
            The other  words used in clause (4) of M. L. O. 107 is "validly done or taken."  The expression "validly" is certainly. far more comprehensive than  "properly" and it covers those cases where it is alleged that an  action is without lawful authority, or not in accordance with the law under  which the same has been taken. It is, therefore, a much stronger word than the  previous word "proper". But even the expression "validly"  will not cover those actions which were either coram non judice or without  jurisdiction. It would be useful to point out here that the very words  "validly done or taken" had been used in Article 281(2) of 1972  Constitu tion and repeated in Art. 269(2) of 1973 Constitution and again  repeated in Art. 270-A (2) of the present Constitution, and the same has been  authoritatively held by the Supreme Court in different cases not to include  those cases where the action is alleged to be either mala fide, without lawful  authority or coram non judice. Therefore even "validly done or taken"  used in para. 4 of M. L. O. 107 does not deprive the High Court of scrutinizing  those actions of the Martial Law Authorities which are com pletely without  jurisdiction or coram non judice. We have seen above that jurisdiction of the  High Court in respect of enquiry about mala fide actions had now been excluded  by clause (5) of Article 270-A of the Constitution in an indirect manner.
            The result,  therefore, is that even M. L. O. 107 does not oust the jurisdiction of the High  Court under Article 199 of the Constitution.
        In this respect we  may also note the stress laid upon M. L. O. 107 by Mr. Rashid Akhund as well as  by Mr. Wajihuddin asserting that it was a supra constitutional measure. We have no reservation in repelling this  submission. M. L. O. 107 might have been a supra constitutional measure on  29-10-1985 when it was invoked but it is certainly not supra constitu tional  measure with effect from 30-12-1985 and it simply has the effect of an ordinary  law or a sub-constitutional measure. It is of-course saved from repeal by  paragraph 10 of this M. L. O. itself which allows this M. L. O. to have effect  notwithstanding the repeal of Martial Law R Regulations and Martial Law Orders.  Mr. Khalid had contended that it was a still born legislation, but its para. 10  gave life to it and in our opinion it is a subsisting law.
        By virtue of the provisions of clause (3) of Article 270-A,  M. L. O. 107 will continue to be in force until it has been repealed or altered  by the competent authority. However, clause (6) of Article 270-A provides that  the Martial Law Regulations and Martial Law Orders which are specified in the  VII Schedule of Constitution may be amended in the manner provided for  amendment of the Constitution. Therefore, those P. Os. and Ordinance are  similar to a provision of the constitution to the extent of its amendment which  is not by a more majority two houses but requires a particular percentage of  votes. But M. L. O. 107 is not found in the VII Schedule) of the Constitution  and, therefore, it cannot be treated at par with any) provision of the  Constitution. The same clause (6) of Article 270-A provides) that all other  laws referred to in clause (1) may be amended by the appropriate legislature  and, therefore, this M. L. O. 107 can be amended by the appropriate by ordinary  majority and it is now ordinary sub- constitutional legislation.
        Conclusion, therefore, is that M. L. O. 107 cannot affect the  jurisdic tion under section 199 of the Constitution. It will at the most  provide a defence to the petition under Article 199 of Constitution by clothing  the actions of Martial Law Authorities with legality and propriety but nothing  further. It does not have the effect of placing any bar upon seeking the remedy  provided by the constitution which is superior to M. L. O. 107.
        Another objection  raised by office in some of the petitions was that there was an alternate  remedy available to the petitioners in respect of decisions of Martial Law  Courts in the form of a petition under para. 7 of M. L. O. 107. Some of the  petitioners' counsels whose clients had made the petitions under para. 7 of M.  L. O. which had been dismissed and also those petitioners whose mercy petitions  were treated as petitions under para. 7 of M. L. O. 107 and dismissed as such,  had contended that they had been denied a right of hearing which should be  deemed to be apart of every law and hence they had been condemned unheard and  the orders of dismissal of such petitions were a nullity in law and were coram  non judice. They also submitted that such petitions were, therefore, not an  alternate remedy and in any case they had exhausted that remedy.
        Counsels in the  other petitions particularly Mr. Abdul Hafiz Lakho took up the position that a  petition under para. 7 of M. L. O. 107 is hardly a remedy as it is merely a  petition in respect of the sentence only without providing a challenge to the  legality of the trial. Submission was that it was more or less a mercy petition  similar to the one provided under Pak. Army Act and it was meant to seek the  plenary powers of the President or the Governor on grounds of clemency. It was  not in the nature of a right given to the convict to challenge his entire  conviction in a criminal appeal nor it was in the nature of a confirmation case  where the High Court was obliged on its own to examine the merits of a case  where a person has been sentenced to death.
        Mr. Imam Ali Kazi  who had argued on behalf of the Federal Government in some of the petitions had  taken a positive stand that petition under para. 7 of M. L. O. 107 was only  mercy petition as it did not provide an opportunity to challenge the merits of  the case, but was confined to seek reduction or remission   of the sentence. He  argued that the President or the Governor with the concurrence of the President  had of-course the power to even annul the sentence or conviction, but doing so  was their own and absolute privilege and not the right of the petitioner to  seek. He, therefore, submitted that no right of hearing was, therefore,  involved. The other learned counsels for the Government and for the Attorney  General adopted the same position.
            In the light  of these submissions it is hardly possible to treat a petition under para. 7 of  M. L. O. 107 as adequate or alternate remedy to a writ petition under Article  199 of the Constitution. It appears to be merely different form of a mercy  petition as provided under sections 401 to 402-A of Criminal Procedure Code and  under Article 45 of the Constitution. This petition is not either an appeal or  a revision against conviction a known in sections 410 to 423 or section 435 to  section 439 of Criminal Procedure Code. Since this petition under para. 7 of M.  L. O. 107 is confined in it a scope towards reduction or remission or sentences  only, therefore, merits cannot be attacked and even the criticism in respect of  merits is directed only to secure the reduction of sentence and hence it is no  remedy for a person who challenges his entire trial and conviction.
        Provisions of para. 7 of M. L. O. 107 are thus more or less  similar to a mercy petition and para. 9 of M. L. O. 107 allows the President  and the Governor to exercise the same powers in respect of petitions under  para. 7 which the C. M. L. A. or M. L. A. could respectively exercise under  Army Act or Rules where no hearing was ever contemplated or visualized.  Therefore, by this process the provisions of Pakistan Army Act in respect of  mercy petitions are again brought into play and it is no body's case that ever  any person has been heard in respect of mercy petitions because sue petitions  merely seek the exercise of plenary and executive powers of the authorities and  are not a vested right of the person aggrieved.
