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Civil Miscellaneous Case No. 1152 of 1961, decided on 31st May 1961.
"mala fide"‑Means "in bad faith"
Plea of "Mala fide"‑Worthy of consideration only if it sets out acts from which plea could be inferred‑Civil Procedure Code (V of 1908), O. VI, r. 4.
Deponent believes that statements, of facts (in certain document) are correct"‑Affidavit, held, vague and indefinite."
Questions of fact‑High Court (as a matter of practice) will not hold inquiry into questions of fact‑Constitution of Pakistan (1956), Art. 170.
fide‑Invalidity of law, no proof of bad faith unless person implementing law knows that it is invalid.
Art. 4 read with Art. S‑President not debarred from making "new" laws or making "amendments" in laws by means of Ordinance‑President's powers to make laws‑---Security of Pakistan (Amendment) Ordinance (XIV of 1961)‑Validly promulgated.
Held, that the President of Pakistan is not debarred from making new laws and making amendments in laws by means of Ordinances promulgated by him.
Article 4, Laws (Continuance in Force) Order (I of 1958), makes mention of an Order of the President, but that, mention does not mean that it was only by means of an Order that the President of Pakistan could amend any law which had been kept alive by means of Article 4. The last eight words of paragraph (1) of Article 4 made it clear that the laws continued in force thereby were subject to alteration, repeal or amendment by competent authority. The Laws (Continuance in Force) Order, 958, did not say that the President of Pakistan was competent to make laws on any subject. However, it cannot be denied that powers to make all kinds of laws vested in the President and indeed if, in the face of the language used in the Order and of the decisions of their Lordships of the Supreme Court in The State v. Dosso P L D 1958 S C (Pak.) 533, a contention to the contrary had een raised, it would have been repelled at once. It. follows, there. fore, that if under the present Constitutional provisions, the Presi dent passed a law on any subject, that law cannot be declared to be void by Courts on the ground that he had purported to exercise a power which did not vest in him. If the President of Pakistan can bring on the statute book any law that he considers necessary, one fails to see how Ordinance XIV of 1961 could be declared to be invalid.
Apart from this, the name given to the law made by the President could not in the least affect its validity.
If the President could make a law which was to be the interim Constitution of Pakistan he would be competent to make any other law as well, and the fact that he called that law by a name that should not have been used for it will not deprive the law of its validity.
The contention, based on analogy from Article 5, Laws (Continuance in Force) Order (I of 1958), that if the intention had been that the President of Pakistan could issue an Ordinance distinguished from an Order, the power would have found mention in the Laws (Continuance in Force) Order, 1958, was untenable.
The State v. Dosso P L D 1958 S C (Pak.) 533 ref.
Muhammad Ayub Khuhro v. Pakistan P L D 1960 S C (Pak.) 237 considered.
Allegation of, against Legislature in enacting statute‑Whether can be examined by Courts‑(Quaere)‑[Security of Pakistan (Amendment) Ordinance (XIV of 1951)]‑Chaudhri Qaseem‑ud‑Din v. The Province of West Pakistan P L D 1959 Lah. 76 considered.
Views of Judges which "could not be con sidered to be final"‑Whether should be reported.
Not invalid even if it affected a completed transaction interpretation of Statutes‑Retrospective operation.
Held, that the Security of Pakistan (Amendment) Ordinance (XIV of 1961) would not be invalid by reason of the fact that it could be employed to set at naught transactions which had been completed before its promulgation. When a law can be used to upset completed transactions, it may in some cases appear unjust And in some others eminently just ; in either c4ses it would retain its legality provided it was not invalid for some other reason. The Ordinance, therefore, cannot be held to be invalid for the reason that it could be used to set at naught a transaction which is claimed to have been completed and the finding would not have been different even if the powers of the President of Pakistan to make laws were not as untramelled as they had been since the imposition of Martial Law.
It is a fundamental principle of law that the authority which can make laws on a subject can make such laws retrospective in operation in spite of the consideration whether or not any trans actions which had been completed earlier would be affected. The general rule about laws is that those, which deal with substantive rights, as distinguished‑from those dealing with procedure, are to be presumed to be prospective but this is subject ‑to the condition that the law under consideration does not make it clear that it is intended to be retrospective in operation.
S. 11‑A (7) Explanation (ii) as inserted by Security of Pakistan (Amendment) Ordinance (XIV of 1961)‑Not invalid for not providing person likely to be affected by cancellation of sale, opportunity to be heard before cancellation‑Natural justice, principle of‑Not evocable in face of specific provision against such opportunity.
Subsection (7) of section 11‑A as inserted by Security of Pakistan (Amendment) Ordinance, 1961 is to the effect that none of the parties likely to be affected by an order of cancellation of sale had a right to be heard before the order was passed, and as specific provision exists in the relevant law which provides for administration of mundane justice it is not permissible to invoke principles of natural justice with a view to having it declared that the Ordinance was not good law. In cases where a party has not been given by a man‑made law a right of being heard before an order adverse to that party is passed that law can under no binding provision of any law that can be enforced by Courts be declared to be invalid on the ground that the party had been deprived of a right of audience which according to some is granted to every being great or small under the principles of natural justice. In cases where a right of being heard has not been specifically denied by a valid law it may perhaps be open to Courts to hold that principles of natural justice require that a right of audience should be presumed not to have been taken away, but the same cannot be said of a law which is not invalid under a inding law on account of the fact that no opportunity is afforded to a party to show cause against a decision which may be adverse to that party.
(Martial Law Regulations and Martial Law Orders)‑How to be interpreted‑Martial Law Regulation: (C. M. L. A's) No. 72, para. 1‑"For time being"‑Meaning. When interpreting Martial Law Regulations and Martial Law Orders, Courts should attach those meanings to them which flow from the words used and if the words used are not quite precise or clear, the Courts should interpret the words keeping in view all the circumstances prevalent at the time when the Regulation or Order was issued and thereby finding out the intention of the person ho issued the Regulation or Order. This is the only possible rule of interpretation of Martial Law Regulations and Martial Law Orders unless the Regulation or Order or some other relevant law lays down a rule of interpretation.
The words "for the time being" in paragraph 1 of Martial Law Regulation No. 72 could not only mean "up to the date on which the Martial Law Regulation was issued".
Ghulam Mustafa v. The State P L D 1960 Lah. 364 ref.
(C. M. L. A's) No. 72 read with Security of Pakistan Act (XXXV of 1952) (as amended)‑Orders passed under Act since 10‑10‑1958 up till date Regulation remains in force deemed to be passed under Regulation.
Held, that all orders passed under the Security of Pakistan Act, 1952, at any time between the 10th of October 1958 and the date till which the Martial Law Regulation No. 72 remains in force shall be deemed to have been passed under that Regulation.
The contention that only the acts done under the Security of Pakistan Act, 1952, as it stood between the 10th of October 1958 and the 29th of July 1959 (the date the Regulation was promulgated) were to be deemed to have been done under the Martial Law Regulation No. 72 and not so the acts done under the Security of Pakistan Act, 1952, as amended, after the 29th of July 1951, could not be accepted on any reasonable ground.
Art. 2 (3) [Constitution of Pakistan (1956), Art. 163] Law declared by Supreme Court‑Three Judges giving expression to views "not precisely the same"‑No view can be deemed to be "law declared" (Shabir Ahmad, J. Ortcheson, J. Contra)‑Laws (Continuance in Force) Order (I of 1958), Art. 2 (1)"Governed"‑Meaning‑[State v. Dosso P L D 1958 S C (Pak.) 533 and Ibrahim v. The State P L D 1961 S C (Pak.) 200 ref.
Art. 2 (1) "Governed"‑Includes "governed" by promulgation of laws includ ing Ordinances.
When the President of Pakistan makes a law he takes a step in the "government" of Pakistan, and paragraph 1 of Article 2 of the Laws (Continuance in Force) Order, 1958, could be deemed to apply. When the President of Pakistan, or the Governor of one of the two Provinces of Pakistan, promulgates an Ordinance he is performing what is generally termed a legislative function, but that does not mean that the enforcement of the Ordinance is not governance of Pakistan under those Ordinances.
as amended by Security of Pakistan (Amendment) Ordinance (XIV of 1961) read with Martial Law Regulation (C. M. L. A's) No. 72, paras. 1, 3 Orders passed under Act deemed to have effect under Regulation-Immune to interference by Courts‑Laws (Continuance in Force) Order (1 of 1958), Art. 3.
Held that, by virtue of para. 1, Martial Law Regulation (C. M. L. A's.) No. 72, orders passed under Security of Pakistan Act, 1952 as amended by Security of Pakistan (Amendment) Ordinance, 1961] were to be deemed to be orders passed under the Regulation, and so were immune to interference by Courts by virtue of Article 3, Laws (Continuance in Force) Order (I of 1958) as well as para. 3 of the Regulation.
That being so, staying of the operation of an order passed under the Security of Pakistan Act 1952, was not permissible.
If, however, Ordinance XIV of 1961 had been held to be invalid, Orders passed thereunder could not have been treated as orders passed under Martial Law Regulation No. 72, because it is hardly open to question that only valid amendments in the Security of Pakistan Act, 1952 were contemplated by the Regulation and not those amendments which may offend against law.
Order"‑ Distinction ‑ Constitution of Pakistan (1956), Art. 69.
The word "Ordinance" has a recognised meaning in legal terminology, namely, the expression of the legislative will of the Executive Head of the Government when the National Assembly is not in session. The word "Order", however, does not. necessarily refer to the expression of the legislative will of the Executive Head. Besides, Orders can be made by the competent authority irrespective of the fact that the National Assembly is in session or not. In this view of the matter, the distinction is indeed fundamental and cannot be ignored.
Mahmud All for Petitioner No. 1.
K. E. Chohan for Petitioner No. 2.
Ismail Bhatti for Respondent No. 1.
