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P L D 1963 Dacca 422

Before Murshed, Sattar and A. M. Sayem, JJ

LT.‑COL. G. L. BHATTACHARYA‑‑--Petitioner

versus

THE STATE‑---Respondent

Criminal Miscellaneous Case No. 76 of 1962, decided on 1st February 1963.

(a) Criminal Procedure Code (V of 1898),

S. 401‑Provincial Government's power to remit sentences‑May be exercised in respect of sentences passed by Special Military Court‑Such power not rendered inoperative by Martial Law Regulation (C. M. L. A's. No. 1‑A), cl. (b) or by Martial Low (Pending Proceedings and Protection) Order (26 of 1962), Ss. 5 & 6 or by Army Act (XXXIX of 1952), S. 143, or by S. 2 read with S. I (2), Military Court Sentences (Supplementary Provisions) Ordinance (LXXVIII of 1962)‑Maxim; Expressio unius est exclusio alterius.

The Martial Law Regulation (C. M. L. A's. No. 1‑A) read along with Martial Law (Pending Proceedings and Protection) Order, 1962 does not render the provision of section 401 of the Criminal Procedure Code, 1898 inoperative with regard to sentences pronounced by a Special Military Court.

The provisions of section 143 of the Army Act, 1952 are analogous to the provisions of section 401, Criminal Procedure Code, 1898. But the Martial Law Regulation incorporated only such provisions of the Army Act as relate to proceedings before a Special Military Court and not section 143 of the Army Act. Neither section 143 of the Army Act nor section 401 of the Criminal Procedure Code has anything to do with such proceedings and, therefore, it must be held that section 401 is not rendered inoperative by the aforesaid Martial Law Regulation.

Section 401 of the Criminal Procedure Code confers a mere discretionary power which may or may not be exercised at all. Section 5 of the Martial Law (Pending Proceedings and Protection) Order, 1962 deals with the manner and method by which the grievances of a petitioner may be disposed of. Section 401 of the Criminal Procedure Code deals with a different subject, namely, the power to show clemency, and the approach to it is also different. Furthermore, subsection (4) of section 6 of the Martial Law (Pending Proceedings and Protection) Order, 1962 excludes the operation of Chapter XXIX of the Criminal Procedure Code which contains section 401 with regard to a sentence of fine passed by a Martial Law Authority. But, under section 5, the said Order refrains from such exclusion of Chapter XXIX. It is, therefore, clear that, on the principle of expressio unius est exclusio alterius, Martial Law (Pending Proceedings and Protection) Order, 1962 read along with the aforesaid Martial Law Regulation does not exclude the operation of section 401 of the Criminal Procedure Code.

The Provincial Government had exercised powers under section 401 of the Criminal Procedure Code, 1898 after the 8th of June 1962, but long prior to the enactment of the Military Court Sentences (Supplementary Provisions) Ordinance of 1962 and merely because the said Ordinance has been given a retrospective effect by which it shall be deemed to have taken effect from the 8th day of June 1962, it will not have the effect of rendering nugatory a power exercised by the Provincial Government under section 401, notwithstanding the retrospective effect. Such a result cannot be spelt out of the express language of the said Ordinance nor it is the absolute requirement of its provisions. The said Ordinance invests the Commander‑in -Chief of the Pakistan Army with certain powers. Such powers can be exercised concurrently by two or more authorities. Article 18 of the Constitution (1962) and section 401 of the Criminal Procedure Code confer concurrent powers upon the President and the Provincial Government, respectively. There is thus no inherent difficulty in the concurrent exercise of such a power by several authorities.

The language of the Ordinance gives no warrant for coming to the conclusion that it must further operate so as to render nugatory a power which has been already exercised, namely, power of remission under section 401 of the Criminal Procedure Code. The powers conferred upon the Commander‑in‑Chief by the said Ordinance must have a retrospective effect because the Ordinance itself expressly says so. But, to give it a greater retrospective impli cation, not expressly given by the Ordinance, by holding that it had impliedly repealed retrospectively similar provisions in other statutes, is neither warranted by the express words of the Ordinance nor does such a result necessarily follow from the plain meaning of the provisions of the Ordinance.

Lauri v. Renad (1892) 3 Ch. 402 (421) ref.

(b) Criminal Procedure Code (V of 1898),

S. 401‑Provincial Government's power to remit sentences‑Power to cancel remission (locus poenitentiae)‑Cannot be exercised after order of remission "has been acted upon" irrespective of whether prisoner has been released or not‑Communication of order of remission to relevant authorities and noting down of same on history ticket of prisoner amounts to "acting upon" the order.

Held, that an order of remission of a sentence was acted upon in the sense that the Provincial Government had done everything that was necessary for it to do to give effect to the order. A right had already accrued upon the petitioner to claim the advantage given to him under the order, whatever may be the nature of such right, when the order was communicated to the relevant authorities and was recorded in the "history ticket" of the prisoner. The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore the subsequent order of cancellation can have legally no effect whatsoever.

Shahbaz v. The Crown P L D 1956 F C 46 and Venkatesh Yeshwant Despande v. Emperor A I R 1938 Nag. 513 considered.

(c) Sentence‑"

Remission " by way of clemency is not "reduction."

(d) Mistake‑

Whether can avoid a contract‑Doctrine of "mistake" explained‑[Cheshire and Fifoot : "Law of Contract" 4th Edn. p. 182 ; Kerr : "Fraud and Mistake" 7th Edn. p. 155 and Chitty : "Contracts" 21st Edn. Vol. 1, p. 227 ref.]

(e) Sentence ‑ Remission ‑

Sentence of 8 years rigorous imprisonment reduced to 4 years by President on ground of mercy Provincial Government subsequently remitting 4 years "out of sentence of 8 years' rigorous imprisonment"‑Reduction and remission operate to wipe out only 4 years out of 8 years in circumstances of case‑Criminal Procedure Code (V of 1898), S. 401.

(f) Martial Law

---‑Varities‑ Martial Law promulgated following a successful revolution‑Revolution of 7th October 1958 Validity of Martial Law Regulations or Orders with reference to period following cessation of revolutionary regime‑Constitution of Pakistan (1962), Arts. 225 & 250‑[Dicey's "Law of the Constitu tion," 9th Edn. pp. 287‑288; The Constitutional History of England" by Maitland pp. 281‑283; Emperor v. Chanappa Shantirappa I L R 55 Bom. 263; Muhammad Umar Khan v. The Crown P L D 1953 Lah. 528; The State v. Dosso and another P L D 1958 S C (Pak.) 533 and Kerr and Dawsons "Constitutional Law," 2nd Edn. ref.]

(g) Law‑Source

‑Force as source of law‑Revolution of 71h October 1958‑[The State v. Dosso and another P L D 1958 S C (Pak.) 533; Willoughby "Government of Modern States" pp. 118‑119; "Modern Constitutions" p. 75 and "Social Contract" by Rousseau ref.]

Hamidul lluq Choudhury, B. H. Chowdhury, A. H. Mirza and H. K. Chowdhury for Petitioner.

Md. N. Huda, Dy. Attorney‑General and A. W. Malik for the State.

Maksum‑ul‑Hakim, Advocate‑General, Mahbubur Rahman S. M. Abbas, Sultan Ahmad and Akram Hossain Amin for Respondents.

JUDGMENT

MURSHID, J.