            Therefore,  petitions under para. 7 of M. L. O. 107 are neither an adequate remedy for a  person who considers himself to be wrongly convicted by a Martial Law Court,  nor these petitions give a right to clan a personal hearing. In fact, in such  cases a personal hearing by the President or the Governor is far-fetched in  view of the high Offices and multifarious and important responsibilities of  these dignitaries.
        We cannot, however, refrain ourselves from pointing out that  in view of the scores of challenges made by aggrieved persons on innumerable  grounds against convictions by Martial Law Courts, it may have been more  conducive to public confidence, particularly after the revival of the  Constitution and restoration of Fundamental Rights, if some sort of opportunity  of hearing had been provided to the aggrieved parties to ventilate their  grievances before an appropriate tribunal to the extent of challenge allowed in  Zia-ul-Rehman's case by the Supreme Court or at least to the extent of  challenge now available in spite of clauses 2 and 5 of Article 270-A, the same  would have cleared the air a great deal and would not have burdened the High  Court with scores of petitions. Those tribunals could consist of Retired Judges  of the High Court or even Senior Retired Army Officers or retired Senior Civil  Servants.
        NAIMUDDIN, C. J.-I  read the draft opinion proposed to be delivered by my learned brother Muhammad  Zahoorul Haq, J, I deem it proper without dealing in detail with the facts or  submissions or arguments of the learned counsel for the petitioners or  respondents or Advocate--General to add as follows---
        2. Mr. Abdul  Hafeez Lakho submitted that Article 270-A of the Constitution is violative of  Article 2-A of the Constitution and those parts of it which are so violative  are invalid.
        3. Mr. Khalid M.  Ishaque also while replying to the arguments of the learned Advocate-General  and other counsel appearing for the respondents read several paragraphs at  pages (xi) to (xviii) from the book "The Consti tution of the Islamic  Republic of Pakistan", edited by Mr. Makhdoom Ali Khan, Bar-at-Law, in  support of the contention that the amendment made in the Constitution by  inserting Article 270-A has changed the basic structure of the Constitution and  is hit by Article 2-A of the Constitution which was inserted by the President's  Order No. 14 of 1985, with effect from 2nd March, 1985, and Article 4 of the  Constitution although he clearly stated that for the purpose of his petition he  need not question Clause (1) of Article 270-A of the Constitution, for he was  questioning an act which is directly covered by Clause (2) of Article 270-A.  Mr. Makhdoom Ali Khan in his aforesaid book has clearly brought out the  difference of opinion that has prevailed in the India Supreme Court on the  question of power of the Parliament to amend the Constitution that may be  noticed here. But before doing so I may mention the cases referred to by him on  the point. These are :-----
        Sankari  Prasad Singh Deo v Union A I R 1951 S C 458 ;Sajjan Singh and others v. The  State of Rajastan and others A I R 1965 S C 845 ; L. C. Golak Natb and others  v. Staff of Punjab and another. A I R 1967 S C 1643 ; Rustom Cavasjee Cooper v.  Union of India A I R 1970 S C 564 ; H. H. Maharajadhiraja Madhav Rao Jivaji Rao  Scindia Bahadur and others v. Union of India A I R 1971 S C 530 ; His Holiness  Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another A  I R 1973 S C 1461 ; Smt. Indira Nehru Gandhi v. Shri Raj Narain A I R 1975 S C  2299 ; Minerva Mills Ltd. and others v. Union of India and others A I R 1980 S  C 1789 ; Waman Rao and others v. Union of India and others A I R 1981 S C 271  and Sanjeer Coke Manufacturing Co. v. Bharat Coking Coal Ltd. AIR 1983SC239.
        4. In Sankari  Prasad's case the Constitution. (First Amendment) Act, 1951, was challenged on  the ground that an amendment of the Constitution was law within the meaning of  Article 13(2) of the Indian Constitution but the same was rejected for the  reason that though amendment of the Constitu tion is law but there is a  distinction between legislative and constituent power. The word  Law' used in  Article 13(2) (ibid) was found not to include a constitutional amendment made  in exercise of constituent power.
        5. Thereafter  Seventeenth Amendment in the Constitution was challenged in Sajjan Singh's case  on the ground that it affected the jurisdiction of the superior Courts and it  was void for not having been enacted in accordance with the special procedure  laid down in the proviso to Article 368 of the Indian Constitution. The Supreme  Court unanimously rejected the contention.
        6. This amendment  was again challenged in L. C. Golak Nath's case wherein the heirs of Golak Nath  were aggrieved by an order under the Punjab Security of Land Tenures Act, 1953,  through which a certain area of land was held surplus in their hands. It was  pleaded on their behalf that this property could not be taken from them as it  violated their fundamental rights under Articles 14 and 19 (f) (g) and that the  said Act as the Con stitution First, Fourth and Seventeenth Amendment Acts of  1951, 1955, and 1964 were respectively void, being beyond the powers of the  Parlia ment. In view of doubts cast by Justices Mudholkar and Hidayatullah in  the minority opinion on the correctness of Sankari Prasad's case a Bench of 11  Judges was constituted by the Chief Justice of India to hear the case and by a  majority of 6 to 5 the Supreme Court of India decided that Sankari Prasud and  Sajjan Singh were not good law, and held that First, Fourth, and Seventeenth  Amendments were incompetently enacted and that a constitutional amendment was  law within the meaning of Article 13 (2). Accordingly, it was held that the  Parliament had no power to amend Articles 12 to 35 of Constitution so as to  abridge fundamental rights. The view expressed in the aforesaid case was  followed in Rustom Cavasjee Cooper v. Union of India (A I R 1970 S C 564) and  H. H. Maharaja Dhiraja Madhav Rao Jivaji Rao Scindia Bahadur and others v.  Union of India (AIR 1971 SC530). Thereafter a number of amendments were made to  nullify the effect of these cases by Twenty  fourth, Twenty-fifty, Twenty-sixth  and Twenty-ninth Amendments. All these amendments were challenged in Kesavnanda  Bhareti's case. There was already a judgment of 11 Judges. Therefore, this time  still a larger Bench of 13 Judges was constituted. The following summary of the  judg ment was signed by nine Judges (1) Golak Nath's case is overruled ;
        (2) Article 368  does not enable Parliament to alter the basic structure or framework of the  Constitution ;
        (3) The  Constitution (Twenty-fourth Amendment) Act, 1971 is valid ;
        (4) Section 2 (a)  and 2 (b) of the Constitution (Twenty-fifth Amend ment) Act, 1971 is valid ;
        (5) The first part  of section 3 of the Constitution (Twenty-fifth Amend ment) Act, 19711 is valid.  The Second part namely, "and no law containing a declaration that it is  for giving effect to such a policy shall be called in question in any Court on  any ground that it does not give effect to such policy" is invalid ;
        (6) The  Constitution (Twenty-ninth Amendment) Act, 1971 is valid. The Constitution  Bench will determine the validity of the Constitu tion (Twenty-sixth Amendment)  Act, 1971 (relating to abolition of privy purses and privileges of princes) in  accordance with law."
        7. After the  aforesaid decision, the question of the violation of the essential framework of  the Constitution again came up for consideration in Smt. Indra Nehru Gandhi's  case. During the pendency of her appeal in the Supreme Court the Constitution  (Thirty-ninth Amendment) Act, 1975, was passed, whereby Article 71 was amended  and Article 329-A was added to the Constitution. The latter incorporated in the  Constitution special provisions for the election of Prime Minister and Speaker  and validated such election even if it voided by the Court and made all laws  applicable to election petitions inapplicable to such election. The Supreme  Court following Kesavnanda's case invalidated clause (4) of Article 329-A,  holding that the clause was a legislative judgment which eminently destroyed  the basic structure of the Constitution. The clause (4) was in the following  term. 