Nazir Ahmad Khan, Attorney‑General for Government of Pakistan Respondent No. 2.
Dates of hearing: 22nd, 23rd and 24th May 1961.
This application under section 151 and Order XXXIX, rules 1 and 2‑of the Code of Civil Procedure was presented in this Court on the 9th of May 1961, and purported to be in continuation of Writ Petition No. 742 of 1960. The applicants in this application are Mian Iftikhar‑ud‑Din and his son Arif Iftikhar who are the petitioners in Writ Petition No. 742 of 1960. The application has prayed for a direction staying the implementation of the order of the Pakistan Central Government whereby the sale of the shares of Mian Iftikhar‑ud‑Din and his son Arif Iftikhar, which had been held by means of an‑ auction in August 1959, had been set aside. The further prayers in this application are that Habib Bank Ltd., Lahore, as well as its Branches, the bankers of the Progressive Paper Limited, should be directed not to make any payment on the direction of either of the two respondents or the Progressive Papers Ltd. to Mr. Ahmad Dawood either by cheque or by transfer or by any other method until the disposal of Writ Petition No. 742 of 1960 and that the respondents as well as the Bankers of the Progressive Papers Ltd. should be restrained from making any pay ment to Mr. Ahmad Dawood on account of refund of the part of the price of the shares already paid by him. The application was placed, on the 9th of May 1961, before his Lordship the Chief Justice of this Court who issued an interim stayed and directed that the matter be considered by a Full Bench. It is in these circumstances that this Bench of the three Judges has been constituted to consider the question whether or not the orders prayed for in the application should issue.
It would help in understanding the matter if a brief reference is made to Writ Petition No. 742 of 1960 in continuation of which this application has been put in. The Writ Petition was presented to this Court by Mian Iftikhar‑ud‑Din and his son Arif Iftikhar for issue of a Writ directing the two respondents to the petition, namely, Mr. Muhammad Sarfraz, Administrator, Pro gressive Papers Ltd Lahore, and the Government of Pakistan, through the Secretary, Ministry of Interior, Rawalpindi, to per form their legal and statutory duty to pay the money realised by the sale of shares previously held by the petitioners in the Pro gressive Papers Ltd. The sale of shares had been effected by means of an auction at which Mr. Ahmad Dawood had given a bid of Rs. 64,40,000 out of which he had paid a sum of about Rs. 30,00,000 as part payment. It was to get this amount of about Rs. 30,00,000 that the writ petition had been put in. The issue of writ had been resisted by the two respondents on the ground that the Court had no jurisdiction to go into the question that arose or to issue a writ. A Division Bench of this Court consisting of Muhammad Yaqub Ali and S. A. Haq, JJ., was entrust ed with the disposal of that writ petition. On the 7th of February 1961, this Division Bench passed an order that as the preliminary objection raised on behalf of the respondents to the effect that the Court had no jurisdiction in the matter was unsustainable, the respondents should file their written statements on merits within two weeks of the date of the order. Against this order, a petition for special leave to appeal was presented in the‑ Supreme Court and pending the disposal of that petition an order was passed by that Court directing that the order of the High Court dated the 7th of February 1961 was not to be implemented till the disposal of the petition for leave to appeal.
3. For the first time the matter came up before this Bench on the of 15th May 1961 and though notice had not yet issued to either of the two respondents, both of them were represented at the hearing, the Central Government; which was respondent No. 2, by Chaudhri Nazir Ahmad Khan, Attorney General of Pakistan, and Mr. Muhammad Sarfraz, who had been shown as respondent No.1, by Mr. M. Ismail Bhatti, Advocate. It was brought to the notice of this Bench that the question of the grant of special leave to appeal against the order passed on the 7th of February 1961 by Muhammad Yaqub Ali and S. A. Haq, JJ. was to be taken up by the Supreme Court on the next day, and as it appeared proper to await the orders of their Lordships of the Supreme Court with regard to the petition for special leave to appeal, because if the Supreme Court sustained the preliminary objection raised on behalf of the respondents to the effect that this Court was incompetent to deal with the matter agitated in the writ petition, the present application would become in fructuous, the hearing of the case was adjourned to the 22nd of May 1961. The petition for special leave to appeal was taken up by the Supreme Court on the 16th of May 1961. A copy of the order passed by the Supreme Court on the 16th of May 1961 has not been received yet in this Court, but learned counsel for the parties, though they are not agreed with regard to some of the remarks made by the learned Judges of the Supreme Court at the hearing of the petition for special leave to appeal on the 16th of May 1961, are agreed that their Lordships had adjourned the hearing of the petition for an indefinite period. On the 16th of May 1961, an application, which was registered in this Court as Civil Miscellaneous No. 1236 of 1961, was presented before me by the learned Attorney‑General. In this application it was prayed that as the Central Government had set aside the sale in favour of Mr. Ahmad Dawood under a recently promulgated Ordinance namely Ordinance XLV of 1961 and Writ petition No. /4G of 17uV had become infructuous, that petition along with the present application and another application presented by Mian Iftikhar -ud‑Din and his son Arif Iftikhar should be dismissed. A notice of this application which was signed not only by the Attorney‑General but also by Mr: Muhammad Ismail Bhatti, was served on Mr. Mahmud Ali, Advocate, who was the counsel for Mian Iftikhar- ud‑Din and his son Arif Iftikhar, both in the writ petition and in the present application, and on the 22nd of May 1961, Mr. Mahmud Ali put in what purported to be a reply to Civil Miscel laneous No. 1236 of 1961 presented by the learned Attorney- General. The main points raised in this reply were that Ordinance XIV of 1961, under the provisions of which the sale of the shares of Mian Iftikhar‑ud‑Din and his son Arif Iftikhar effected by auction in August 1959 had been set aside by the Central Government was bad law and that the order directing the setting aside of the sale was mala fide and, therefore, liable to be set aside. On the averments of the parties, the questions for determination by this Full Bench are :‑
(i) Is Ordinance XIV of 1961, under which the Pakistan Central Government had been given the power to cancel the sale effected under the relevant provisions of the Security of ‑Pakistan Act (XXXV of 1952) valid law; and
(ii) In case the law is valid, was the order which purported to have been passed under that law, mala fide
4. Before taking up the other question, I would dispose of the plea of mala fide raised on behalf of the applicants. The expression "mala fide" means in bad faith. It is obvious that before a party can ask a Court to give a finding that an act was done in bad faith, it must specifically mention the acts from which badness of faith, which ‑is alleged, could be inferred. Assuming that a wrong order has been passed, it does not follow that it was actuated by bad faith because it may be due to a variety of reasons; for example the person who passed it may be incompetent to understand the correct meaning of the provision of law under which he purported to act or he had not cared to look into the relevant provision of law. The document presented by Mr. Mahmud Ali on the 22nd of May 1961, though it bears the date 20th May 1961 when it was evidently prepared, in which it was said that the action of‑the Central Government in passing the order setting aside the sale of shares of the Progressive Papers Ltd. in favour of Mr. Ahmed Dawood was mala fide ran into no less than five typed pages, and the affidavit in support of it had been sworn by Begum Ismat Iftikhar‑ud‑Din, wife of Mian Iftikhar‑ud‑Din and the mother of Mr. Arif Iftikhar, on the 22nd of May 1961. This affidavit, which covers only half a page, reads as follows
"(1) That the deponent is the wife of Mian Iftikhar‑ud‑Din and mother of Mr. Arif Iftikhar, the two petitioners.
(2) That the deponent has carefully read the. reply to the petition under section 151, C. P. C., filed by the respondents on 17‑5‑1961.
(3) That on the basis of information in her possession the deponent believes that the statements of facts made in paragraphs 1‑5 of the reply as well as the facts mentioned in paragraphs 1‑6 dealing with additional facts are correct."
It will be noticed that in her affidavit the deponent is not, stating that she knows that the contents of the document, to which her affidavit is attached, were correct. The affidavit, which purports to be in support of the assertions in the reply put in by Mr. Mahmud Ali one of which was that the action of the Central Government was mala fide, is so vague and indefinite that I am not c prepared to accept it even as the weakest prima facie proof of an assertion of bad faith. I am not unaware that it is not unusual to mention in documents presented to Courts that certain acts are mala fide, without specifying the facts from which that inference is sought to be drawn, but so far as I am concerned, an assertion that an act was actuated by bad faith does not receive any serious consideration unless the facts from which the inference of bad faith is sought to be drawn are specified. I am clear in my mind that the higher the authority whose acts are attacked on the round that they were done in bad faith the heavier the burden; proof on the person making the attack. In the present case the order purports to have been passed by the Pakistan Central Government and yet there is not an iota of proof to support it. In these circumstances, I am not prepared to entertain the assertion that the impugned action of the Central Government was done in bad faith and for this reason lacked validity.