‑This is an application under Article 98 (2) of the Constitution of Pakistan and section 491 of the Code of Criminal Procedure (hereinafter called the Code) for the issue of a writ or order in the nature of habeas corpus, directing that the petitioner, Gunindra Lal Bhattacharya, who is under detention in East Pakistan in pursuance of a sentence of rigorous imprison ment for eight years passed upon him by a Special Military Court in P. S. Case No. 7 of 1961, be set at liberty.

The petitioner was tried by the said Special Military Court under Martial Law Regulation No. 20, Arms Act, Control of Entry Act and Official Secrets Act and eventually, on the 11th of November 1961, he was sentenced by that Court to suffer rigorous imprisonment for the said period of eight years.

In April 1962, he submitted a review application to the President of Pakistan who was also the Chief Martial Law Administrator at that time. On the 20th of June 1962, a press note was issued to the effect that the President was pleased to reduce the sentence of rigorous imprisonment imposed upon the petitioner from eight years to four years. It appears that this reduction of the sentence passed upon the petitioner was com municated to the Government of East Pakistan. It has been stated on behalf of the respondents (and not denied by the petitioner) that the President had, in fact, passed the aforesaid order of reduction of the sentence prior to the 8th day of June 1962, that is, the day when the present Constitution came into effect. Subsequently, however, the Provincial Government by a resolution, being Resolution No. 681‑Judl. 1/2P‑62/62, dated the 26th of June 1962, remitted a portion of the aforesaid sentence passed upon the petitioner in the following terms:

"In exercise of powers conferred by section 401 of the Code of Criminal Procedure, 1898, the Governor is pleased to remit 4 years out of the sentence of 8 years' rigorous imprison ment passed upon Lieut.‑Colonel Gunindra Lal Bhattacharya by Special Military Court, Dacca in P. S. Case No. 7/1961 under Martial Law Zona C' Order No. 121 dated the 15th July 1961.

By order of the Governor,

(Sd.) M. H. Ali,

Secretary to the Government of

East Pakistan."

A Copy of the aforesaid resolution was forwarded for information to (1) the Deputy Commissioner of Dacca, (2) the Home Depart ment, Government of East Pakistan, Dacca and (3) the 1. G. P. (Inspector‑General of Prisons), East Pakistan, with a request that Lieut.‑Colonel Gunindra Lal Bhattacharya might be informed accordingly. Furthermore, a copy of the aforesaid resolution was forwarded to the Superintendent, Dacca Central Jail (where the petitioner is under detention) for information and necessary action and communication to the prisoner. The petitioner was apprised of this communication which was duly recorded in the "history ticket" of the petitioner maintained at the Dacca Central Jail.

Upon the aforesaid facts the petitioner has based the present petition and his contention, in substance, is, that both the President and the Government of East Pakistan have awarded separate and independent remissions of four years out of the sentence that was pronounced upon him as aforesaid. His contention, further, is that between the President and the Provincial Government a remission of eight years having been granted to him, and the entire sentence so inflicted upon him being wiped out, he has nothing further to serve. He has, there fore, submitted that he is entitled to be released from detention in jail.

On petitioner's application a rule nisi was issued by this Court calling upon the respondents to show cause as to why the petitioner should not be brought before this Court to be dealt with according to law and/or set at liberty.

At the hearing of the rule it was urged before us, on behalf of the petitioner, that the President of Pakistan, under Article 18 of the present Constitution or by virtue of a Presidential Order as well as the Provincial Government, under the provisions of section 401 of the Code, had the power to grant concurrently remissions with regard to the sentence passed on the petitioner. It was contended that the President having reduced the aforesaid sentence to four years and the Provincial Government having granted thereafter a remission of four years, the entire sentence passed upon the petitioner was thus remitted. It was, therefore, submitted that the petitioner was entitled to be set at liberty on this ground alone. In the alternative, it was vigorously argued that, in any event, upon the promulgation of the present Constitution on the 8th day of June 1962, the Martial Law Regulation under which the petitioner was tried and sentenced to suffer the aforesaid period of imprisonment, must be held to be no law, and as such, it should be further held that the said sentence imposed upon the petitioner was also illegal inasmuch as the law under which it was pretended to have been awarded had never existed as "law".

On behalf of the respondents two afii4avits have been filed in this Court, one by a Section Officer of the Law (Judicial) Department of the Government of East Pakistan, and another by the Secretary of that Department. The sum and substance of the affidavits is that by a message in cypher Code the Provincial Government received a communication, dated the 20th of June 1962, to the effect that the President was pleased to reduce the sentence of eight years' rigorous imprisonment passed upon the petitioner to a period of four years, asking the Secretary, Law (Judicial) Department to inform the petitioner accordingly. The said message gave rise ‑to some misconception with regard to the legal efficacy of the communication, with the result that, with a view to give effect to the order of the President, mentioned above, the Provincial Government passed a resolution by virtue of its powers under section 401 of the Code giving a remission to the petitioner in terms which have been fully set out above. The President's order, as stated above, was not initially com municated to the petitioner, but, instead, the aforesaid resolution of the Provincial Government under the said section 401 was forwarded to him because, as one gathers from the said affidavits, the above‑mentioned resolution was intended to be a paraphrase in legally efficacious terms of the President's order. The gist of the affidavits, filed on behalf of the respondents (and argued by the learned Advocate‑General) is, that, on a miscon ception as to the legal position with regard to the order passed by the President, the Provincial Government misled itself into making the aforesaid order of remission. It is further submitted on behalf of the respondents that, by virtue of the President's Order No. 26 of 1962, as also because of various Martial Law Regulations, the Provincial Government had, and has now no power under the said section 401 of the Code to grant any remission with regard to a sentence passed by a Special Military Court. In the aforesaid affidavits it has also been further stated that the Provincial Government having realised the import of the mistake that had been committed proceeded to cancel the prior resolution on the 3rd of September 1962, in the following terms:

"The Governor is pleased to cancel this Department Reso lution No. 681‑Judl. I/2P‑62/62 dated 26th June 1961".

The said order of cancellation was communicated to the petitioner. An intimation was also sent to the said Superintendent, Dacca Central Jail, to the effect that the President had reduced the sentence of the petitioner from eight years to four years and that the Provincial Government had, in fact, granted no such remission.

The fist point that was urged on behalf of the respondents before us is, that, in the circumstances stated above, the Pro vincial Government had no power to grant remission under section 401 of the Code, in respect of a sentence passed by a Special Military Court which had tried the petitioner. Learned ‑Advocate‑General drew our attention to the Proclamation of the 7th of October 1958, by which the late Constitution of 1956 was abrogated and Martial Law was imposed upon Pakistan, and thereafter cited the President's Order (Post‑Proclamation) No. I of 1958, which is called the Laws (Continuance in Force) Order, 1958, under which, all Martial Law Regulations had been promulgated. He then read out the following provisions of the Martial Law Regulations promulgated by the Chief Martial Law Administrator on the 7th of October 1958:

"Part I

No. 1

The whole of PAKISTAN will be considered as the Martial Law Area.

(a) The Martial Law area will be divided into the following Zones: --‑

(i) Zone A‑KARACHI Federal Area including MALIR.

(ii) Zone B‑Whole of West PAKISTAN less Zone A,

(iii) Zone C‑Whole of East PAKISTAN.

(b) The following Commanders of the Pak Military Forces are hereby appointed as Administrators of Martial Law in their respective Zones :‑

(i) Zone A‑Major General MALIK SHER BAHADUR.

(ii) Zone B‑Lieut. General MOHAMMAD AZAM KHAN.