        "(4) No law  made by Parliament before the commencement of the Constitution (Thirty-ninth  Amendment) Act, 1975, in so far as it relates to election petitions and matters  connected therewith, shall apply or shall be deemed ever to have applied to or  in relation to the election of any such person as is referred to in clause (1)  to either house of Parliament and such election shall not be deemed to be void  or ever to have become void on any ground on which such election could be  declared void or has, before such commencement been declared to be void under  any such law and notwithstanding any order made by any Court before such  commencement, declaring such election to be void, such election shall continue  to be valid in all respect and any such order and any finding on which such  order is based shall be and shall be deemed always to have been void and of no  effect."
        8. To nullify the  effect of this judgment Parliament passed the Con stitution (Forty-second  Amendment) Act, 1976. Section 4 amended Article 3l-C and section 55 inserted  the following clauses (4) and (5) in Article 368;
        "(4) No  amendment of this Constitution (including the provisions of Part III) made or  purporting to have been made under this Article (whether before or after the  commencement of section 55 of the Constitution (Forty-second Amendment) Act,  1976, shall be called in question in any Court on any ground ;
        (5) For the  removal of doubts, it is hereby declared that there shall be no limitation  whatever on the constituent power of Parliament to amend by way of addition,  variation or repeal the provisions of this Constitution under this  Article."
        9. The Minerva  Mills and Waman Rao's cases affirmed the view taken by the Indian Supreme Court  as to the Kasavananda's doctrine of immunity from legislation with regard to  basic features of the Constitution.
        10. The case of  Smt. Indira Nehru Gandhi was considered by the Supreme Court of Pakistan in the  case of Fauji Foundation v. Shamimur Rehman (P L D 1983 S C 457) and the  doctrine of inviolation of basic structure of the Con stitution was not  accepted and it was held in paragraph 201 of the judgment that it was difficult  to follow that the Supreme Court of India held in Smt. Indira Nehru Gandhi's  case as the conclusion rested eminently on the inter pretation of the amending  provision which had no constitutional restriction. Additional reason stated was  that the view expressed was not consistent with that in earlier two decisions  namely, Sankari Prasad Singh Deo v. Union of India (AIR 1951 SC458) and Sajjan  Singh and others v. The State of Rajastan and others (AIR 1965 S C 845),  wherein it was held that the amending power was without any limitation. I may  quote the paragraph herein below;
        "201.-For all  these reasons it appears to me to be difficult to follow what the Supreme Court  held in Mst. Indira Nehru Gandhi's case as the conclusion rested eminently on  the interpretation of the amend ing provision which had no constitutional  restrictions, the more so when its view was not consistent with that in the  earlier two cases namely. Sankari Prasad Singh Deo v. Union of India A I R 1951  S C 458 and Sajjan Singh and others v. The State of Rajastan and others A I R  1965 S C 845 wherein it was held that the amending power was without any limitation."
        11. It may be  pertinent to mention that Shamim Hussain Qadri, J., (as he then was) in the  case of Darvesh Muhammad Arbey v. Federa tion of Pakistan (P L D 1980 Lab. 206)  had observed that:
        "The  Parliament is not sovereign to amend the constitution according to its likes  and dislikes much less than changing the basic structure of the  constitution."
        This opinion was commented upon by  Muhammad Haleem, C. J., in the case of Fauji Foundation v. Shamimur Rahman  (supra) and it was observed at page 627 of the report:-----
        "This opinion  of the learned Judge is based on Kesavananda Bharati's case which again is  subject to the same criticism as I ventured to highlight while reviewing Smt.  Indira Nehru Gandhi's case. It does not advance the case of the respondent any  further as the learned Judge failed to notice that the amending power unless,  it is restricted can amend, vary, modify or repeal any provision of the cons titution."
        12. In The  Federation of Pakistan v. Saeed Ahmed Khan (supra), the learned counsel for the  respondents relying on the statement of law contain ed in Vol. 16 of the corpus  juris secundum, impressed upon the Court to constantly keep in mind the main  purpose sought to be accomplished by the adoption of the Constitution and to so  construe the same as to effectuate rather than destroy that purpose, which,  according to him was enshrined in Article 3 of the Interim Constitution and  Article 4 of the permanent Constitution. While considering the submissions  Hamood- ur-Rahman, C. J., observed at page 166 of the report as follow:----
        "We are not  unmindful of these provisions but after our decision in Zia-ur-Rahman's case we  are no longer in a position to any that the Martial Law Regulations, under  which the executive actions impugned in the present cases were taken, have not  acquired the status of a 'law' within the meaning of these Articles. In any  event it is not possible for us to declare that a provision of the Constitution  is not law because it seeks to oust the jurisdiction of the Courts with regard  to certain subjects without affecting the judicial power itself. We cannot  strike it down. We can only interpret it, according to the accepted rules of  interpretation and define its nature and scope."
            13. Now, firstly, we are bound  by the dictum of the Supreme Court under Article 189 of the Constitution;  secondly, our Constitution does not contain any provision limiting the powers  of the Parliament, as claimed, to amend the Constitution. It may be pertinent  if, I may quote Article 238 of the Constitution herein below:
        "238.-Subject  to this Part, the Constitution may be amended by Act of Majlis-e-Shoora  (Parliament)."
        14. It is obvious  that only limitation provided in this Article is subject to this part' which  contained only two Articles, i.e., Articles 238 and 239. It may be convenient  for ready reference, if I may quote herein below Article 239 in extenso:----
        "239.-(1.) A  Bill to amend the Constitution may originate in either House and, when the Bill  has been passed by the votes of not less than two-thirds of the total  membership of the House, it shall be transmitted to the other House.
        (2) If the Bill is  passed without amendment by the votes of not less than two-thirds of the total  membership of the House to which it is transferred under clause (4), be  presented to the President for assent.
        (3) If the Bill is  passed with amendment by the votes of not less than two-thirds of the total  membership of the House to which it is transmitted under clause (I), it shall  be reconsidered by the House in which it had originated, and if the Bill as  amended by the former House is passed by the latter by the votes of not less  than two-thirds of its total membership it shall, subject to the provi sions of  clause (4), be presented to the President for assent.
        (4) A Bill to  amend the Constitution which would have the effect of altering the limits of a  Province shall not be presented to the President for assent unless it has been  passed by the Provincial Assembly of that Province by the votes of not less  than two-third of its total membership.