5. Whether or not the impugned order was passed in bad faith is a question of fact and even if I had been prepared to depart from any usual practice in writ petitions and similar matters of not launching on an inquiry regarding questions a fact, I am not prepared to hold any inquiry because the assertion regarding bad faith has no material at all to support it. Learned counsel for the applicants, urged that if the documents about summoning which he had pt in an application under Order XI, rules 12 and 14 and section 151 of the Code of Civil Procedure on the 22nd of May 1961, were in Court he would probably succeed in substantiating the assertion that the order was passed in bad faith. This amounts to no more than this, that if the Court were to accompany the learned counsel for the applicants on a roving inquiry he would probably show the Court something which might support the assertion that the impugned order was passed in bad faith, but I am not prepared to launch on an inquiry for which no ground has been prepared by the applicants. Mr. Mahmud Ali urged that the impugned order was of an unusual character because it set at naught a completed transaction, and, consequently, it should be presumed to have been actuated by bad faith. For the purposes of the contentions of Mr. Mahmud Ali, I would assume, that his premises that the transaction which was sought to be set at naught by the impugned order had become complete before the impugned order was passed and also that the order was unusual were correct, but these circumstances are not proof of bad faith. If the law under which the impugned order purports to have been passed allows the setting at naught of completed transactions the person who passed the order cannot be held to have been actuated by bad faith when passing the order because a person who follows the law cannot be reasonably accused of having acted in bad faith unless it can be definitely established that the law which was invoked for passing the order was invalid and that the person passing the order knew that the law suffered from that defect. But if a party were able to prove that the law which was invoked for passing an order was riot binding but not that the. person who purported to act under that law knew of the invalidity of the law, no basis for getting a finding of bad faith would exist though the order will, no doubt, be set aside on the ground that it was not allowed by law. In cases of the type envisaged by me it would not be necessary to prove bad faith of the person who passed the order but the question whether the act was done in good faith or not could arise for various other reasons and if the question did arise the proof of the invalidity of the law under which the action was taken will not prove that the person who purported to act under that law had acted in bad faith because in order to establish bad faith it will be necessary to establish that the person who supported to act under the law knew that it was invalid. In view of what I have said, I would reject the plea that the impugned order of the Central Government was invalid as the plea has no material to support it.
6. Before taking up the other contentions raised by Mr. Mahmud Ali, I would mention the provisions of the relevant law at the relevant time. The Security of Pakistan Act (XXXV of 1952) became law on the 5th of May 1952 but underwent some changes after its being brought on the statute‑book. For the purposes of this application, however, mention need be made only of two Ordinances which amended the Act. The first of these Ordinances was the Security of Pakistan (Amendment) Ordinance, 1959 (XXIII of 1959). This Ordinance was promulgated by the President of Pakistan on the 16th of April 1959 and was published in the Gazette of Pakistan Extraordinary of that date. The only amendment effected in the Act by Ordinance XXIII of 1959 was that subsections (4) to (9) were inserted after the third subsection of section 11 of the Act, which section at the time of the promul gation of the Ordinance consisted of three subsections. The six subsections inserted by Ordinance XXIII of 1959 were in the following terms: ---‑
"(4) Where in the opinion of the Central Government any document made, printed or published contains any news, report or information as aforesaid or is made, printed or published with the aid of funds from foreign sources the Central Govern ment may, by order, remove the owners or any of them or, in the case of a company, any director or managing director or managing agent or any other person from the control or management of the undertaking where such document is made, printed or published for such period or periods as may be specified in the order and appoint a person to take possession of the whole or any part of the undertaking or its property, movable or immovable, and to exercise such powers and per form such duties as may be set down in the order.
(5) A person appointed under subsection (4) shall be paid out of the funds of said undertaking such remuneration ‑as the Central Government may determine.
(6) Where an order has been made under subsection (4) the Central Government may give a direction‑
(a) that the undertaking or any part thereof shall be disposed of in such manner and by such person as may be authorised therein; and
(b) in the case of a company that the shares held by every or any director or shareholder shall be seized, wherever the shares may be, by such person as may be authorised in the direction and shall be disposed of by him, notwithstanding anything in any law for the time being in force, in such manner that such director or share‑holder shall effectively cease to hold them.
(7) All moneys realised by a disposal under clause (a) or clause (b) of subsection (6) shall be paid to every owner, director or shareholder whose property has been disposed of, after deducting the cost of disposal.
(8) Where any person has been appointed under subsection (4) to take possession of any undertaking or part thereof or of its property or where a direction has been given in pursuance of clause (b) of subsection (6) for the seizure of shares, any police officer may seize the same, anywhere in Pakistan, and any Magistrate may by warrant authorize any police officer not below the rank of Sub‑Inspector to enter upon and search any premises whereon or wherein the same are or are in good faith believed to be.
(9) In forming an opinion under this section the Central Government may take into consideration any complaint by a share‑holder where the undertaking is conducted by a company, as to the mode of that conduct or; where the undertaking is conducted by a company or not, any complaint by any person that the undertaking in question is conducted in a manner prejudicial to the public interest."
The other Ordinance which need be mentioned was the Security of Pakistan (Amendment) Ordinance, 1961 (XIV of 1961). This Ordinance, which was promulgated by the President of Pakistan on the 22nd of April 1961 and was published in pages 834‑a to 834‑h of the Gazette of, Pakistan Extraordinary of that date, amended the Act in a number of ways, but the amendments relevant for the present purpose were that subsections (4) to (9), which had been inserted in section 11 of the Act by Ordinance XXIII of 1959, were omitted and new sections, which were called 11‑A, 11‑B and 11‑C, were inserted. However, details need only be given here of section 11‑A. This section, under which the impugned order of the Central Government was passed, reads as follows:
"11‑A. Control of certain undertakings and sale o shares, etc.‑(1) Where the Central Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing, publishing or otherwise disseminat ing news, reports, or information, likely to endanger the defence, the external affairs or the security of Pakistan or any part thereof, or for the purpose of promoting such interests of any foreign State as are in conflict with the interests of Pakistan, it may, by order, remove the owner or, if there be more than one, all or any of them, and, in the case of a company, all or any of the directors, managing directors, managing agents or any other person, from the control or management of such undertaking, and appoint a person to take possession of the whole or any part of the undertaking or its property, movable or immovable, and exercise such powers and perform such duties, including, in the case of a company, all or any of the powers or duties of the Board of Directors, as may be set down in the order, and such appointment may at any time be revoked, and afresh appointment made on such conditions and with such limitations as the Central Government may determine.
(2) Where an order has been made under subsection (1), the Central Government, or any authority or person authorised by it in this behalf, shall, as soon as possible, make arrangements to transfer, subject to such conditions as may be deemed fit, and transfer, by way of sale, in any manner considered expedient, any right, title or interest in the undertaking or if the under taking be a company, in the shares thereof, of any director or shareholder to any other person not acting for or on behalf of or in collusion with such director or shareholder.
(3) Every sale under subsection (2) shall be subject to confir mation by the Central Government, and such confirmation shall be notified in the official gazette.
(4) If such undertaking as aforesaid‑ be a company, the Central Government, may give a direction, that the shares held by every or any director or shareholder shall be seized, wherever the shares may be, for sale under subsection (2), in such manner that such director or shareholder shall effectively cease to hold them.
(5) Where possession has been taken under subsection (1), or a direction has been given in pursuance of subsection (4), any police officers may seize any property of the under taking, or the shares thereof, or any document relating thereto, found anywhere in Pakistan, and any Magistrate may, by warrant, authorize any police officer not below the rank of Sub‑Inspector, to enter upon and search for any such property, share or document in any premises where the same may be or may reasonably be suspected to be.
(6) The Central Government, or any authority or person authorised by it in this behalf, may, by order, make such arrangements as may be considered expedient to ensure that the continuity o f the functioning of the undertaking affected by an order under subsection (1) is not interrupted during the period between the date of such order and the date on which the person appointed under subsection (1) makes over the control and management of the undertaking under subsection (5) of sec tion 11‑B, and any expenditure incurred in connection with such arrangements, including the remuneration of any person or persons, shall be met as the expenses of the undertaking.
(7) If within fourteen days of the promulgation of this Ordinance or the publication of a notification under sub section (3), the person whose right, title or interest has been transferred by sale, or the person to whom the sale has been made, makes to the Central Government a representation against the sale, the Central Government, after perusal of the record, may, subject to such condition as it may deem fit to impose, set aside the sale and order a fresh. sale.
A fresh sale under this subsection shall be deemed to be a sale under subsection (2).
The Central Government shall not be bound to hear any of the parties. or their counsel or agent, or to examine any witness or document, before making an order under this subsection.
(8) Before a sale is set aside under subsection (7), the Central Government may require the person making the representation to pay an amount sufficient to meet the expenses of the sale, and to forfeit to the Central Government such other amount; not exceeding twenty‑five per cent. of the sale price, as may be determined by the Central Government.
(9) If the purchaser fails to pay the full price of the sale, the property may be resold, and any deficiency which may happen on resale and all expenses attending such resale may be recovered from him.
(10) Any, amount payable under this section, whether as un paid price, or as forfeiture or otherwise, if not paid within the time specified, if any, shall be recoverable as arrears of land revenue.
(11) The sale shall be complete after all proceedings under this section relating to sale or resale, as the case may be, have been concluded and all sums due from the purchaser in whose favour the sale has been concluded have been paid by or recovered from him."
Section 5 of Ordinance XIY 1of 1961, which too is relevant, is reproduced below :‑
5.----‑Savings.
"Anything done, action taken, order passed, appointment made or direction issued, or purporting to have been done, taken, passed, made or issued, under the said Act on or after the sixteenth day of April 1959, and before the promulgation of this Ordinance shall, so far as may be, be deemed to 'have been done, taken, passed, made r issued, under the. said Act as amended by this Ordinance, and shall have, and shall be deemed always to have had effect accordingly."
7. On the 22nd of April 1961, by Notification S. R. O. No. 19, the sale of shares of Mian Iftikhar-ud‑Din and Mian Arif Iftikhar in the Progressive Papers Ltd., which was held by means of an auction at Lahore on the 20th of August 1959, by Mr. Muhammad Sarfraz, respondent No.1, was confirmed in favour of Mr. Ahmad Dawood for Rs. 64,40,000, the higher bid of Rs. 64,50,000 by Mr. Saihgal having been rejected by the Central Government. This order of confirmation of the sale was passed after the promulgation of Ordinance XIV of 1961 and it is clearly mentioned in the notification that the sale of shares was confirmed under subsection (3) of section 11‑A of the Act. It was after this confirmation of the sale that Mr. Ahmad Dawood appears to have made an application to the Government of Pakistan under subsection (7) of section 11‑A of the Security of Pakistan Act as amended by Ordinance XIV of 1961 that the sale be set aside, which was done by the Pakistan Central Government.