(iii) Zone C‑Major General MOHD. UMRAO KHAN.

(c) Orders under these Regulations and additional Regula tions hereinafter known as Martial Law Orders and Martial Law Regulations may be issued by me or by any Administrator or by any officer authorised by mP.

No. 1‑A

(a) Special Courts.‑Special Courts of criminal jurisdiction shall be of the following classes :‑

(i) Special Military Courts.

(ii) Summary Military Courts.

Special Military and Summary Courts shall have the power to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary law.

The Criminal Courts as by law established shall have power to try and punish any person for offences under the ordinary law and for contraventions of Martial Law Regulations or Orders.

(b) Special Military Courts.‑An Administrator of Martial Law may convene Special Military Courts in his area of administration for the trial of any offence committed in any area to which these Regulations extend: provided that the term ordinary law as above‑mentioned shall in each case be held to include the provisions of any special law for the time being in force in that area.

Subject to the provisions of these Regulations a Special Military Court shall be constituted in the same manner, and shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and of the rules made there under shall apply to, and govern all such proceedings:

Provided that :‑

(i) Any person exercising the power of a Magistrate of the first class or of a Sessions Judge may be ‑appointed a member of the Court;

(ii) The Court may pass any sentence authorised by law or by these Regulations;

(iii) All sentences of death shall be reserved for confirmation by an appointed Administrator of Martial Law, irrespective of his rank.

The aforesaid Martial Law Regulation has provided that a Special Military Court "shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and of the rules made there under shall apply to, and govern all such proceedings." (The italicized has been done by us). It is, therefore, evident that the aforesaid Martial Law Regulation did not incorporate the entire Pakistan Army Act, 1952 (herein after called the Army Act) but only such provisions which relate to procedure of a trial in a Field General Court Martial and is confined to the proceedings before that Court and no more.

Learned Advocate‑General drew our attention to sections 80 to 89 of the Army Act, which relate to the constitution, jurisdiction and powers of Courts Martial. It is thus clear that the aforesaid sections in Chapter IX of the Army Act were incorporated into the said Martial Law Regulations and would apply to the pro ceedings before a Special Military Court. He also drew our attention to various other provisions of the Army Act in this behalf. He has, however, failed to substantiate that section 143 of the Army Act is applicable to a sentence passed by the said Special Military Court by virtue of the provisions of the aforesaid Martial Law Regulations, his contention on this point being that inasmuch as a special provision has been made in the Army Act with regard to matters provided for in section 401 of the Code, the general provisions of the Code will be inoperative and must give way to the special provisions, namely, of section 143 of the Army Act. But, section 143 of the Army Act has not been incorporated by the Martial Law Regulations with which we have to deal here. It would, however, be useful to quote the two sections upon which this point is based. Section 401 of the Code, in so far as it is material for the purpose of this case, may be quoted as follows: --‑

"401 (1) When any person has been sentenced to punishment for an offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

Section 143 of the Army Act reads as follows: ---

143. Pardons and remissions.‑(1) when any person subject to this Act has been convicted by a Court Martial of any offence, the Central Government or the Commander‑in‑Chief or any officer not below the rank of brigadier empowered in this behalf by the Commander‑in‑Chief may‑

(i) either without conditions or upon any conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or

(ii) mitigate the punishment awarded or commute such punishment for any less punishment or punishments mentioned in this Act:

Provided that a sentence of transportation shall not be commuted for a sentence of rigorous imprisonment for a term exceeding the term of transportation awarded by the Court, and a sentence of rigorous imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of rigorous imprisonment awarded by the Court.

(2) If any condition on which a person has been pardoned or a punishment has been remitted is, in the opinion of the authority which granted the pardon or remitted the punishment, not fulfilled, such authority may cancel the pardon or remission, and thereupon the sentence of the Court shall be carried into effect as if such pardon had not been granted or such punish ment had not been remitted:

Provided that, in the case of a person sentenced to trans portation, rigorous imprisonment, or detention, such person shall undergo only the un-expired portion of his sentence.

It will be seen that section 401 of the Code empowers the Provincial Government to grant remission with regard to any sentence that has been awarded to a person within the jurisdiction of the said Government. The word used is "sentence" simpliciter and is not, therefore, confined to a sentence passed by a Court in accordance with the provisions of the Code. Learned Advocate- General drew our attention to the definition of "Court" as given in section 6 of the Code which includes within the said term "Courts constituted under any law other than this Code." It is clear that even a Special Military Court is a Court within the meaning of section 6 of the Code. However, this point is irrelevant by virtue of the fact, as noted above, that the word used in section 401 of the Code is "sentence" simpliciter It would have been, perhaps, possible for him to contend with reference to section 143 of the Army Act that sentences pro nounced under that Act would exclude from the operation of section 401 of the Code such sentences on the ground that when the Army Act has with meticulous care provided a complete procedural Code with regard to trial and sentences passed by a Court Martial, by necessary implication it excludes the general provisions of the Code. In fact, section 5 (2) of the Code specifically provides that its provisions will give way to any other special law with regard to the investigation and trial of an offence as also matters relating thereto.

The provisions of section 143 of the Army Act are analogous to the provisions of the said section 401. But in the present case the Martial Law Regulation to which our attention was drawn had incorporated only such provisions of the Army Act as relate to proceedings before a Special Military Court and not section 143 B of the said Army Act. Neither section 143 of the Army Act nor section 401 of the Code has anything to do with such proceedings and, therefore, it must be held that section 401 is not rendered inoperative by the aforesaid Martial Law Regulation. The learned Advocate‑General conceded that section 143 of the Army Act was not incorporated by the said Regulation and proceeded to draw our attention to President's Order No. 26 of 1962. He quoted the provisions of sections 5 and 6 of that Order published on the 6th of June 1962, as follows

"5. Annulment and commutation.‑(1) Any person who deems himself aggrieved by the finding or sentence of a Martial Law Authority may, where no petition has been submitted against such finding or sentence, submit a petition against such finding or sentence to the Commander‑in‑Chief, Pakistan Army, if the sentence is one of rigorous imprisonment for a term of not less than seven years, and in all other cases, to Commander of Corps No. 1 of the Pakistan Army known technically as Commander 1 Corps, if the case relates to the Province of West Pakistan, or to the Commander of the 14th Division of the Pakistan Army, known technically as the Commander 14 Division, if the case relates , to the Province of East Pakistan.

(2) On such a petition, the aforesaid authorities may, with or without any conditions, grant pardon or remit, reduce, commute or suspend any sentence.

6. Execution and continuance of Martial 'Law sentences. (1) Subject to the provisions of this Order, all sentences passed during the Martial Law period by a Martial Law Authority shall be deemed to have been lawfully passed and shall be carried into execution according to their tenor.

(2) Every sentence of death passed during the Martial Law period by a Martial Law Authority, which was not executed during the Martial Law period, may be executed under the order of the Central Government.

(3) Every sentence of imprisonment passed during the Martial Law period by a Martial Law Authority, which was

not put into execution during the Martial Law period, may be put into execution under the warrant of the District Magistrate of the District in which the person under sentence may be found ; and every such sentence shall commence to run on the date on which the person under sentence is received into the prison to which he is committed by such warrant.

(4) Every sentence of fine passed during the Martial Law period by a Martial Law Authority, which was not carried out during the Martial Law period, may be carried out by the District Magistrate of the District in which the person under sentence resides, as if it were a sentence of fine imposed by him under the Code of Criminal Procedure, 1898 (Act V of 1898), provided that the provisions of Chapter XXIX of the aforesaid Code shall not apply to any such sentence."