        (5) No amendment  of the Constitution shall be called in question in any Court on any ground  whatsoever.
        (6) For the  removal of doubt, it is hereby declared that there is no limitation whatever on  the power of the Majlis-e-Shoora (Parlia ment) to amend any of the provisions  of the Constitution."
            15. It is  clear that clause (5) of this Article expressly provides that no amendment of  the Constitution shall be called in question in any Court on any ground  whatsoever and clause (6) further provides for the' removal of doubt, that  there is no limitation whatever on the powers of Majlis-e-Shoora (Parliament) to  amend any of the provisions of the Constitution. Even before substitution of  Article 239 by the President's Order No. 14 of 1985, there was no such  limitation as claimed, in original w Article 239 on the powers of the  Parliament to amend the Constitution. I may not be understood as saying that  there are at all no limitation on the power to legislate under the written  Constitution. Undisputedly the superior Courts have powers to examine the vires  of an Act but their powers are limited to examine the legislative competence or  such other limitations as are contained in the Constitution. See State v.  Zia-ur. Rahman and Fauji Foundation v. Shamimur Rahman (supra).
        16. I may quote  below a paragraph from the judgment of Fauji Foundation which appears at page  546 of the report:-
        "Therefore,  when a Court which is a creature of the Constitution. itself, examines the  vires of an Act, its powers are limited to examining the legislative competence  or to such other limitations as are in the Constitution, and while declaring a  legislative instruments as void, 'it is not because the judicial power is  superior in degree or dignity to the legislative power' but because it enforces  the Constitution as a paramount law either where a legislative instrument is in  conflict with the Constitutional provision so as to give effect to it or where  - the Legislature fails to keep within its constitutional limits."
            17. Thirdly,  Article 2-A on the basis of which also validity of Article 270-A is sought to  be questioned was inserted by the President's Order No. 14 of 1985 promulgated  on 2-3-1985, by the President of x Pakistan. I do not find any valid reason nor  has any been advanced by any counsel to test the validity of an amendment made  in the Constitution by the Parliament by Constitution (Eight Amendment) Act,  1985.1 on the touchstone of a provision which was initially not an enforceable  part of the Constitution and which was made enforceable by the President's  Order No. 14 of 1985. In my opinion both the amendments have the same force and  the validity of one cannot be tested on the touchstone of the other.
        18. As regards the  question of testing the validity of Article 270-A of the Constitution on the  touchstone of Article 4 thereof, it may be stated that the question was  considered by the Supreme Court in Fauji Foundation's case and several other  cases in relation to Article 2 of the 1962 Constitution which was in similar  term as Article 4 of the present Constitution and it was dealt with by Muhammad  Haleem, C. J., in paragraphs 158 and 159 of the judgment and it may be useful  if, I may reproduce these paragraphs herein below as some of the arguments  noticed in paragraph 159 of the judgment were also advanced before us in  relation to Article 4 of the Constitution which continued to occupy the field  notwithstanding the suspension of fundamental rights under the Laws  (Continuance in Force) Order, 1977, as only those fundamental rights which were  continued in Part II of Chapter 1 of the Constitution were suspended or kept in  abeyance and the same was the position under the Provisional Constitution  Order, 1981;
        "158. Now  coming to the crucial observations of Hamood-ur Rahman, C. J., as reproduced  earlier, what he meant to emphasise was the scope of expression 'in accordance  with law' in Article 2 as to be comparable to the American 'due process'  clause, which embraced within its concept, like English common law, the  principles of natural justice and so also what S. A. Rahman, J., had em phatically  stated in Faridson' s case, namely, a duty to act judicially, which Hamoodur  Rahman, C J., put it in Begum Shorish Kashmiri's case, as according to the  accepted forms of legal process and a strict performance of all the functions  and duties laid down by law.' Hamoodur Rahman, C. J., did not affirmatively  hold by using the word 'comprehensive' to mean that the word 'Jaw'' in Article  2 has the same substantive connotation as the 'due process' clause in the  American Constitution, but he only meant to emphasise the principles of natural  justice as obtaining in the judicial procedure of the 'due process' clause for  judging actions taken against persons in regard to their life, liberty or  property. From a review of the judgments, this is the only conclusions, I can  draw and as the procedural aspect of 'due process' clause was to an extent  assimilable as an element of natural justice, in Article 2 of the Constitution,  it was, therefore, described as to have been enacted in a new garb, as no such  provision existed in any earlier Constitu tion. The word comprehensive, in my  view, could not have meant the natural law-,cum-due process clause limitation  on the legislative power as is contended for that concept is not obtainable  under our constitutional system. (See F. B. All's case). Concluding, there fore,  the word 'law' in Article 2 could not be regarded as the touchstone for testing  the normative contents of law, nor did it serve as an embargo against  legislation.
        159. Again it was  contended by the counsel for the respondent that the impugned legislative  instrument could be tested with reference to the provisions of the 1962  Constitution as Article 2 was preserved or for that matter by reference to  Article 20, 21 or 22 of the Legal Framework Order, 1970. This contention rests  on Article 3(1) of the Provisional Constitution Order, 1969, and the cases  reported as Province of East Pakistan v. Mehdi AU Khan P L D 1959 S C 387  Muhammad Afzal v. Commissioner Lahore Division P L D 1963 S C 401 Tanbir Ahmad  Siddiky v. Province of East Pakistan P L D 1968 S C 185 and Mir Hassan v. State  P L D 1969 Lah. 786. In the Legal Order as it existed, although 1962  Constitution was abrogated yet by Article 3(l) of the Provisional Constitution  Order, it was in terms made clear that  subject to any Regulation or Order  made, from time to time, by the Chief Martial Law Administrator, the State of  Pakistan shall, as otherwise provided in this Order, be governed as nearly as  may be in accordance with the said Constitu tion". A similar provision  existed earlier namely, the Laws (Continuance in Force) Order, 1958. Construing  the like provision of this order, Cornelius, J., in the case of State v. Dosso  P L D 1958 S C (Pak.) 535, held that it did not give any new life to the  Constitu tion nor that its provisions retained any validity of their own force  as the late Constitution ceased to be an organize law. In the case of Mehdi Ali  Khan, Cornelius, J., evaluated his earlier opinion in Dosso's case and held  that perhaps the words  shall be governed as nearly as may be in accordance  with late Constitution were undervalued, and now a fuller consideration led him  to think that this expression furnished a key to the understanding of the true  nature of the Martial Law imposed on the 7th of October, 1958, which though  having repudiated the Constitution as to its form yet retained these words as  an assurance that its provisions so far as applicable in the changed conditions  resulting from the dissolution of the Legislatures and the dismissal of the  elected Governments continued to be applied in practice though subject to the  Regulations or any orders made to amend or vary. His was a minority opinion,  which ran counter to the majority opinion according to which Article 2(1) of  the Provisional Constitution Order had reference to the structure and outline  of the Govern ment and not to the laws including the law of Constitution, which  was the subject-matter of Article 4(1) of the Order and that Article 2 of the  Order did not have the effect of preserving the fundamental rights. Cornelius,  J's minority opinion was later explained in Tanbir Ahmed Siddiky's case on the  hypothesis that what he meant was that a possibility was envisaged that the  funda mental rights in question had not become entirely devoid of validity, but  perhaps could' be placed on the footing of the directive principles of policy.  