8. I have already disposed of the plea that the order of the Pakistan Central Government by means of which the sale in favour of Mr. Ahmad Dawood has been set aside was ineffective on the ground that it was mala fide and the contentions of Mr. Mahmud Ali regarding the invalidity of Ordinance XIV of 1961 will now be taken up. His first contention on, the point was that the President of Pakistan was incompetent to promulgate an Ordinance and, therefore, the Ordinance in question lacked all validity. In support of this argument, learned counsel pressed into service the Laws (Continuance in Force) Order, 1958. In order that the contentions of Mr. Mahmud Ali be fully apprecia ted, it is necessary to reproduce the first five articles of the Laws (Continuance in Force) Order, 1958. They read as under.
"1. (1) This Order may be called the Laws (Continuance in Force) Order, 1958.
(2) It shall come into force at once and be deemed to have taken effect immediately upon the making of the Proclamation of the seventh day of October 1958, hereinafter referred to as the Proclamation.
(3) It extends to the whole of Pakistan.
2. (1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, hereinafter referred to as the late Consti tution, by the Proclamation and subject to any Order of t he President, or Regulation made by the Chief Administrator of Martial Law, the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.
(2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and, subject further to the provisions of this Order, in their powers and jurisdictions.
(3) The law declared by tile Supreme Court shall be binding on all Courts in Pakistan.
(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus prohibition, quo warranto and certiorari.
(5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either.
(6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised.
(7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this' Order are hereby declared valid and binding on all Courts and authorities in Pakistan but saving those orders and judgments no writ or order for a writ issued or made after the Proclama tion shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith.
No Court or person shall call or permit to be called in ques tion (i) the Proclamation ;
(ii) any order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation;
(iii) any finding, judgment or order of a special Military Court or a Summary Military Court.
4. (1) Notwithstanding the abrogation of the late Constitution and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, by‑laws, Regulations, Notifications and other legal instruments in, force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.
(2) In this article a law is said to be in force if it has effected as law whether or not the law has been brought into operation.
(3) No Court shall call into question any adaptation made by the President under clause (1).
5. (1) The powers of a Governor shall be those which he would have had, had tae President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force.
(2) In the exercise of the powers conferred by the previous clause the Governor shall act subject to any directions given to him by the President or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator.
(3) Nothing in this Article shall prejudice the operation of any Regulation made by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator of Martial Law to make Martial Law Regulations and where any Ordinance or any provision thereof made under clause (1) of this Article is repugnant to any such Regulation or part thereof, the Regulation or part shall prevail."
The argument was that Article 4 of the Order meant that all laws in force in Pakistan were to continue in force in spite of the abrogation of the late Constitution but were subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, and therefore, no law continued in force by the 1958 Order could be amended by the President of Pakistan except by an Order, and if the President made amendments in any such laws by what he called an Ordinance, the Ordinance was nothing but a dead letter. It is true that Article 4 makes mention of an Order of the President, but it is clear that that mention does not mean that it was only by means of an order that the President of Pakistan could amend any law which had been kept alive by means of Article 4 of the Laws (Continuance in Force) Order, 1958. The last eight words of paragraph (1) of Article 4 of the Laws (Continuance in Force) Order, 1958, made it clear that the laws continued in force thereby were subject to alteration, repeat or amendment by competent authority. It cannot escape notice that the Laws (Continuance in Force) Order, 1958, did not say that the President of Pakistan was competent to make laws on any subject. However, it was not denied by Mr. Mahmud Ali that powers to make all kinds of laws vested in the President and indeed if, in the face of the language used in the order and of the decision of their Lordships of the Supreme Court in The State v. Dosso (P L D 1958 S C (Pak.) 533), the learned counsel had raised a contention to the contrary, it would have been repelled at once. It follows, there fore, that if under the present Constitutional provisions, the President passed a law on any subject, that law cannot be declared to be void by Courts on the ground that he had purported to exercise a power which did not vest in him. If the President of Pakistan can bring on the statute book any law that he considers necessary, one fails to see how on the argument addressed, by Mr. Mahmud Ali himself, Ordinance XIV of 1961 could be declared to be invalid. The argument could possibly have had some force if under a law that bound him the President .of Pakistan could make laws about some subjects by making Ordinance and on other subjects by making Orders, and had termed a law passed, by him an Ordinance when it should have been termed an Order, but if the position taken by Mr. Mahmud Ali, that it is only by means of an Order that the President of Pakistan can pass any law, be correct, I do not see how a law made by the President can be declared to be invalid on the ground that instead of calling it an order he had chosen to call it an Ordinance. Mr. Mahmud Ali sought support from a decision of the Supreme Court of Pakistan reported as Muhammad Ayub Khuhro v. Pakistan (P L D 1960 S C (Pak.) 237), wherein it was laid down that if a thing can be done by a Martial Law
Regulation but had been done by a Martial Law Order, it could not be said to have been validly done. It appears to me that on his own argument the remarks relied upon by Mr. Mahmud Ali are of no assistance to him because if a Martial Law authority can issue a Martial Law Regulation as well as a Martial Law Order, and if what had been promulgated by means of an Order could be promulgated by means of a Regulation alone, the validity of the Order may be open to question, but in the case under considera tion, the position of Mr. Mahmud Ali being that the President of Pakistan can make or amend laws on all subjects by issuing Orders alone, it is clearly not open to him to place reliance on a decision of the Supreme Court which concerned itself with a position in which certain things could be done by a Martial Law Regulation and others by a Martial Law Order. It is undeniable that the Laws (Continuance in Force) Order, 1958, does not say that new laws could be made by the President of Pakistan by means of Orders alone and it will hardly be open to any one to say that a law made by the President on a matter not covered by a law kept alive under the Laws (Continuance in Force) Order, 1958, was invalid on the ground that it was called an Ordinance. It is incon ceivable that the Laws (Continuance in Force) Order, 1958, meant that an amendment in a law kept alive was to be made by an Order issued by the President while a new law could be made by a writing which could be called an Ordinance.
9. But before I pass on to the other points raised by him, I might examine the argument of Mr. Mahmud Ali from another angle. The question to be determined is whether or not the President of Pakistan can, in face of the provisions contained in Article 4 of the Laws (Continuance in Force) Order, 1958, amend a law continued in force, by promulgating an Ordinance. In' its original form the Laws (Continuance in Force) Order, 1958, was issued on the 10th of October 1958 by Mr. Iskander Mirza, the then President of Pakistan, who had three days earlier imposed Martial Law. It follows, therefore, that no one was in a better position than he to say what he meant by the words used in that Order. If he had meant that the President of Pakistan could only by means of an Order amend a law continued in force by virtue of Article 4 of the Laws (Continuance in Force) Order, 1958, he would not have made an amendment in any law kept in force in Pakistan, by means of an Ordinance, but one finds that Mr. Iskandar Mirza, on the language used by whom Mr. Mahmud Ali places such extreme reliance, issued an Ordinance on the 17th of October 1958, whereby he amended a law continued in force by Article 4 of the Laws (Continuance in Force) Order, 1958. I allude here to Post‑Proclamation Ordinance I of 1958 entitled " The Bombay Co‑operative Societies (Amendment) Ordinance, 1958". It is inconceivable that within the short period of seven days, Mr. Iskandar Mirza had forgotten what he himself had proclaimed to the world by means of the Laws (Continuance in Force) Order regarding the means by which the President of Pakistan could amend laws kept in force by that Order. But even if one were to presume that Mr. Iskandar Mirza suffered from such unbelievable lapse of memory, I am of the view that the name given to the law made by the President could not affect its validity in the least.
10. It will not be out of place to mention here that four Ordinances were promulgated by the President of Pakistan between the 10th of October and the 31st of October 1958, fifty‑two Ordin ances were promulgated by him in the year 1959, fifty‑four in 1960, and no less than seventeen Ordinances have been promulgated by him till the 7th of May this year. One thing common to all these Ordinances is that each deals with legal as distinguished from cons titutional provision but while some Ordinances made laws others amended some of the laws kept in force under the Laws (Continu ance in Force) Order, 1958. With regard to constitutional provisions the practice since October 1958 when Martial Law was imposed has been that President's Orders have been issued for implementing or amending the Laws (Continuance in Force) Order, 1958. This consistent course of conduct since the imposition of Martial Law makes it manifest that the interim Constitution contained in the Laws (Continuance in Force) Order, 1958, can be amended by means of President's Order just as new provisions of the Constitution can be made, while the provisions of the existing laws can be amended, and new laws can be enforced, by means of an Ordinance. Another contention of Mr. Mahmud Ali in support of his argument that after the passing of the Laws (Continuance in Force) Order, 1958, the President of Pakistan divested himself of his power to make laws except by means of Presidential Orders may here be mentioned. He pointed to Article 5 of the Laws (Continuance in Force) Order, 1958 which confers on a Governor he power to issue Ordinances about certain subjects, and wanted it to be inferred that if the intention had been that even the President of Pakistan could issue an Ordinance as distinguished from an Order, the power would have found mention in the Laws (Continuance in Force) Order, 1958. The contention is untenable because if the powers to issue Ordinances bad not been conferred n the Governors of Provinces they could not have made laws at all because the Constitution of 1956, which conferred powers or Governors to make laws, bad been abrogated. As regards the President of Pakistan, however, the conditions that apply to the case of the Governors were inapplicable because if he could make a law which was to be the interim Constitution of Pakistan he would e competent to make any other law as well and the fact that he called that law by a name that should not have been used for it will not deprive the law of its validity. For the reasons that have given, I am clearly of the view that the President of Pakistan is not debarred from making new laws and making amendments in laws by means of Ordinances promulgated by him.