It is clear that the aforesaid section 5 provides for relief which can be obtained by an aggrieved person against the finding and sentence pronounced against him. It gives a remedy to such aggrieved person, who can submit an application to the autho rities mentioned in this section. It is upon such application that the said authorities could give various reliefs which include the power of pardon, remission, reduction, commutation or suspension of any sentence. Under this section the finding of the Special Military Court can be challenged. Section 5 does not correspond to section 401 of the Code which has nothing to do with the propriety and legality of a finding arrived at by a Court or with the legality or propriety of the sentence that is pronounced by it. Under section 5 of the aforesaid Order the relevant authorities mentioned therein can exercise the power given to them only upon a petition submitted to them by such aggrieved persons, but, section 401 of the Code simply confers a power to show clemency and to grant remission or suspension of the execution of sentences in appropriate cases, irrespective of their legality and/or propriety. This power can be exercised suo motu even when it is thought that the sentence in a particular case is legal and proper. Under section 5 an aggrieved person has a right to demand a consideration of his petition which may be directed towards the finding which has been arrived at Similarly, the sentence can also be impeached'. It imposes a corresponding obligation upon the relevant authority to dispose of the petition addressed to him upon a consideration of the points raised in the petition. Section 401 of the Code confers a mere discretionary power which may or may no be exercised at all. Section 5 of the above‑mentioned Order deals with the manner and method by which the grievances of a petitioner may he disposed of. Section 401 of the Code deals with a different subject, namely, the power to show clemency, and the approach 1C to it is also different.

Furthermore, it is interesting to note that subsection (4) of section 6 of the President's Order No. 26 of 1962 express excludes the operation of Chapter XXIX of the Code which contains section 401 with regard to a sentence of fine passed by a Martial Law Authority. But, under section 5, the said Order refrains from such exclusion of Chapter XXIX. It is, therefore, clear that, on the principle of expressio unius est exclusio alterius, President's Order No. 26 of 1962 read along with the aforesaid. Martial Law Regulation does not exclude the operation of section 401 of the Code.

Section 5 of the Order No. 26 of 1962 is similar to section 124 of the Army Act which gives power, inter alia, to the confirming authority to mitigate or commute sentences. It reads as follows:

"Subject to such restrictions, reservations or conditions, as may be contained in any warrant issued under section 120 or section 121, a confirming officer may, when confirming the sentence of a Court Martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any less punishment or punishments to which the offender might have been sentenced by Court Martial or if that punishment is death or transportation for life, for any less punishment or punish ments mentioned in this Act:

Provided that a sentence shall not be commuted for a sentence of transportation or fine unless the original sentence was awarded in respect of a civil offence:

Provided further that a sentence of transportation shall not be commuted for a sentence of rigorous imprisonment for a term exceeding the term of transportation awarded by the Court."

We have already noted above that a power Corresponding to that conferred by section 401 of the Code is provided in section 143, of the Army Act as quoted above. Can it be argued that even under the Army Act the specific power given to the confirming authority under section 124 overrides the general power conferred by section 143 of the Army Act It is obvious that such a result will not ensue inasmuch as section 124 relates to the powers of the confirming authority when called upon to confirm a sentence. Section 143 of the Army Act confers simpliciter a power to show clemency and is not dependent upon any grievance made to the relevant authority. We, therefore, hold that the aforesaid Martial Law Regulation read along with President's Order No. 26 of 1962 does not render the provision of section 401 of the Code inoperative with regard to sentences pronounced by a Special Military Court. We have been taken through Regulation No. 61, but it has not the effect of overriding the provisions of the said section 401.

The next question is has Ordinance LXXVIII of 1962, which is called Military Court Sentences (Supplementary Provisions) Ordinance, 1962, passed on the 21st of October 1962, succeeded in ousting the power of the Provincial Government to act under section 401 of the Code It will be seen that the aforesaid Ordinance was brought into existence on the 22nd of October 1962, i.e., after the present Constitution had come into force and also after the aforesaid order of remission was passed by the Provincial Government under section 401 of the Code. Section 2 of the said Ordinance is the material section for the purpose of this case and it reads as follows:

"2. Pardons, remission, etc. of sentences passed by Military Courts.‑(1) Notwithstanding anything contained in any other law for the time being in force, the Commander‑in‑Chief of the . Pakistan Army may‑

(a) either with or without any condition pardon any person convicted of an offence by any Special or other Military Court or any other Martial Law Authority constituted under any Martial Law Regulation or Martial Law Order, or remit, reduce, commute or suspend any sentence passed on him by any such Court or Authority ; and

(b) revoke or set aside any order, suspending any such sentence made either by him under clause (a), or by any other Martial Law Authority including the Chief Martial Law Authority before the commencement of this Ordinance, and may put into execution any sentence the suspension ‑of which has been so revoked or set aside.

(2) Any order made by the Commander‑in‑Chief of the Pakistan Army before the commencement of this Ordinance which would have been competent to him under subsection (1) shall be valid as if this Ordinance had been in force at the time when the order was made."

The aforesaid section 2 corresponds to the provisions of section 143 of the Army Act and also to section 401 of the Code. It further specifically confers a power of revocation of an order passed under it.

Our attention was drawn to the fact that retrospective effect was given to Ordinance LXXVIII of 1962 by section 1 (2) in the following terms

"It shall come into force at once, and shall be deemed to have taken effect as from the 8th day of June 1962."

The fact that it has been given such retrospective effect cannot operate so as to wipe out a right which has already accrued or to render nugatory a power which has been otherwise validly exercised, without express words or an irresistible implication to that effect. The fact that a retrospective effect has been given to a statute cannot be construed, in the absence of express words or necessary implication to that effect, so as to give to it a retrospective operation beyond that which is necessary to give effect to its expressed and specified provisions. In the absence of express words or imperative implication to that effect, a retrospective legislation does not operate to wipe out existing rights, transactions done and concluded or powers which have been already otherwise validly exercised. It is well‑settled that no greater effect should be given to a retrospective enactment than that which is absolutely necessary for giving effect to the expressed intention of the enactment. This principle has been stated by Lindlay, L. J. in Lauri v. Renad ((1892) 3 Ch. 402 (421)) as follows:

"It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary."

The aforesaid dictum has also received the concurrence of Lord Justice Bowen. It is, therefore, clear that a retrospective enactment will not be so construed as to take away vested rights or to undo transactions which have been concluded or powers which have been exercised, unless from the language of the statute such a meaning is inescapable.