In Muhammad Afzal's case, Hamood-ur- Rahman J., as he then was, held that  Article 2(1) of the Laws (Continuance in Force) Order, 1958, gave validity to  the provisions of the Constitution subject to the expressed will of the  sovereign authority. In Mir Hassan's case Mushtaq Hussain, J., held that 'in  the matter of the governance of the country by the Constitution, Martial Law  Regulations or Orders made by the Chief Martial Law Administrator can make  provision to the said Constitution', but not against the specific provisions of  Provisional Constitution Order by reason of Article 3(1) of the said Order.  This conclusion was based on Muhammad Afzal's case although in the state of the  Legal Order, as it thou existed, the provisions of the Constitution were given  validity by the Laws (Continuance in Force) Order, 1958, yet it was the Order  which had the status of a supra-Constitution, and the Chief Martial Law  Administrator could make a Martial Law Regulation inconsistent with any  provision of the Constitu tion. Therefore, the Constitution could not be the  touchstone for testing the Martial Law Regulation, but some higher norm was  needed, which was not available. The same legal position existed under the  Provisional Constitution Order, 1969, as a like provision was incorporated in  it. Again in both the Orders a like provision existed, which preserved the  operation of a Martial Law Regulation and placed them on a higher status than  an Ordinance or any other law, which was repugnant to such Regulation. This too  gave an indication that the 1962 Constitution had no superior status than the  Martial Law Regulation itself, and hence it could not provide a norm for  testing its normative contents. Here also I may point out that the language of  the two supra-Constitutional Orders did not legally place any constraint on the  power of the Chief Martial Law Administrator to legislate against the  provisions of the late Constitution."
            19. Lastly,  there was no constrain on the Parliament to give validity to any legislative  instrument whatever may be the defects. While considering the validity of legal  measures and protection given to them under Article 181 (1) of the Interim  Constitution which as already stated, is similar as Article 270-A of the  Constitution, the Chief Justice in the case of Fauji Foundation clearly laid  down at page 584 that there was no y constrain on the constituent assembly to  give validity to any legislative instrument whatever might have been the  defect.
        20. I am, therefore, of the opinion that vires of Article  270-A of the Constitution cannot be questioned under Article 199 thereof on the  aforesaid ground.
        20-A. Mr. Raja  Qureshi in his petition (C. P. No. D-184 of 1986) has questioned the validity  of Martial Law Order No. 105 on the ground that it is violative and repugnant  to the Constitution particularly Article 4 thereof. In the petition he has also  questioned the inclusion of Martial Law Order No. 105 in the schedule to Martial  Law Order No. 107 on the ground that it is mala fide piece of legislation and  is a bad law, being beyond the scope of the proviso to clause 1 of Article  270-A which inter alia provides that a President's Orders Martial Law  Regulations or Martial Law Orders 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.
            20-B. Now, so  far as the question of validity of Martial Law Order No. 105 is concerned, it  may first be stated that this was promulgated on 21-3-1985, which is a date  between Fifth day of July, 1977, and 30^th December, 1985, provided  in clause 1 of Article 270-A. Thus, its validity cannot be called in question  on any ground as provided therein. This very Full Bench has already held so in  relation to M. L. R. 52 in Nazar Muhammad Khan's case (supra). As regard the  validity of the amendment in the Constitution by insertion of Article 270-A  (1). I have already dealt with this contention in great detail herein before.
            21. Now, as  regards the question that it is a mala fide piece of legislation, it may be  stated that a similar question was raised in relation to, Martial Law  Regulation No. 103 which was promulgated in 1972 and considered in the case of  Fauji Foundation v. Shamimur Rahmun (supra) first by the High Court and on  appeal by the Supreme Court and it was held by A the Supreme Court that no mala  fide could be pleaded against a statute and for that reason it could not be  regarded as being void. I may here quote a passage from the judgment which may  also be relevant in the context of past and closed transactions which appear at  pages 691 and 692 :-
        "The past  and closed transactions have a constitutional protection. Accordingly, it is  not open to the respondent to challenge the effect of the repeal. The High  Court seems to have got over the repeal of these legislative instruments by  holding that as they were enacted mala fide they were void and the first  appellant acquired no right in the Mill from its inception. This assumption is  wholly erroneous as no mala fides can be pleaded against a statute (under  lining is mine for emphasis) and for that reason it cannot be regarded as being  void. Lastly, in regard to the plea of past and closed transaction, it was held  that it was not sustainable on facts as action was being taken against the  respondent and his father on the strength of these legislative instruments, and  as they are void they amount to a continuing wrong which has given to them a  continuing cause of action. This conclusion is erroneous as upon repeal and  impugned legislative instruments could not be said to be in operation so as to  provide a ground for taking action against the respondent and his father. The  distinction here seems to be that this action was taken in pursuance to the  consequences which had taken effect as mentioned in the said clauses (b) and  (c). Accordingly, the effect of repeal cannot he whittled by a fanciful  conclusion on facts. It may also be stated here that there was no legal  proceedings pending, therefore, they were not saved by the repeal."
        22. Now, there  remains the contention that the inclusion of Martial Law Order No. 105 in the  schedule to Martial Law Order No. 107 is beyond the scope of the proviso to  clause (1) of Article 270-A. Now, before I consider this contention I may state  that paragraph 3 (1) of Martial Law Order No. 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 M. L. O. 3 notwithstanding its cancellation on or after the said  day, other than those specified in the schedule to order, shall stand cancelled  on the appointed day.