11. I will now take up the second of the attacks of Mr. Mahmud Ali on the validity of Ordinance XIV of 1961. He con tended that a law, even though it may have been introduced by means of an Ordinance promulgated in the period after the imposi tion of Martial Law, could be declared by a Court to be invalid i L it were established that the law had resulted from the mala fides of the law‑maker, and in support of this contention he relied on a case reported as Chaudhri Qaseem‑ud‑Din v. The Province of West Pakistan, (P L D 1959 Lah. 76) which was heard by two Judges of this Court the two learned Judges expressed the view that it was open to the Courts to declare a legislative measure as invalid if it had been brought on the statute book for ulterior purposes, while the latter said that it was not within the power of Courts to do so. The two learned Judges were not agreed on some of the points which were raised and ordinarily the case would have gone to some other Judge or Judges whose opinion alone would have been the judgment of the Court, but before that was done, some order was passed by the then West Pakistan Provincial Government whereby the writ petition in which the two Judges had expressed M the above mentioned views, which, with regard to the relevant matter conflicted with each other, was dismissed as having become infructuous. Ordinarily one would not have expected the views of the Judges to be reported in a law journal because none of the views could be considered to be final, but for some reason these views did find their way in the pages of a law reporting journal. It appears to me that it is not necessary to examine the question whether the views on this point expressed by Kaikaus, J. or those expressed by Muhammad Yaqub Ali, J. were correct, because just as in the case of the assertion that the action of the Central Government was mala fide the applicants have not mentioned any facts which may savour of bad faith on the part of the President of Pakistan who promulgated the Ordinance. Consequently, even if Ordinance XIV of 1961 could have been declared to be invalid on the ground that it had resulted from ulterior motives it cannot be so declared in this case by reason of the fact that nothing which might even hint that the President of Pakistan who promulgated the Ordinance had intended to harm the applicants has been said in the application.
12. It is, however, undeniable that it would be open to Courts to declare the Ordinance to be invalid if they come to the conclusion that the Ordinance had crossed the frontiers within which it had to remain. It having been rightly admitted by Mr. Mahmud Ali that the President of Pakistan is empowered to make laws for Pakistan under the interim Constitution of Pakistan, which can be spelt out from the various Orders issued from time to time since the imposition of Martial Law, it is clear that the Ordinance under consideration cannot be declared to be invalid on the ground that it dealt with a subject with which the President could not have dealt. In this view of the matter the attack of Mr. Mahmud Ali on the Ordinance in question on the ground that it set at naught a transac tion that had been completed calls for no serious consideration. It is a fundamental principle of law that the authority which can make laws on a subject can make such laws retrospective in operation in spite of the consideration whether or not any transac tions which had been completed earlier would be affected. The general rule about laws is that those which deal with substantive rights, as distinguished from those dealing with procedure, are to be presumed to be prospective but this is subject to the condition that the law under consideration does not make it clear that it is intended to be retrospective in operation. That being the law. I do not consider it necessary to determine whether the sale in favour of Mr. Ahmad Dawood had been completed long before the 22nd of April 1961, on which date the notification, regarding the confirmation of the sale by the Central Government was issued in the Gazette of Pakistan because even if it had been completed before the 22nd of April 1961. Ordinance XIV of 1961 would not be invalid by reason of the fact that it could be employed to set at naught transaction which had been completed before its promulgation. When a law can be used to upset complete transactions, it may in some cases appear unjust and in some others eminently just, in either cases it would retain its legality provided it was not invalid for some other reason. I would, therefore, hold that Ordinance XIV of 1961 cannot be held to be invalid for the reason that it could be used to set at naught transaction which is claimed by the applicants to have been completed and my finding would have been the some even if the powers of the President of Pakistan to make laws were not as untrammelled as they have been since the imposition of Martial Law.
13. Another attack which Mr. Mahmud Ali made on Ordinance XIV of 1961 and the impugned order passed thereunder may now be noticed. He contended that section ‑11‑A of the Ordinance was not good law because it did not afford the persons who were likely to be affected by an order of cancellation of sale an opportunity to be heard before the order was passed. A right of a person to be heard was spelt out by the learned counsel from what he called the principles of natural justice. I will not examine the question whether natural justice ensures that a creature be heard before being deprived of life, liberty, limb or any of its possession because that question does not really arise in this case. It will be noticed that subsection (7) of section 11 A of Ordinance XIV of 1961 is to the effect that none of the parties likely to be affected by an order of cancellation of a sale had a right to be heard before the order was passed, and as specific provision exists in the relevant law which provides for administration of mundane justice it is not permissible to invoke principles of natural justice with a view to having it declared that the Ordinance was not good law. In cases where a party has not been given by a man‑made law a right of being heard before an order adverse to that party is passed that law can under no binding provision of any law that can be enforced by Courts be declared to be invalid on the ground that the party had been deprived of a right of audience which according to some is granted to every being great or small under the principles of natural justice. In cases where a right of being heard has not been specifically denied by a valid law it may perhaps be open to Courts to hold that principles of natural justice require that a right of audience should be presumed not to have been taken away, but the same cannot be said of a law which is not invalid under a binding law on account of the fact that no opportunity is afforded to a party to show cause against a decision which may be adverse to that party. With regard to the impugned order Mr. Mahmud Ali said that even if subsection (7) did not grant the party likely to be affected by an order of cancellation of sale an opportunity to be heard in person or through an agent or pleader, it could not have been intended to deny the parties an opportunity to represent their cases in writing and that as no opportunity was given to the applicants to send even written representation the impugned order was not valid. This argument cannot be supported on the language used in subsection (7) of section 11‑A of Ordinance X IV of 1961. 1 am prepared to say that it would have been very much better if the applicants had been given ‑an opportunity to show cause why the sale of their shares effected in favour of Mr. Ahmad Dawood should not be cancelled, but as the applicants were not entitled to be afforded that opportunity the omission to afford the opportunity cannot be of an avail to the applicants.
14. The next attack of Mr. Mahmud Ali on Ordinance XIV of 1961 was on the score of what he termed its conflict with Martial Law Regulation No. 72. This Regulation, which was issued on the 29th of July 1959, reads as follows :‑
"(1) Notwithstanding anything in the Laws (Continuance in Force) Order, 1956, (President's Order Post‑Proclamation No. 1 of 1958), anything done or to be done, or intended, expressed or purported to be or to have been done, under the Security of Pakistan Act, 1952 (XXXV of 1952), on or after the 10th day of October 1958, shall be deemed to be or to have been done under this Regulation, as if the provisions of the said Act as amended after the said day were for the time being incorporated in this Regulation, and shall have and shall be deemed always to have had effect accordingly.
(2) Notwithstanding anything in the aforesaid Order, no suit, prosecution or other legal proceedings, whether by way of writ petition or otherwise, shall lie in any Court, including the High Courts and the Supreme Court, against Government, or any person acting under the authority of Government, for anything done or to be done, or intended, expressed or purported to be or to have been done under the aforesaid Acton or after the aforesaid day, and, any such suit, prosecution or other legal proceedings pending before any such Court shall abate forthwith, and no Court shall proceed with them. .
(3) No provision of this Regulation shall be called in question in any Court, including the High Courts and the Supreme Court." Learned counsel for the petitioners argued that the Regulation meant that orders passed under the Security of Pakistan Act, 1954, as it stood on the 29th of July 1959, were to be deemed to be orders passed under the Regulation and added that for that reason the sale effected under Ordinance XX11I of 1959 was immune from being set aside under orders of any Court nor could any Court hold that the previous sale did not exist because if such a finding were given it would amount to questioning a Martial Law Regulation which, on account of Article 3 of Laws (Continuance in Force) Order, 1958 and para graph 3 of Regulation 72, no Court was competent to do. The position taken up by Mr. Mahmud Ali was that the words "for the time being" which occur in paragraph 1 of Martial Law Regulation No. 72 could only mean up to the date on which the Martial Law Regulation was issued and in this connection he referred to a dictionary in which the meaning which Mr. Mahmud Ali wanted to be given to the expression "for the time being" was mentioned. I am clear in my mind that the method suggested by Mr. Mahmud Ali for interpreting the Regulation is incorrect for at least two reasons. One of those reasons is that the meaning which Mr. Mahmud Ali would want attached to the words "for the time being" is not the only meaning of these words. The second reason is that as mentioned by me in the case reported as Ghulam Mustafa v. The State (P L D 1960 Lah: 364), when interpreting Martiall Law Regulations and Martial Law Orders Courts should attach those meanings to them which flow from the words used and if the words used are not quite precise or clear the Courts should interpret the words keeping in view all the circumstances prevalent at the time when the Regulation or Order was issued and thereby finding out the intention of the person who issued the Regulation or Order. This is the only possible rule of interpretation of Martial Law Regulation and Martial Law Orders unless the Regulations or Orders or some other relevant ‑law lay down a rule of interpretation, which is not the case at present. Now, if Martial Law Regulation No. 72 is looked at in the manner mentioned above, it becomes clear that it means that all orders passed under the Security of Pakistan Act, 1952, at any time between the 10th of October 1958 and the date till which the R Martial Law Regulation remains in force shall be deemed to have been passed under that Regulation. That this was the intention is clear from the fact that even acts to be done after the 29th of July 1959 were mentioned in the Regulation. It is possible that some such acts may be done under the Security of Pakistan Act of 1952, as in force on the 29th of July 1959, but it is equally possible that such acts maybe done under the Security of Pakistan Act as amended at any time after the 29th of July 1959. I cannot persuade myself to believe that while the Chief Adminis trator of Martial Law, who issued Martial Law Regulation No: 72, intended that orders passed under an Act which dealt with such vital and delicate a subject as the security of Pakistan were not to be questioned in Courts if the Act as it stood between the 10th of October 1958 and the 29th of July 1959 allowed them, but should be open to question in Courts if they happened to be passed under the same Act as amended on any date after the 29th of July 1959. Having given the matter my full consideration, r I have reached the conclusion that the contention of Mr. Mahmud Ali that only the acts done under the Security of Pakistan Act, 1952, as it stood between the 10th of October 1958 and the 29th S of July 1959 were to be deemed to have been done under Martial 'Law Regulation No. 72 but not so the acts done under the Security of Pakistan Act, 1952, as amended after the 29th of July 1959; cannot be accepted on any reasonable ground. While on this subject, Mr. Mahmud Ali wanted to debate the question what the position would be if an Order issued by the President of Pakistan and a Martial Law Regulation issued by the Chief Martial Law Administrator were in conflict with each other, but as the question does not arise in the present case, he was not allowed to throw light on the subject.