The Provincial Government had exercised powers under section 401 of the Code after the 8th of June 1962, but long prior to the enactment of Ordinance LXXVIII of 1962 and merely because the said Ordinance has been given a retrospective effect by which it shall be deemed to have taken effect from the 8th day of June 1962, it will not have the effect of rendering nugatory a power exercised by the Provincial Government under section 401, notwithstanding the retrospective effect. Such a result cannot be spelt out of the express language of the said Ordinance nor it is the absolute requirement of its provisions. The said Ordinance invests the Commander‑in‑Chief of the Pakistan Army with certain powers. Such powers can be exercised concurrently by two or more authorities and, as a matter of fact, Article 18 of the present Constitution and section 401 of the Code confer concurrent powers upon the President and the Provincial Government, respectively. There is thus no inherent difficulty in the concurrent exercise of such a power by several authorities .R The exercise of powers exercisable by the Commander‑in‑Chief under the said Ordinance will take effect from the date to which the Ordinance itself has been related back retrospectively. In a particular case if it happens that such powers were, in fact, exer cised by the Commander‑in‑Chief on or about the 8th day of June 1962, it would become valid under the said Ordinance LXXVIII of 1962 by virtue of its retrospective operation from the 8th of June 1962, notwithstanding the fact that the Ordinance itself was passed on the 21st of October 1962. This is the obvious result of the retrospective effect which has been given to the Ordinance. Nothing more is necessary to give effect to the provisions of the said Ordinance in accordance with its express terms. The language of the Ordinance gives no warrant for coming to the conclusion that it must further operate so as to render nugatory a power which has been already exercised, namely, power of remission under section 401 of the Code. The powers conferred upon the Commander‑in‑Chief by the said Ordinance must have a retrospective effect because the Ordinance itself expressly says so. But, to give it a greater retrospective implication, not expressly given by the Ordinance, by holding that it had impliedly repealed retrospectively similar provisions in other statutes, is neither warranted by the express words of the Ordinance nor does such a result necessarily follow from the plain meaning of the provisions of the Ordinance. We, therefore, cannot hold that, because of the retroactive action of Ordinance LXXVIII of 1962, the resolution passed under section 401 of the Code granting remission to the petitioner would be invalid in law. This is a complete answer to the point raised by the learned Advocate‑General with regard to the provisions of Ordinance LXXV III of 1962.

We may, in passing, mention that in the light of the provisions of the present Constitution, Ordinance LXXVIII of 1962 has expired inasmuch as under the provisions of Article 29(6) of the present Constitution the prescribed period for the duration of such an Ordinance is forty‑two days after the first meeting of the National Assembly following the promulgation of the Ordinance. We are informed that the Ordinance has not been passed by the National Assembly which met some time in November 1962. Learned Advocate‑General has thus failed to establish that the Provincial Government had no power to pass the aforesaid resolution by which it purported to remit a portion of the sentence pronounced on the petitioner at the time when such remission was granted.

It was next argued by the learned Advocate‑General that inasmuch as the resolution by which the Provincial Government granted remission of the sentence was itself cancelled, the petitioner could no longer claim the benefit of such remission. He has argued that the power to grant remission under the said section 401 postulates the power to rescind and cancel any remission so granted. He has, therefore, urged that inasmuch as the Provincial Government has cancelled the order of revision so granted, the petitioner cannot avail himself of the said remission. In support of this argument he has relied upon a decision of the Federal Court of Pakistan in the case of Shahbaz v. The Crown (P L D 1956 F C 46). In the aforesaid case the appellant Shahbaz was convicted on a charge of murder and sentenced to death in February 1953. On appeal the High Court of Lahore maintained the conviction but reduced the sentence to one of transportation for life. Thereafter towards the end of 1953 the brother of the appellant moved the Government of the Punjab for remission of the sentence passed on the appellant. In August 1954, the Provincial Government by an order granted a remission of such portion of the sentence imposed upon the appellant as would be un-served on the 14th of August. There was a further direction that the order would take effect from the said date in August. On the 13th of August, before the order came into force the Provincial Government cancelled its previous order granting the remission as stated above. In the context of the above‑mentioned facts it was argued before the Federal Court that the Provincial Government did not have the power to cancel an order which was already passed under section 401 and reliance was placed upon the case of Venkatesh Yeshwant Despande v. Emperor (A I R 1938 Nag. 513), where a similar order was passed which would entitle the prisoner to be released on a particular date. An officer of the Law Department of the Government of Nagpur directed the Jailor not to release the prisoner after the date on which the prisoner was to have been released. It appears that the Nagpur Full Bench considered it to be doubtful as to whether there can ‑ be any power to cancel an order passed under section 401 except as provided by that section. It, however, proceeded to say that even if there was such a power of cancella tion, the Nagpur Government had no locus poenitentiae to do so inasmuch as the order was acted upon and, in fact, a decisive step bad been taken in respect of the order. It was said that the order as passed was addressed to the Superintendent of the Jail where the prisoner was detained and that the order was entered in the "history ticket" of the prisoner. In these circumstances, it was held that the locus poenitentiae had expired even if it were conceded that the Provincial Government had power to cancel the order in question. It was further pointed out that the order under the said section 401 was acted upon even to the extent of informing the member of the Legislature that the Govern ment had passed such an order under section 401 in respect of the prisoner. In the case of Shahbaz before the Federal Court of Pakistan (P L D 1956 F C 46), the facts, as we have noticed above, are singularly peculiar to the case itself. It does not appear whether the order passed by the Government of the Punjab was acted upon to the extent that it had been recorded in the "history ticket" of the prisoner. The Federal Court of Pakistan did not dissent from the decision of the Full Bench of Nagpur A I R 1938 Nag. 513. It tacitly, on the other hand, approved of the decision on this point by proceeding to distinguish that case from the case which was before the Federal Court. In deciding that the order of cancellation passed in the case of Shahbaz was valid, it did not base its decision on clause 21 of the General Clauses Act, but held that such a power of cancellation was inherent in the power itself. The Federal Court further observed that tile power of cancellation could not be exercised after the locus poenitentiae was lost. The decisive factor in that was that the order was ineffective until the 14th of August which was the appointed date for the release of the prisoner and, furthermore, that no right was conferred upon the prisoner to claim remission until that date, namely, the 14th of August. The ratio decidendi of that case may be summed up in the following observation of Shahabuddin, J. who delivered the judgment of the Court:

"Mr. Mahmud Ali's contention that it is not appropriate to speak of a locus poenitentiae in the case of Government is not supported by the very decision on which he relies, where it was observed that there might be a locus poenitentiae in such a case, but that it was at an end when the order of cancellation was passed in that case. Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel." (The italicized has been done by us).

It would be clear that the case of Shahbaz (P L D 1956 F C 46) does not support the contention of the learned Advocate‑General that the Provincial Government can cancel an order of remission passed under the said section 401 until the prisoner has been actually released in accordance with the remission so granted. On this point his argument is that until the prisoner is, in fact, released there is a locus poenitentiae to cancel an order of remission. We think that neither the case in A I R 1938 Nag. 513, nor the case of Shahbaz P L D 1956 F C 46 supports that proposition. In the Nagpur case it will be noticed that, in fact, the prisoner was not released when he applied to Court for an order in the nature of habeas corpus under section 491 of the C ode. All that was done in the Nagpur cases was that the order as passed by: the Provincial Government was communicated to the Jail Authorities and was entered in the "history ticket" maintained by the jail authorities. Thus a decisive step was taken in implementation of the order passed by the Provincial Government. The order was acted upon in the sense that the same was communicated to the relevant authorities who, in their turn, recorded the order in the "history ticket" of the prisoner. In the case of Shahbaz we have already pointed out that it does not appear that such a step was taken. In any event, implicit in the order that was passed was the fact that it could operate only from a future date, that is, the 14th of August. The order itself was an inchoate order in the sense that it could not have any efficacy before the appointed date and no decisive step could be taken until that date. Upon this it was held that the Government of the Punjab had not lost the locus poenitentiae to retrace the step taken by it by way of cancellation of the order of remission so passed. The important thing to remember is that both the Federal Court of Pakistan as well as the Nagpur Full Bench have laid down that in such a case there could be no locus poenitentiae after a decisive step has been taken with regard to an order passed under the said section 401. In the case before us the order as passed was communicated to the Deputy Commissioner, Dacca; the Home (Poll.) Department, East Pakistan; the Inspector‑General of Prisons, East Pakistan, the Superintendent of Dacca Central Jail and the petitioner himself. 'File or:.‑was also recorded in the history ticket' which the Jail Authorities had maintained in respect of the prisoner. Thus a right was conferred upon the petitioner by virtue of the order of remission granted by the Provincial Government. There can be no manner of doubt that a decisive step' had been taken with regard to the order of remission given under section 401 conferring upon the petitioner the right to claim benefit under it. The learned Advocate‑General has said that the order was not acted upon in the sense that the petitioner was, in fact, not released. Whether the petitioner was actually released is immaterial; the important consideration is that the petitioner had acquired a right to claim the benefit of the remission granted by the Provincial Government. This is unlike the facts of Shahbaz's case where no right was conferred until a future date. Till that date arrived no right could be acquired by the prisoner. In the present case it is clear that the order was acted upon in the sense that the Provincial Government had done everything that was necessary for it to do to give effect to the order. A right has already accrued upon the petitioner to claim the advantage given to him under the said order, whatever may be the nature of such right, when the order was communicated to the relevant authorities and was recorded in the history ticket of the petitioner. It is patent that the criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. It, therefore, follows that the subsequent order of cancellation dated the 3rd of September 1962, can have legally no effect whatsoever.