            23. Now,  considering the contention I may first state that Martial Law Order No. 107 was  promulgated within the dates mentioned in clause (1) of Article 270-A and  therefore, it could not be called in question s by virtue of Clause (1) (ibid)  and Nazar Muhammad Khan's case decided by B this very Full Bench. Consequently,  Martial Law Order No. 107 or inclusion of Martial Law Order No. 105 in the  schedule to Martial Law Order No. 107 could not also be called in question.  Assuming for the sake of argument that I am not correct in my view, with regard  to the inclusion of Martial Law Order No. 105 in the schedule to Martial Law  Order No. 107 the further question is whether the saving of Martial Law Order  No. 105 by Martial Law Order No. 107 is not in accord with the proviso to  Clause (1) of Article 270-A. Martial Law Order No. 107 is similar in its application  and scope to a great extent to Martial Law (Pending Proceedings and Protection)  Order, 1962, (President's Order No. 26 of 1962) which was promulgated on 6th  June, 1962 after the enforcement of the 1962 Constitution on 1st March, 1962,  which provided for transfer of pending cases in Summary Military Courts and  made provision for re-disposal of cases, annulment and commutation, execution  and continuance of Martial Law sentence, protection, immunity etc. It however,  made no provision with regard to saving from repeal of any Martial Law  Regulation but the same was provided in Article 225 of 1962 Constitution  itself. Clause (3) of Article 225 provided as follows :-
        "(3) All  Martial Law Regulations, except those specified in the Table to this clause,  are repealed with effect as from the commencing day, and on that day each  Martial Law Regulation so specified shall be deemed to have become an Act of  the (competent legislature) and shall, with the necessary adaptations, have  effect as such.
        Date                                                                          Title
        7th February,  1959.                                     West  Pakistan Land
                                                                       Reforms  Regulation.
    23rd July, 1959.                                          Rawalpindi  (Requisition
                                                                       of  Property) Regulation,
                                                                       1959.
    16th June, 1960.                                          Pakistan  Capital Regulation.
    23rd August,  1961.                                     Scrutiny  of Claims (Evacuee
                                                                       Property)  Regulation.
    17th March, 1959.                                      West  Pakistan Border Area
                                                                       Regulation,  1959."
        24. Similar  Provisions were made by the Martial Law (Pending Proceedings) Order, 1972,  (President's Order 14 of 1972), promulgated on 18th April, 1972, effective 21st  April, 1972, when Martial Law was withdrawn in 1972, and Interim Constitution  was promulgated in 1972, and wherein Article 280(3) made similar provision. I  may quote clause (3) hereinbelow :----
        "(3) All  Martial Law Regulations and Martial Law Orders, except the Martial Law  Regulations and the Martial Law Orders specified to the Seventh Schedule, are  repealed with effect as from the commencing day, and on that day each Martial  Law Regulation and the Martial Law Orders so specified shall be deemed to have  become an Act of the appropriate Legislature and shall, with the necessary  adaptations, have effect as such;
        Provided that no  Bill to amend or to repeal any of the Martial Law Regulations or the Martial  Law Orders specified as aforesaid shall be introduced or moved without the  previous sanction of the President."
        25. It will,  therefore, be seen what is provided in Paragraph (1) of the Martial Law Order  No. 107, is not some thing new. The necessity of providing so by the Martial  Law Order No. 107, arose because the Constitution of 1973, which was being kept  in abeyance was being restored and no new Constitution was being given or made  as was, done in 1962, or in 1972.
        26. On lifting of  Martial Law and consequent repeal of Martial Law Regulations and Martial Law  Orders provision had to be made of necessity, for saving the effect of 'repeal'  as is provided in the case of repeal of a Federal Statute under section 6 of  the General Clauses Act, 1897, and for continuing certain Martial Law Orders  for various reasons one of which could be that though actions taken were  complete but some incidental or consequential matters were required to be dealt  with or completed. In Constitution Petition No. 184 of 1986, the Project was  taken over and vested in the Custodian under the Martial Law Order No. 105, who  had to pay compensation and or to sell mortgaged or transfer the Project or any  part thereof as provided in paragraph (3) (ibid).  Therefore, a provision for saving this Martial Law Order had to be made of  necessity otherwise the project would have remained incomplete. Therefore, the  inclusion of the Martial Law Order No. 105 in the schedule to the Martial Law  Order C No. 107, was 'incidental', which means something that is only an  adjunct C to something else. See: Carstens Packing Co. v. Unemployment  Compensation Division of Industrial Accident Board, 144 p. 2d 203, 208, 65  Idaho 370. D A thing is 'incident' to another when it appertains to, or follows  on, that D other which is more worthy, or principal. (See: Stroud's Judicial  Dictionary, Volume. 2, page 1412, (3rd Ed.).
            27. Further,  in my opinion the provisions of the Martial Law Order No. 107 also facilitated  the revocation of proclamation of 5th day of July, 1977. The word 'facilitate'  according to The Oxford English Diction ary, Volume IV, page 10, means (1) to  render easier the performance of (an action), the attainment of (a result), to  afford facilities for, promote,  help  forward (an action of process). 
        This word also came up for consideration in a number of  American cases and its meanings with reference to ' Webster' were defined as  'to make easy or less difficult: to free from difficulty or impediment'. (See :  Radio Station Wmfr v. Eitel-McCullough, Inc., 59 S. E. 2d 779, 782, 232, N.C  287, 2) (See also Panzer v. Horn 83 N. Y. 2d  887, 893, and 3) U. S. v. One 1949 Ford Sedan D. C. N. C. 96 F. Supp. 341, 343.
        Yet in another  case it was defined as follows;
        "Facilitate  means to make easy or less difficulty; to free from difficulty or impediment ;  as, to facilitate the execution of a task ; to free more or less completely  from obstruction or hindrance ; lessen the labour of. U. S. v. One 1950 Buick  Sedan, C. A. Pa., 231 F. 2d 219, 222."
            28.  Accordingly the inclusion of Martial Law Order Nor 105, in the F schedule to  Martial Law Order No. 107, facilitated the revocation of the Proclamation of  Fifth July, 1977.
            29. Moreover,  the cancellation of Martial Law Regulations and Martial Law Orders referred to  in clause (1) of paragraph (3) of Martial Law Order No. 107 does not affect the  previous operation of Martial Law Order No. 105, whereunder the project of the  petitioner was taken over by the Custodian appointed by the Federal Government  under Clause (3) of the Rehabilitation of Karachi Hotel Project Order, 1985.  (Martial La Order No. 105), promulgated on 21-3-1985, and from the appointed  date the ownership and administration of the affairs of the project vested in  him and thus it become a past and closed transaction which could not be called  in question by virtue of Article 270-A clause (2) and paragraph (3) of Martial  Law Order No. 107. Under that Martial Law Order the petitioner was, or  may still be, entitled to compensation. I have already referred to the  observations of Muhammad Haleem, C. J., in Fauji Foundation's case which appear  at page 24 of this opinion.
            30. I agree  with my learned brother Muhammad Zahoorul Haq, J. that the validity of the  proceedings that are coram non judice or orders and acts that are without  jurisdiction can be examined by the High Court on a petition under Article 199  of the Constitution in the exercise of judicial powers notwithstanding the bar  contained in clause (2) read with clause (5)R of Article 270-A of the  Constitution on the authority of the Supreme Court decisions in State v.  Zia-ur-Rahman (supra); Federation of Pakistan v. Saeed Ahmad Khan (supra) ; F.  B. Ali and another v. The State (P L D 1975 S C 506) and Fauji Foundation and  another v. Shamimur Rahman (supra).