15. The learned Attorney‑General argued that Ordinance XIV of 1961 was valid law because the President could promulgate Ordinances with regard to laws as distinguished from the Constitu tional provisions. In this connection he relied on paragraph (P h; D 1958 S C (Pak.) 533) of Article 2 of the Laws (Continuance in Force) Order, 1958, which along with some other provisions of this Order has been reproduced in an earlier paragraph. The contention of the learned Attorney‑General was that making of laws was an act of governing Pakistan and, therefore, the President could promulgate an Ordinance because he could do so under the Constitution which had been abrogated. Mr. Mahmud Ali sought to refute this contention of the learned Attorney‑General by saying that making of laws was a legislative as distinguished from a governmental function and to support his contention referred to some remarks made in State v. Dosso. The case State v. Dosso was heard by four learned Judges of the Supreme Court and with regard to Article 2 of the Laws (Continuance in Force) Order, 1958, the remarks on which Mr. Mahmud Ali placed reliance were as under: --‑
Mr. Justice Muhammad Munir, the then Chief Justice of Pakistan :‑
"It is true that Article 2 provides that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision does not have the effect of restoring fundamental rights because the reference to Govern ment in this Article is to the structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article 4. Article 2 and Article 4 can, therefore, stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article 4 which are more specific and later must override those of Article 2."
Shahab‑ud‑Din, J :‑
"Viewing the provisions of the new Order from this stand point, I am unable to agree with Mr. Bakhtayar that fundamental rights are preserved by it. It is true that under Article 2 (1) "Pakistan shall be governed as nearly as may be in accordance with the late Constitution" but there is also a specific provision in the same Order, Article 2 (1) which validates all laws in force immediately before the Proclamation other than the late Constitution. This specific exclusion of the late Constitution means that it is not amongst the laws which have received validity from the new Order, and, therefore, none of its provisions can affect the laws validated in Article 4 (1) which includes the Frontier Crimes Regulation. The words in Article 2 (1) relied on by Mr. Bakhtayar have to be taken to refer rather to the machinery of Government than to legisla tion and matters affecting the validity of laws. Article 2 (1) and Article 4 (1) should be read together and so to read they do not conflict with each other."
Amir‑ud‑Din, J.
"It was argued in one of the appeals on behalf of the respondent that as under Article 2 of the Order, Pakistan is to be governed as nearly as may be in accordance with the late Constitution, the Fundamental Rights in Part II of the said Constitution are still available to the petitioners for writ. I am unable to accept that Fundamental Rights have been saved. The word "governed relates to the structure and manner of Government, which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries, and the words in the Article have not the effect of reviving the Fundamental Rights. This view finds support also from the language of Article 4 clause (i) of the said Order."
The fourth learned Judge, namely Mr. Justice Cornelius, the present Chief Justice of Pakistan, whose decision was contrary to that of his three colleagues, did not, however, express his views on the question under consideration.
16. It will be noticed that the views of the three learned Judges of the Supreme Court, who had considered Article 2 of the Laws (Continuance in Force) Order of 1958, are not precisely the same. That being so, it follows that the views of none of the three learned Judges could be deemed to be the law declared by the Supreme Court, a declaration of which kind is binding on all Courts in Pakistan. But even if it be held that those views had declared the law, I am of the opinion, that the point that arises here not having, been raised before the Supreme Court in Dosso's case, general remarks made by the Supreme Court while dealing with another matter cannot deprive this Court of the power to examine the arguments addressed to itself. The point for determination in Dosso's case was whether those of the provisions of the Frontier Crimes Regulation which had become a dead letter by reason of the fact that they would come into conflict with rights mentioned in the Constitution of the Islamic Republic of Pakistan in which, having become law on the 23rd of March 1956, was abrogated on the 7th of October 1958, had been revived on account of the abrogation of the late Constitution and the point that requires determination in this case is entirely different, namely, whether making of laws is a step towards the Government of the country. The view that general remarks in a decision of a Court are to be considered to have been meant to apply primarily to the facts of the case in which they were made has been reiterated by the Supreme Court of Pakistan in Ibrahim v. The State (P L D 1961 S C (Pak.) 200), and it follows that the general remarks of three learned Judges of the Supreme Court in Dosso's case on which Mr. Mahmud Ali relied cannot be taken to apply to all cases in which the interpretation of Article 2 of the Laws (Continuance in Force) Order, 1958, comes under consideration.
17. The Laws (Continuance in Force) Order, 1958, does not define the term "Government" as used in its Second Article and it would, therefore, be permissible to attach to the expression its general meaning. As I read paragraph 1 of Article 2 ' of the Laws (Continuance in Force) Order, 1958, one of the meanings that can be attached to it is that if Government of the country was being run under the abrogated Constitution of 1956 in accordance with rules, it shall be run according to rules even after the abrogation of the Constitution. It is undeniable that before the abrogation of the Constitution of 1956, Government was run in accordance with laws and that state of affairs was directed to be continued except in so far as there was a definite provision to the contrary in the Order itself. If the matter is looked at like this, it becomes obvious that when the President of Pakistan makes a law he takes a step in the Government or Pakistan, and paragraph I of Article 2 of the Laws (Continuance in Force) Order, 1958, could be deemed to apply. It is true that when the President of Pakistan, or the Governor of one ot, the two Provinces of Pakistan, promulgates an Ordinance he i performing what is generally termed a legislative function, but that does not mean that the enforcement of the Ordinance that issued is not governance of Pakistan under those Ordinances. But even if the view expressed by me with regard to the meaning of the word "Government" occurring in Article 2 of the Laws (Continuance in Force) Order, 1958, be incorrect, the powers of the President to issue or promulgate Ordinances exist as has been shown by me in any earlier paragraph.
18. The second of the main contentions of the learned Attorney‑General, which was to the effect that Ordinance XIV of 1961 being a valid law, orders passed thereunder shall be deemed to be orders under Martial Law Regulation No. 72 (which has been reproduced in paragraph 14) and would, therefore, be immune from interference by this Court, may now be taken up. I have held‑ that Ordinance XIV of 1961 was a perfectly valid law and consequently cannot but accept the contention of the learned Attorney‑General that orders passed thereunder shall be deemed to be orders passed under Martial Law Regulation No. 72. That being so, the staying of the operation of the impugned order is not permissible because if that is done it would amount to questioning the validity of the Regulation or the action taken under the Regulation which, is specifically forbidden by Article 3 of the Laws (Continuance in Force) Order, 1958, and paragraph 3 of the Martial Law Regulation No. 72. If, however, Ordinance XIV of 1961 had been held to be invalid, Orders passed thereunder could not have been treated as orders passed under Martial Law Regulation No. 72, because it is hardly open to question that only valid amendments in the Security of Pakistan Act were contemplated by the Regulation and not these amendments which may offend against law. In view of what I have said, the contention of the learned Attorney‑General cannot but be accepted.
19. At the conclusion of his lengthy arguments which lasted for about a day and a half, Mr. Mahmud Ali said that if his contentions did not find favour, no detailed order should be passed. It appears to me that the request was not reasonable as it came from a person who had at great length dealt with the questions that ‑required determination and had mentioned in the document he presented on the 22nd of May 1961 that the learned Judges of the Supreme Court had expressed, a hope that the questions that arose by reason of the promulgation of Ordinance XIV of 1961 will be fully and carefully considered by the High Court.
20. In view of what I have said above, I hold that the application presented on behalf of Mian Iftikhar‑ud‑Din and Mr. Arif Iftikhar has no force and would dismiss it. As regards the application presented on the 17th May, 1961 by the learned Attorney‑General (C. M. 1236 of 1961), I would pass no orders thereon. This is due to two reasons,, the first being that a Division Bench of this Court having directed by its order dated the 7th of February 1961 that the respondents should put in their written statements, that order cannot be set aside by review or an appeal by any other Bench of this Court, and the second being that the question Whether or not Writ Petition No..742 of 1960 can proceed is pending before the Supreme Court on an appeal from the order passed on the 7th of February 1961, and it is not proper that this Court should pass any order with regard to the petition. I would, however, direct that the parties shall bear their own costs.
The facts of this case are fully set out in the exhaustive judgment of my learned brother Shabir Ahmad, which I have had the advantage of perusing, and need not be recapitulated. I respectfully agree with the finding of my learned brother that the application on behalf of Mian Iftikhar‑ud‑Din and Mr. Arif Iftikhar must be dismissed and that the, application (C. M. No. 1236 of 1961) presented on the 17th of May 1961 by the learned Attorney‑General calls for no orders at present. I also agree that the parties should bear their own costs, but I should like to add one or two comments on points arising in the course of the present proceedings.
2. The first of the above points concerns the argument of Mr. Mahmud Ali that Ordinance XIV of 1961 must be deemed to be invalid as it set at naught a complete transaction. This contention is completely untenable. It is no doubt true that a enactment affecting the vested rights of an individual is not to be construed as haying retrospective operation unless such an intention appears either expressly or by necessary implication. As pointed out by Maxwell in his well‑known work "On The Interpretation of Statutes", ninth edition, at page 221: "Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospec tive operation. * * * * " " * * * They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be 7 clearly intended." As pointed out by the learned author, this principle of the avoidance ‑of injustice applies even in the case of those enactments which deal solely or primarily with procedure. At page 234 of the same work he observed:
"But a new procedure would be presumably inapplicable, where its application would prejudice rights established under the old, or would involve a breach of faith between the parties."