It was next contended, on behalf of the respondent, that the order was passed by a mistake committed by the Provincial Government with regard to the legal effect of the order passed by the President with a direction that the said order be communicated to the petitioner. Our attention was drawn to the fact that the President's Order was passed before the present Constitution of Pakistan came into effect. It is true that this might easily mislead one into thinking that no separate and distinct legal instrument existed which directly authorised the President to pass the said order. The provisions of Article 18 of the present Constitution which specifically authorises the President to pass such an order of remission was not available at that time. How ever, the actual position in law is that the said order passed by the President owes its efficacy to the order itself. The Proclamation by the President on the 7th of October 1958, and the President's Post‑Proclamation Order No. 1 of 1958 promulgated on the 10th of October 1958, had conferred upon the President and the Chief Martial Law Administrator the power to pass such an order which will be treated as fundamental law. In these circumstances, one need not take a very serious view of the error committed by the Law (Judicial) Department of the Government of East Pakistan. Anybody could make the slip and commit an error of that kind. It is understandable that such an error was inadvertently com mitted. In fact, the message by which the said President's Order was communicated to the Provincial Government does not seem to be happily worded. When it said that the sentence was reduced to four years on ground of mercy, it, probably, meant that out of eight years, a remission of four years was granted. There is a distinction between reduction and remission of a sentence. But, the petitioner is entitled to an advantage of four G years, no matter whether there was a reduction or remission of the sentence passed on him.

In support of the argument that a mistake would vitiate an order, the learned Advocate‑General has again relied upon the decision of the Nagpur Full Bench case, namely, the case of Venkatesh Yeshwart Deshpande v. Emperor. In that case it was held that the order passed by the Provincial Government was conclusive and must have its effect. In giving this decision it was observed, by way of obiter, that fraud and mistake' may give rise to other considerations. 'Fraud' is a totally different matter and no case of fraud has either been alleged or made out before us, but the Nagpur Full Bench case A I R 1938 Nag. 513 is no authority for the proposition that any kind of 'mistake' would vitiate an order under the said section 401. There is no general proposition in law that mistake would vitiate an order such as the one that has been passed under section 401.

The doctrine of 'mistake' is a very illusive branch of law and the word bears a most restricted meaning in law. Lawyers have never used the term in the sense as it is understood popularly. This branch of law has its widest application in the law of contract and is dependent upon the very nature of contract with regard to its formation and its object. In the Law of t Contract also 'mistake' as such has not been, by itself, recognised as a good ground for avoiding a contract. The decisions rest on the grounds that there was, in fact, no consent, that the subject‑matter of the contract never existed, or that no real contract was made. Even in the Law of Contra ct 'mistake' as to the motive which leads one person to enter into a contract is not available against the other party to the contract who is unaware of the mistake. An examination of a large number of cases has led Cheshire and Fifoot to sum up the law in the following terms, which occur at page 182 of the 4th Ed. of Cheshire and Fifoot on "The Law of Contract": --‑

"It would seem, therefore, that at common law a contract is not void merely because the parties have made the same mistake, however, fundamental; in other words, that the common law recognizes no doctrine of common mistake as such. A contract will be void only if there is nothing to contract about, either because the subject‑matter does not exist at the time of the agreement or because the object of the purported sale already belongs‑ to the buyer; and the ground of such a nullity is not the mistake but the absence of a res. The agree ment is void of all content." (The italicized has been done by us),

In fact, as we have already stated above, in all the canes where mistake has operated to avoid a contract the ground upon which such avoidance has been effected was, in reality, something other than what is popularly understood as mistake. But apart from the law of contract the doctrine of mistake, whenever available as a defence, is restricted only to one point, namely, where it can be shown that the order made or the act done was in fact, never made or done. For instance, suppose that the Provincial Government in the exercise of its powers under the' said section 401, while considering the sentence of six month's passed on A and B, had decided to remit the whole of the sentence passed on A only and had recorded an order to that effect, without granting any remission to B and suppose again, that, through inadvertence, while communicating the order it was stated that B had been granted such a remission, any claim by B that he was entitled to be released could be resisted on the ground that, in fact, no remission was granted to B and that the remission was actually granted to A. There was a mistake in communi cating the order as passed. Such a defence could be set up against B on the ground that, in reality, no order was made in favour of B. Then again, suppose that in a particular case C was convicted and sentenced to suffer rigorous imprisonment for six months and that, thereupon, the Provincial Government suspended the execution of the sentence so passed on C for a period of six months. If in communicating the order of suspension, by mistake it is stated that six months' remission has been granted to C, any claim made by C based upon such supposed remission could possibly, be resisted by showing that, in fact, no remission was granted, but only a suspension of the execution of the sentence was all that was ordered. Here again, in the case we have just mentioned, the basic fact is, that, in truth, no remission was ever granted to C. However, the case before us cannot strictly be described as a case of mistake' at all. It is admitted that the Provincial Government purported to act and, in fact, did act in exercise of its powers under the said section 401. It is also admitted that the order was communicated to various authorities, including the Superintendent of the Dacca Central Jail. It is also admitted that, upon such com munication, the order was recorded in the history ticket' of the prisoner. It is not the case of the Provincial Government that it did not pass any order under the said section 401. It is said, on its behalf, that through a mistaken view as to the legal position in respect of the order passed by the President, it passed an order under section 401 in order to give effect to the President's Order. The position boils down to this that a mistaken view of the law constituted the motive which impelled the said Provincial Government to pass the order. It is well -settled that a mistake relating to the motive which leads one to do an act which is otherwise valid is never a defence which cant avoid the legal effect of such an action. The law on this subject is summed up in Kerr on "Fraud and Mistake", 7th Ed., at p. 155 as follows: ----

"When a party is mistaken in his motive for entering into a contract, or in his expectations respecting it, such mistake does not affect the validity of the contract, unless he informs the vendor of his object in buying. If a man purchases a specific article, believing that it will answer a particular purpose to which he intends to put it, and it fails to do so, he is not the less on that account bound to pay for it. A mistake by the buyer in supposing that the article bought by him will answer a certain purpose for which it turns out to be unavailable is not a mistake as to the subject‑matter of the contract, but is only a mistake as to a collateral fact, and affords him no ground for pretending that he did not assent to the bargain whatever may be his right afterwards to rescind, if the vendor warranted its adaptability to the intended purpose. His mistake, unless induced by the seller, is immaterial to the validity of the contract . . "

With regard to a mistake of motive the law as has been summed up by Chitty on Contracts, 21st Ed., Vol. 1, at p. 227, thus:

"Prima facie mistake has no effect on contract. I buy a ring mistakenly thinking it is a gold ring, and nothing is said by the vendor as to the quality of the ring, though he may know that I think the ring is of gold. I cannot repudiate the contract on account of my mistake."