        31. However, it  may be pertinent if, I quote a paragraph from Saeed Ahmad Khan's case which  appear at page 169 of the report;
        "The result,  therefore, to which we have arrived as a result of the interpretation of the  provisions of Article 281 of the Interim Con stitution 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 acts, 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,  Regulation, Enactments, Rules, Orders, Bye-laws, etc. and to nothing  else."
            32. Now,  under clause 5 of Article 270-A, orders, acts, and proceed ings cannot be  called in question on the ground of mala fide. If the intention was to validate  even orders, acts and proceedings that were with out jurisdiction or coram non  judice proper words would have been added 4 in clause (5) but it has not been  done so.
            33. I am  however, state here that there is a clear distinction between an act wholly  without jurisdiction and an act done in the improper exercise of that  jurisdiction. Where there is jurisdiction to decide, then there is juris diction  to decide either rightly or wrongly and merely a wrong decision does not render  the decision without jurisdiction. See Nawab Syed Raunaq Ali etc. v. Chief  Settlement Commissioner and others (P L D 1973 S C 236) and also Muhammad  Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139). In the  last named case it was observed at page 142 of the report by Muhammad Gul, J.  as follows :----
        "It is  well-settled that where a Court or a tribunal has jurisdiction and it  determines that question, it cannot be said that it acted illegally or with  material irregularity merely because it came to an erroneous decision on a  question of fact or even of law."
        Reliance was  placed on a Privy Council's decision in Amir Hussain Khan v. Shew Bakhsh Singh  (11 I A 237). Reliance was also placed on the opinion of Kaikaus, J., in Badrul  Haque Khan v. Election Tribunal, Dacca and others (P L D 1963 S C 704), that  "The proposition is indisputable that when there is jurisdiction to decide  a particular matter than there is jurisdiction to decide it rightly or wrongly  and the fact that the decision is incorrect does not render the decision  without jurisdiction." Reference may be made to the observation of S. K.  Das, J, in Sint. Ujjma Bai v. State of Uttar Pradesh (A I R1962 S C 1621),  wherein he said, "where a quasi-judicial authority has jurisdiction to  decided a matter, it does not lose its jurisdiction by coming to a wrong  conclusion, whether it is wrong in law or in fact". "The question  whether a tribunal has jurisdiction depends not on the truth or falsehood of  the facts into which it has to enquire or upon the correctness of its finding  on these facts, but upon their nature, and it is determinable at the  commencement, not at the conclusion of the inquiry."
            34. The word   properly' used in paragraph 4 of the Martial Law Order No. 107, according to  the Oxford English Dictionary, page 1470, means, I, in the proper or strict  sense ; strictly speaking ; literally, not figuratively (obs.) ; in accordance  with fact ; strictly, accurately, correctly, exactly'. Accordingly, the use of  this word therein, in my opinion, also does not save the effect of orders,  acts, or proceedings that were passed or done, without jurisdiction or were coram  non judice. ' Indeed, such orders, acts, and proceedings could not have been  called in question under Article 15 of the Provisional Constitution Order,  1981, but now as Provisional Constitution Order has been repealed the said  Martial Law Order has become an ordinary piece of legislation like any other  Act or Ordinance. In support I may quote herein below paragraph 164 of the  judgment of Fauji Foundation (supra) :-
        "164.-Finally,  the Martial Law Regulations were recognized as law and given constitutional  status by Article 281 (1) of the Interim Constitution and Article 269 (1) of  the 1973 Constitution. The laws not repealed but saved were treated as existing  laws under Article 280 (8) of the Interim Constitution. Mian Iftikharuddin v.  Muhammad Sarfraz P L D 1961 S C 585, Muhammad Khan v. Border Allotment  Committee P L D 1965 S C 623, Azizur Rahman Chowdhury v. M. Nasiruddin P L D  1965 S C 236 and Begum Nusrut Bhutto v. Chief of Army Staff etc. P L D 1977 S C  657. Provide instances where Martial Law Regulations were treated as laws by  Courts."
            SYED ALLY MADAD SHAH,  J.-The question of change is basic structure, of the Constitution agitated  during the course of hearing of the petitions has been extensively dealt with  by the learned Chief Justice and I agree L that under Articles 238 and 239 of  the Constitution, as substituted under L President's Order No. 14 of 1983, the  Majlis-e-Shoora (Parliament) has unlimited power to make any amendment in the  Constitution in accordance therewith.
            2. I also  agree with my learned brother Muhammad Zahoorul Hag, J., that protection under  clause 2 of Article 270-A of the Constitution, read with clause 5 thereof, to  the orders, proceedings and acts envisaged M thereunder is not absolute and  .they can be called in question before the High Court on the grounds of want of  jurisdiction and/or corum non judic in the light of authoritative decisions of  the Supreme Court in the case The State v. Zia-ur-Rahman (supra) and The  Federation of Pakistan v. Saeed Ahmad Khan (supra). 
        The State v.  Zia-ur-Rahman (supra) and The Federation of Pakistai v. Saeed Ahmad Khan  (supra).
            3. As  regards Martial Law Order No. 107, I am of the opinion that it having been made  on 29th day of December, 1985, i.e. before the day on which Article 270-A came  into force, stands affirmed, adopted and declared to have been validly made and  is not liable to be called in question on any ground whatsoever notwithstanding  anything contained in the Constitution, as laid down under clause (1) of  Article 270-A of the Constitution and the decision of the Full Bench of this  Court in Nazar Muhammad's case (supra), extends to it with all force. It is NN  essentially an order to provide for incidences arising from revocation of the  proclamation of Martial Law of the Fifth day of July, 1977 According to me, it  is a sub-constitutional law given cover of immunity from challenge in any Court  on any ground whatsoever. However, applicability of its provisions will be a  matter for consideration of High Court in each individual case.
            HAIDER ALI PIRZADA, J.--I have had  the advantage of reading the opinions proposed to be delivered by the learned  Chief Justice and my learned brother Muhammad Zahoorul Haq, J. I fully agree  with the reasons and conclusions and have nothing to add.
        UNANIMOUS CONCLUSIONS OF THE COURT        We have reached  the following unanimous conclusions:
            (1)        That Martial Law Order No.107 or  inclusion of Martial Law Order No.105 in the schedule to Martial Law Order  No.107 cannot be OQ called in question and is protected under Article 270-A of  the Constitution which is valid.
        (2) The petitions  under Article 199 of the Constitution are not under the present dispensation  completely barred in respect of convictions by Military Courts or actions by  Military authorities. However, the scope of challenge is now restricted to Acts  or Orders which are without jurisdiction or to proceedings which are coram no  judice.
        ORDER OF THE  COURT
        The petitions  would now be placed individually before the Division Bench for Katcha Peshi.
        M.B.A./M-41/K                                                                           Order  accordingly.