In the present case, however, the intention to give Ordinance XIV of 1961 retrospective operation is expressed in the clearest possible terms in section 1 (2), which runs:
"It shall come into force at once, and shall be deemed t have taken effect on the 16th day of April, 1959.
The above date is, it will be observed, that on which the first of the two repealed Ordinances (Nos. XXIII and XXXIX of 1959) came into force.
3. The legal effect of Ordinance XIV of 1961 is also clear. Subsections (4) to (9) introduced into section 11 of the Security of Pakistan Act by Ordinance XXIII of 1959, under which the Central Government had originally acted, disappeared and must be held to have never legally existed. They were replaced by sections 11‑A, 11‑B, and 11‑C. The sale of the shares of the petitioners must consequently be deemed to have taken place under section 11‑A, and subsection, (3) of that section provides
"Every sale under subsection (2) shall be subject to confirma tion by the Central Government and such confirmation shall be notified in the Official Gazette."
Since the sale now in dispute was only confirmed on the 22nd of April 1961, after the promulgation of Ordinance XIV of that year, Mr. Mahmud Ali's argument that the Ordinance in question had the effect of setting aside a completed transaction is miscon ceived, and it would be profitless to enter into a discussion of what the position would have been but for the promulgation of the Ordinance in dispute. Whatever opinion may be held regarding the justice or equity of the Ordinance, 1 know of no case where an enactment has been declared invalid merely on the ground that it has been given retrospective effect.
4. Dealing with Mr. Mahmud Ali's argument that in view of the provisions of the Laws (Continuance in Force) Order, 1958, the President of Pakistan had power only to issue Orders and not Ordinances, my learned brother remarks:
"Mr. Mahmud Ali sought support from a decision of the Supreme Court of Pakistan reported as Muhammad Ayub Khuhro v. Pakistan (P L D 1960 S C (Pak.) 237), wherein it was laid down that if a thing can be done by a Martial Law Regulation but had been done by a Martial Law Order, it could not be said to have been validly done. It appears to me that on his own argument the remarks relied upon by Mr. Mahmud Ali are of no assistance to him because if a Martial Law autho rity can issue a Martial Law Regulation as well as a Martial Law Order, and if what had been promulgated by means of an Order could be promulgated by means of a Regulation alone, the validity of the Order may be open to question, but in the case under consideration, the position of Mr. Mahmud Ali being that the President of Pakistan can make or amend laws on all subjects by issuing Orders alone, it is clearly not open to him to place reliance on a decision of the Supreme Court which concerned itself with a position in which certain things could be done by a Martial Law Regulation and others by a Martial Law order."
With great respect, I would give a somewhat different answer to the above argument of Mr. Mahmud Ali. To my mind the essential point is that the general authority given to Martial Law Administrators to issue Martial Law Orders and Martial Law Regulations was a delegated power, the main legislative authority being kept by the Chief Martial Law Administrator with himself. It is a fundamental principle of law that a delegate must act within the limits of the power delegated to him, and that if he trans gresses those limits any action taken by him can be called in ques tion. It was further pointed out by the learned Judges of the Supreme Court in Khuhro's case that with and after the promul gation of the Laws (Continuance in Force) Order the distinction z between Regulations and Orders had become fundamental. In Dosso's case (P L D 1958 Supreme Court (Pak.) 533), on the other hand, Munir C.J.; observed:
"Under the new legal Order any law may at any time be changed by the President and therefore there is no such thing as a fundamental right, there being no restriction on the Presi dent's law‑making powers:"
5. It is clear from the above that no analogy can legitimately be drawn between the power of the President to make laws and the delegated powers of a Martial Law Administrator to issue Regulations and Orders, and. for this reason Mr. Mahmud Ali's argument falls to the ground.
6. I respectfully agree with my learned brother that it is impossible to accept Mr. Mahmud Ali's contention that clause 1 of Martial Law Regulation No. 72 must be interpreted as meaning that only amendments‑incorporated in the Security of Pakistan Act up to the 29th of July 1959, the date on which the Regula tion was promulgated, can be considered to form part of it. The clause in question runs
"Notwithstanding anything in the Laws (Continuance in Force) Order, 1958 (President's Order Post‑Proclamation No. I of 1958), anything done or to be done or intended, expressed or purported to be or have been done, under the Security of Pakistan Act, 1952 (XXXV of 1952), on or after the 10th day of October, 1,58, shall be deemed to be or to have been done under this Regulation, as if the provisions of the said Act as amended after the said day were for the time being incorporated in this Regulation, and shall have and shall be deemed always to have had effect accordingly."
The construction sought to be placed by Mr. Mahmud Ali on the expression‑ "for the time being", namely, that it his the effect of, as it were, "freezing" the Security of Pakistan Act and rendering any amendment introduced after the 29th of July 1959 invalid, is completely untenable. The clear meaning of the clause in question is that the power to do an act in the future is to be A considered in the light of the provisions of the Security of Pakistan Act as it stands on the date of the proposed action. The propo sition that fresh Regulations must be issued from time to time to cover every new amendment in the Security of Pakistan Act is obviously absurd, but not more absurd than the contention that the result of Regulation No, 72 was to render the Security of Pakistan) Act static and consequently lifeless.
7. Finally, there is one point on which I find myself reluct antly compelled to disagree with the view of my learned brother Shabir Ahmad. In reply to the argument of the learned Attorney -General that the making of laws was an act of Government and that consequently the abrogation of the 1956 Constitution did not affect the power of the President to promulgate Ordinances, that power having been kept alive by clause 2 of the Laws (Continuance in Force) Order. Mr. Mahmud Ali relied upon the observations of three of the learned Judges of the Supreme Court in Dosso's case above referred to. In this connection my learned brother observes:
"It will be noticed that the views of the three learned Judges of the Supreme Court, who had considered Article 2 of the Laws (Continuance in Force) Order of 1958, are not precisely the same. That being so, it follows that the views of none of the three learned Judges could be deemed to be the law declared by the Supreme Court, a declaration of which kind is binding on all Courts in Pakistan."
8. In order clearly to understand the position, it is necessary to refer briefly to the facts of Dosso's case. They are that the validity of the Frontier Crimes Regulation was called in question in this Court by an application for a writ of habeas corpus and certiorari on the ground that the provisions of the said Regulation enabling the executive authorities to refer criminal cases to a Council of Elders were void under Article 4 of the Consti tution of the Republic of Pakistan, being repugnant to Article 5 thereof. The contention was accepted, and the convictions and sentences of the petitioners were set aside. The State appealed, but before the case came up for hearing in the Supreme Court on the 13th and 14th of October 1958, the 1956 Constitution had been abrogated. The question consequently arose of the effect of the abrogation on Article 5, which had embodied the provisions relating to the fundamental rights of citizens. The respondents took the only position open to them, namely, that Article 2(1) of the Laws (Continuance in Force) Order, 1958, provided that the Republic, to be known henceforth as Pakistan, should be governed as nearly as might be .in accordance with the late Consti tution and that Article 5 was kept alive by the above provision. The contention was repelled by three of the learned Judges who heard the appeal. No doubt, as pointed out by my learned brother, the phraseology used by the learned Judges is not identical, but on the essential point at issue I confess I can see no divergence of opinion, Munir C. J., remarks:
"This provision [Article 2 of the Laws (Continuance in Force) Order] does not have the effect of restoring fundamental rights because the reference to Government in this Article is to the structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article 4. Article 2 and Article 4 can, therefore, stand together and there is no conflict between them."
Shahab‑ud‑Din J. puts the matter thus:
"The words in Article 2 (1) relied on by Mr. Bakhtayar have to be taken to refer. rather to the machinery of Government than to legislation and matters affecting the validity of laws. Article 2 (1) and Article 4 (1) should be read together and so read they do not conflict with each other."
The relevant portion of Amir‑ud‑Din Ahmad, J,'s finding runs:
"The word 'governed' relates to the structure and manner of Government, which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries, and the words in the Article have not the effect of reviving the Funda mental Rights."
As I see it, Amir‑ud‑Din Ahmad, J,'s statement that the structure and manner of Government have been changed following the dissolution of the legislative bodies and the dismissal of the Ministries is only intended to clarify the expression "as nearly as may be" occurring in Clause (ii), and it is clear that his view is, essentially the same as that of his two learned brothers. I am therefore, with the utmost respect, constrained to hold that the t differences in phraseology to which my learned brother Shabir Ahmad has called attention are of no real significance. I am further of the opinion that the observation of Munir C. J. in the same case that there is no ‑restriction on the law‑making power of the President (an observation not dissented from by any of the other learned Judges)'is a declaration of the law on the point at present in issue, and, consequently binding on this Court.
I have had the advantage of reading the judg ments of my learned brethren Shabir Ahmad and Ortcheson, JJ. I concur in the order proposed by them, but in view of the importance of the questions raised on behalf of Mian Iftikhar -ud‑Din petitioner I desire to add a few words of my own.
2. Learned counsel for the petitioner has challenged the validity of the Security of Pakistan (Amendment) Ordinance, 1961 (XIV of 1961), on the ground that under the provisions of the interim Constitution the President has no power to promulgate any Ordinance. In support of this proposition he has addressed us lengthy and elaborate arguments. The burden of his arguments is that with the making of the Proclamation by the President on the 7th October 1958, the Constitution of the Islamic Republic of Pakistan was irrevocably abrogated; the Central Cabinet and the Provincial Cabinets were dismissed and the National Assembly and the Provincial Assemblies were dissolved and the country was placed under Martial Law. Thereafter the President did not want to rule the country as an ABSOLUTE AUTOCRAT but gave an interim Constitution in the form of a Legal Order known as the Laws (Continuance in Force) Order, 1958. This then became the Supreme law of the land. According to the provisions of this legal Order, the President has placed certain limitations upon his powers.