In the case before us, as we have seen above, the respondents cannot say that the Provincial Government did not pass the order, The said Government consciously passed the order as made and took the step of faithfully communicating the order to relevant authorities. Where is then the mistake The mistake as stated in the affidavits is a mistaken view of law which motivated the action of the Provincial Government. We do not think that such a mistaken view with regard to the law relating to the order of the President can operate to nullify the order that was, in fact, made. The mistake as to the law on the subject is a collateral mistake and will not render the order void on that ground. It has been argued that such an error of judgment is excusable. This may be true, and we have ourselves taken the view that a slip of that kind could be easily made by anybody. But this fact cannot have the effect of nullifying the order that has been conscious passed. As we shall see hereafter that the Provincial Govern ment, in spite of the circuitous path it had followed, .has no given the' prisoner any more remission than what has been given by the President. But, this is altogether a different question.

Having thus held that the aforesaid order of the Provincial Government granting remission in respect of the sentence passed on the prisoner was a valid order, having also held that the subsequent order of cancellation dated 3‑9‑1962 was ineffective and inoperative, and having further held that the respondents have not succeeded in making out a case of such a mistake as would nullify the order passed by it, it remains for us to consider the implication and effect of the two orders, namely, the order passed by the President of Pakistan reducing the sentence passed upon the petitioner from 8 years to four years and the subsequent order passed by the Provincial Government remitting such sentence to the extent of four years out of 8 years. Mr. Hamidul Huq Choudury has argued that the entire sentence of the prisoner has been wiped out. The President of Pakistan having specifically reduced the said sentence to four years and the Provincial Government having granted a further remission of four years, it was urged that nothing remained for the petitioner to serve. But, is that so The argument is ingenious, but, will it bear the test of scrutiny We will therefore, proceed to consider the two concurrent orders passed separately and to give effect to both of them in accordance with the specific terms in which each of them has been passed. It is the petitioner's case that the President of Pakistan and the Provincial Government of East Pakistan have each passed a separate and distinct order of remission.

Mr. Hamidul Huq Choudhury has argued that the intention behind the President's Order as well as that of the Provincial Government have to be gathered from the specific words used in the respective orders that were passed and, in this con nection, he has further contended that extrinsic evidence will not be admissible to vary or modify the intention which can be gathered from the orders themselves. He has asked us to ignore the affidavits filed on behalf of the respondents and to consider the orders separately and to give separate effect to both of them.

However, admittedly, the order of the Provincial Government was passed later than the President's Order. A mere comparison of the respective dates of the two orders will lead to that conclusion. The President's Order as communicated to the Provincial Government is dated the 20th of June 1962, and is stated in the following terms:

"President has been pleased to reduce the sentence of 8 years R.I. of Lieut.‑Colonel Gunindra Lal Bhattacharya to 4 years' R. I. on ground of mercy. The petitioner may please be informed accordingly. A press‑note being released to‑day from Rawalpindi."

The clear intention, as can be gathered from the aforesaid terms, is, that the President has reduced the sentence of eight years passed on the petitioner to one of four years rigorous imprison ment. Thus the President's order leaves a residuum of four years which is the un‑remitted portion of the sentence imposed upon the petitioner.

Let us now turn to the order of the Provincial Government as communicated to the petitioner, dated the 26th of June 1962, the specific words of which are as follows:

"In exercise of the powers conferred by section 401 of the Code of Criminal Procedure, 1898 the Governor is pleased to remit 4 years out of the sentence of 8 years rigorous imprison ment passed upon Lieut.‑Colonel Gunindra Lal Bhattacharya by Special Military Court, Dacca in P. S. Case No. 7/61 under Martial Law Zone C' Order No. 121 dated the 15th July 1961."

Thus the remission granted is with reference to the original sentence of eight years' rigorous imprisonment passed on the petitioner by the Special Military Court. There is specific reference to the Special Military Court and the order by which the sentence was passed. Furthermore, there is a reference to the case number, namely, P. S. Case No. 7/61, in respect of which the said sentence was passed. Having taken meticulous pains to describe in detail the original sentence passed upon the petitioner with particular reference to the Court which tried the prisoner, the Provincial Government has merely said that four years out of the sentence of eight years passed upon the petitioner has been remitted. What then is the remission granted by the Provincial Government The order cannot be divorced from its context and, read in its proper context, it cannot but mean that the period of four years' remission granted to the petitioner is to be taken out of the original sentence of eight years' rigorous imprisonment which was passed by the said Military Court Thus, this order also leaves a margin of an unremitted period of four years. Section 401 of the Code empowers the Provincial Government to remit the whole or part of the sentence pronounced upon the prisoner. The Provincial Government could have specifically wiped out the unremitted portion of the sentence that was awarded against the petitioner. But, instead of doing so, the order as passed by the Provincial Government specifically remits only a part of the original sentence. The entire sentence was not wiped out. If the two orders, that is, one passed by the President and the other by the Provincial Government, are considered separately and given effect to in accordance with the specific terms in which the said orders were passed, the result must be that both the President and the Provincial Government have, in fact and in substance, passed one and the same order. Reading both the orders separately, the result is that only four years out of the original sentence of eight years has been wiped out and that four years remained unremitted.

By what magic then the entire sentence has been wiped out Mr. Hamidul Huq Choudhury has argued that the dominant intention of the Provincial Government was to give remission of four years simpliciter and that the reference to the original sentence passed on the prisoner by .the Special Military Court was only a mis-description, having regard to the fact that by virtue o f the President's Order, the prisoner's sentence was no longer eight years rigorous imprisonment but four years as reduced by the President. The fact is, that after the President's Order reducing the sentence awarded to the petitioner to four years imprisonment the residuary period to be served by the petitioner was not any longer four years but less than that inasmuch as the petitioner had already served a period of about a year.

Mr. Hamidul Huq Choudhury has illustrated this point by saying that if A says, "I give my white horse to B", and, it transpires that A has only a black horse, then B will get the black horse as the expression, "white horse" in such a context will be treated as a mere mis-description, the dominant intention of A being to give a horse to B. The correct answer is that, even in such a case, the question whether B will get nothing or whether he will get the black horse will depend upon the circumstances of the case from which the intention of A can be gathered. This is a case of ambiguity. But if shortly prior to making a gift to B. A, in fact, had both a white horse and a black horse, then B would get nothing if at the relevant point he did not have any white horse, unless the circumstances show that it was, in any event, the intention of A to give a horse to B irrespective of its description.