                        

  Find a Lawyer Near You
  Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
  🔍 Find a Lawyer
  
    Popular cities:
    Lahore·
    Karachi·
    Islamabad·
    Rawalpindi·
    Multan·
    Faisalabad
  










patent advocate from Gojra lawyer 











  

    
      SJP Lawyers Directory
      Pakistan's leading legal-technology platform and verified lawyer directory — connecting clients, lawyers, law firms and Bar Associations across the country.
      
      
        
        
        
      
    

    
      Explore
      
        Find a Lawyer
        About SJP
        Pricing
        Solved Cases
        Legal News
        FAQ's
      
    

    
      Platform
      
        Legal-Tech Platform
        Bar Association System
        Corporate Legal Portal
        Case Management
      
    

    
      Get in Touch
      
        SJP Legnocrats
(SMC-Private) Limited
        📞 +92 348 668 6631
        ✉️ Contact Us
        Downloads
      
    

  

  
    
      © 2018–2027 SJP Legnocrats (SMC-Private) Limited. All rights reserved.
      
        Terms
        Privacy Policy
        Refund Policy
        Delivery Policy
        Made in Pakistan 🇵🇰

Lawyers Directory Listing

Find a Lawyer

Every Lawyer listed in this directory is verified by SJP verification Team

MUHAMMAD BACHAL MEMON versus GOVT. OF SIND

Find a Lawyer Near You