Learned counsel has, therefore, contended that in view of the provisions of the Laws (Continuance in Force) Order the President has no power to promulgate an Ordinance and that if he wishes to legislate he can do so only by means of making and promulgating an order as provided for in Article 2 of the said Order.
3. Having given the matter my anxious consideration I find myself unable to agree with this contention. Article 2 of the Laws. (Continuance in Force) Order provides that:
"Notwithstanding the abrogation of the Constitution and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, Pakistan shall be governed as nearly as may be in accordance with the provisions of the late Constitution."
This clearly means that in matters affecting the Government of the country the President can make use of the machinery provide for in the late Constitution. He can certainly exercise his power independently of the provisions of the late Constitution by making and promulgating necessary Order, but subject to such Orders he can in spite of the abrogation of the Constitution utilise its provisions in matters affecting the Government of the c country.
Article 69 of the late Constitution authorises the President, C subject to the restrictions specified therein, to promulgate Ordi nances when the National Assembly is not in session. The National Assembly having been dissolved, the President, therefore, is within his powers to utilise this machinery for the purpose of governing the country. I cannot, therefore, accept the contention that under the new legal Order the President is not empowered at all to promulgate Ordinances.
4. Before dealing with the other points which have been raised on behalf of Mian Iftikhar‑ud-din, I would like to dispose of an argument advanced by the learned Attorney‑General in support of the proposition that the President is empowered under the new legal Order to promulgate Ordinances. He has argued that the dictionary meaning of the words "Order" and "Ordinance" being "authoritative direction", it does not make any difference if the word "Ordinance" has been used instead of the word "Order". According to him these words are interchangeable. I confess that I have not been able to appreciate this arguments It is true that the President is the supreme legislative authority, and, consequently has full powers to legislate in any manner he likes, but this does not mean that if he has chosen a particular mode of expression of his legislative will, he can, without cancell ing that mode, at a different mode altogether. The argument that the command of President by whatever name it may be called is valid in the eye of law is quite untenable, because the President himself has chosen a particular mode of expression of his legis lative will as provided for in Article 2 of the Laws (Continuance in Force) Order.
I am of the view that the word "Ordinance" has been purposely used not because there is no difference between the meanings of the words "Order" and "Ordinance" but because this machinery is otherwise available to the President within the scope and meaning of the expression "shall be governed as nearly as may, be in accordance with the provisions of the let Constitution" used in Article 2 of the Laws (Continuance in Force) Order.
The word "Ordinance" has a recognised meaning in legal terminology, namely, the expression of the legislative will of the Executive Head of the Government when the National Assembly is not in session. The word "Order", however, does not neces sarily refer to the expression of the legislative will of the Executive Head. Besides, Orders can be made by the competent authority irrespective of the fact that the National Assembly is in session or not. In this view of the matter, the distinction is indeed funda mental and cannot be ignored.
5. The next argument which has been vigorously put forward by the learned counsel for Mian Iftikhar‑ud‑Din is that Ordinance XIV of 1961 does not relate to matters affecting the Government of the country and, hence, it could not have been promulgated by the President. For this proposition he has relied on the observations of their Lordships of the Supreme Court of Pakistan in the case reported as The State v. Dosso and another (P L D 1958 S C (Pak.) 533) Mr. Justice Muhammad Munir (the then Chief Justice of Pakistan) while dealing with Article 2 of the Laws (Continuance in Force) Order observed that "the reference to Government in this Article is to the structure and outline of Government and not to the laws of the late Constitu tion which have been expressly abrogated by Article 4. "Mr. Justice Shahab‑ud‑Din has remarked in this connection that "the words in Article 2 (1) relied on by Mr. Bakhtayar have to be taken to refer rather to the machinery of Government than to legislation and matters affecting the validity of laws." Mr. Justice Cornelius (now the Chief Justice of Pakistan), while dealing with this question has laid down as follows:‑
"Consequently, the words in section 2 of the Order, viz., in accordance with the late Constitution' only mean that in matters affecting the Government of the country, for which no provision is made in any instruments issued under the authority of the new regime, where guidance is needed, it is to be sought by reference to the wording of provisions contained in the Constitu tion of 1956 applicable in the like case."
Mr. Justice Amir-ud‑Din Ahmad has remarked that "the word governed' relates to the structure and manner of Government which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries." What I have been' able to understand from the above observations is that the Lordships have been pleased to lay down that if in any matte affecting the Government of the country, no provision has been made by the competent authority under the new Legal Order, then the machinery provided for the purpose in the‑ late Constitution E could be utilised.
6. By promulgating Ordinance XIV of 1961 the President has further amended the Security of Pakistan Act, 1952 (XXXV of 1952).
The object of enacting the Security of Pakistan Act, as its preamble shows, was to provide for special measures, to deal with person acting in a manner prejudicial to the defence, external affairs and security of Pakistan, or the maintenance of supplies and services essential for the community, or for the maintenance o public order. Having regard to the object of this piece of legisla tion, I have no doubt in my mind that it relates to matters affecting the Government of a country within the meaning and scope of the expression "shall be governed as nearly as may be in accordance with the provisions of the late Constitution." And as the President and the Chief Martial Law Administrator have not mad any Order or Regulation to the contrary, the President coul promulgate this Ordinance.
7. But even it be conceded that this Act does not deal wit matters affecting the Government of the country, then I am also of the view that the power to promulgate Ordinances is avaliable to the President in view of the provisions of Article 4 of the Law (Continuance in Force) Order. This Article has already bee quoted by my brother Shabir Ahmad J. From its perusal it will be seen that all the existing laws, other than the late Constitution, have been allowed to continue "until altered, repealed or amended by competent authority." The validity of these laws has of course been made subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. But so far the President leas not made any Order nor the Chief Administrator o Martial Law has made any Regulation in this regard. These laws, therefore, continue to have legal force "until altered, repealed o amended by competent authority."
This clearly shows that the competent authority is empowered to alter, repeal or amend these laws. It has not been laid down I as to who is the competent authority in. this behalf, and how the alteration, repeal or amendment is to be made.
Is this a lacuna in the Order or has it purposely been left at that In my opinion, the intention of the law‑maker was clearly to utilise the provisions of Article 69 of the late Constitution. If this had not been the intention, then one would have found the definition of the competent authority' given in it, as well as the mode by which the alteration, repeal or amendment was to b made. In the absence of this, how can one find as to who is the competent authority. It is only by reference to Article 69 of the late Constitution that one is able to find that the President is the competent authority. Looking to the general background and the surrounding circumstances, the conclusion is irresistible that the law‑maker had the intention of utilising the provisions of Article 69 of the late Constitution, and it is for that reason that it was not considered necessary to define "competent authority" and to prescribe the mode by which the alteration, repeal or amendment was to be made. This interpretation accords with the commonsense of the matter, and with what, I think, was the obvious intention of the law‑maker. By Article 5, such power of making Ordinances has been given to the Governor as he would have had and within such limitations, had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force. This was necessary because with the abrogation of the late Constitution the Governor had been left with no powers. But in the case of the President this was not necessary, because he being the competent authorit could utilise Article 69 of the late Constitution.
8. I have, therefore, reached the conclusion‑ that the President is the competent authority to alter, repeal or amend the laws and the machinery which is available to him for achieving this object is by means of promulgating necessary Ordinances.
9. From whatever angle the matter may be looked at, it seems plain to me that the President has the power to promulgate Ordinances. His consistent practice in promulgating Ordinance in such matters since October 1958, further' confirms this conclu sion. He could have easily' used the word "Order" instead of "Ordinance", but because his intention right from the beginning was to utilise the Ordinance‑making machinery provided for in the late Constitution, he did not consider it necessary to give any other name to these Ordinances.
10. There is one other matter which calls for some comments. Learned counsel for the petitioner has drawn our attention to Martial Law Regulation No. 72 which has been reproduced in the judgment of my brother Shabir Ahmad, J. On the basis of the provisions of this Regulation, the learned counsel for the petitioner has contended that the provisions of the Security of Pakistan Act, as amended up to the 29th of July 1959 (when this Regulation was made), had been incorporated in this Regulation; hence the provisions of that Act after the aforesaid date could not be altered. ,, repealed or amended except by a Martial Law Regulation. I think that the learned counsel has not appreciated the true meaning of the words "as if the provisions of the said Act as amended after the said day were for the time being incorporated in this Regulation."
What is meant by these words is that "anything done .shall be "deemed to be or to have been done under this Regu lation" with a view to give immunity to the provisions of the Act from challenge in any Court of law as provided for in paragraph (3) of the Regulation. This, however, does not mean that the Act itself has ceased to exist or that the Regulation has over ridden the power of the competent authority to alter, repeal or amend as provided for in Article 4 of the Laws (Continuance in Force) Order.
In my opinion, the competent authority continues to have the power to alter, repeal or amend this Act. The argument that the words "for the time being" connote that the provisions of the Act as amended up to the 29th July 1959 are immune from challenge, overlooks the fact that in legal parlance the words "for the time being" mean "from time to time." 1n Stroud's Judicial Dictionary, Volume 4, the meaning of the words "for the time being" is given as fallows :‑
"The phrase for the time being may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts, which will arise in the future, and Which may (and probably will) vary from time to time,"
Having regard to the context in which the words "for the time being" have been used in the Regulation it seems clear to me that they mean "from time to time."
I have, therefore, no hesitation in holding that the amend ments even if made after the 29th of July 1959 are excluded from judicial scrutiny.
11. The remaining points have been exhaustively dealt with by my brother Shabir Ahmad, J., and I have nothing more to add.
K. H.
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