In the present case, there is no question of any misdescrip tion. The description is meticulously accurate inasmuch as the petitioner, in fact, was given a sentence of eight years imprisonment by the Special Military Court. If we are to give effect to the context as specified in the order and with reference to which the Provincial Government made the order, we cannot come to the conclusion that a simple remission or four years was intended. An intention to grant a remission of four years simpliciter is negatived by the express language of the order and such kind of remission could only be spelt out by extrinsic evidence to that effect. No such evidence has been given by the petitioner. The simple question before us is, whether the, remission granted by the Provincial Government is four years out of the sentence of eight years rigorous imprisonment, or is it simply four years, irrespective of the original sentence The argument that the dominant intention is to grant a simple remission of four years presupposes that there is ambiguity it the language as used by the Provincial Government in the order s that has been passed. If there is such an ambiguity, then extrinsic evidence to give a proper meaning to the words used would be relevant and admissible. On behalf of the Provincial Government two affidavits have been filed which fully set out the circumstances under which the aforesaid order was passed indicating that the specific words in which the order has been couched should be given their plain and ordinary meaning. We have no reason to disbelieve the averments made in the said two affidavits filed on behalf of the Provincial Government and, in any event, such averments have not been challenged or controverter by the petitioner. It is stated in the said affidavits that the Provincial Government received a communication with regard to the order passed by the President, the terms of which have been fully set out above. It has also been stated that the said Government did not intend to pass a separate order of remission. The Provincial Government was directed to communicate the President's Order to the prisoner. It was thought that in order to give effect and legal validity to the President's Order, the Provincial Government was called upon to exercise its power given under section 401 of the Code. The fact is that instead of communicating the the President's Order, the said resolution was passed by the Provincial Government and communicated to the relevant authorities. There can be no manner of doubt that the Provincial Government wanted to give a legal clothing to the President's Order and not to grant an independent remission. Having passed the order which was communicated to the prisoner and upon a realisation of the correct position in law, another communication was sent out to the effect that the order of remission was passed by the President and not by the Provincial Government. Upon this there was cancellation of the said order which was passed in the form of a resolution dated the 26th of June 1962. It is, therefore, clear that all along) the line the Provincial Government only intended to give affect to the President's Order. The specific language in which the order was passed and communicated to the petitioner gives no more than a remission of four years out of eight years which is exactly what has been done by the President. Therefore, the averments contained in the affidavits on behalf of the respondents unmistakably prove that what was intended was faithfully expressed in the order that was passed. These circumstances clearly show that what was intended was actually said. The respondents have sought to use the affidavits filed on their behalf not to modify the order passed by the Provincial Government but to explain the words used in the order. The petitioner is, therefore, in this dilemma that whether the affidavits are taken into consideration or whether they are ignored, the same result would emerge ultimately. The actual words in which the order has been expressed leave no room for any doubt that a remission of four years was given out of the original sentence of eight years rigorous imprisonment inflicted upon the petitioner. There is nothing before us on which we can hold that the dominant intention of the Provincial Government was to grant a remission of four years simpliciter. It is thus clear that, even if effect is given to both the orders, the result will be the same. The argument on behalf of the petitioner is based on a simple arithmetic by which the four years allowed by the President have been added to four years, which according to the petitioner have been granted by the Provincial Government. On what basis can this summing up be made The resolution of the Provincial Government, which we have quoted above, makes no reference to the President's Order. The plain language of the order made by the Provincial Government makes it clear that the extent of the remission that was granted was only four out of eight years.

Thus, in either case, whatever view may be taken, the petitioner cannot succeed. If the affidavits are not taken into consideration, no nexus between the two orders is established except that the one comes after the other. In these circumstances, 'there will be no justification for adding the one to the other, particularly, when the latter order (passed by the Provincial Government) does not grant a simple remission of four years but merely remits four out of eight years. Both the orders have to be separately given effect to and the result must be that both have left an unremitted portion of four years out of eight years. Suppose a case where a person convicted and sentenced to imprisonment for seven years by a Court of Session files an appeal to the High Court. There is also a simultaneous move to get a remission of the sentence by the Provincial Government. On appeal the High Court maintains the conviction and reduces the sentence to three years. The Provincial Government then remits the sentence, without reference to the High Court's decision, to four years out of seven years. Can it be said that the entire sentence is wiped out Obviously, this will not be the result of the remission granted by the Provincial Government in such a case. In the supposed case there is not even four years to serve, the High Court having, in fact, reduced the sentence to three years. In the present case also the petitioner having served part of his sentence and the President having ordered a reduction of the sentence to four years, the period of un-served sentence was, at the relevant time, much less than four years. The situation is exactly similar to the one which is before us. The petitioner, therefore, has not succeeded in establishing before us that his entire sentence has been wiped out.

We shall now turn to the only other point which was vigorously addressed to us on behalf of the petitioner by a seemingly attractive, but somewhat lengthy argument. The argument has raised a point of far‑reaching consequence and we are called upon to answer the same. We propose to discuss it at some length. The gist of the contention is that all Martial Law Regulations including the Order and Martial Law Regulation tinder which the petitioner was tried and sentenced to suffer rigorous imprisonment for a period of eight years, can no longer be treated as law' in the context of the present Constitution and, that it must, therefore, follow that there is no legal validity for such sentence as has been imposed upon the petitioner.

Mr. Hamidul Huq Choudhury has primarily based his argument on certain observations of Dicey in his classic work, called "Law of the Constitution", and several decisions of the Courts in this country as well as in England. He has argued that Martial Law is no "law", as according to Dicey it is unknown to the law in England. It would be noticed that Dicey has used the expression "Martial Law" in two different senses. In one sense it is Martial Law which is part of the constitutional law of England. In another sense it is temporary suspension of the civil law and is not part of the law of England. But, under some constitutions, namely, the Constitution of France, it is a part of the Constitution. He has, however, not stated that a revolution, which is not recognised by any Constitution, cannot become a source of law. At pages 287‑288 of his "Law of the Constitution", 9th Ed., Dicey observes as follows:

"Martial Law', in the proper sense of that term, in which it means the suspension of ordinary law and the temporary Government of a country or parts of it by military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the Declaration of the State of Siege', under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (authorise militaire). This is an unmistakable proof of the permanent supremacy of the law under our Constitution.

The assertion, however, that no such thing as Martial Law exists under our system of Government, though perfectly true, will mislead anyone who does not attend carefully to the distinction between two utterly different senses in which the terms martial law' is used by English writers.

Martial Law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly Government, and is most assuredly recognised in the most ample manger by the law of England.

At pages 291‑292 he observes:

"Martial Law is, however, more often used as the name for the Government of a country or a district by military tribunals, which more or less supersede the jurisdiction of the Courts. The proclamation of martial law in this sense of the term is, as has been already pointed out, nearly equivalent to the state of things which in France and many other foreign countries is known as the declaration of a state of siege and is in effect the temporary and recognised Government of a country by military force

We may reasonably, however, conjecture that the terms of the law give but a faint conception or the real condition of affairs when, in consequence of tumult or insurrection Paris, or some other part of France, is declared in a state of siege, and, to use a significant expression known to some continental countries, the constitutional guarantees are suspended'. We shall hardly go far wrong if we assume that, during this suspension of ordinary law, any man whatever is liable to arrest, imprisonment, or execution at the will of a military tribunal consisting of a few officers who are excited by the passions natural to civil war. However this may be, it is clear that in France, even under the present Republican Government, the suspension of law involved in the proclamation of state of siege is a thing fully recognised by the Constitution, and (strange though the fact may appear) the authority of military Courts during a state of siege is greater under the Republic than it was under the monarchy of Louis Philippe.

Now, this kind of martial law is in England utterly unknown to the Constitution."

Thus, Dicey deals with two kinds of "Constitutional" Martial Law, one of which is recognised by the law of England and another kind is that which was recognised, for example, by the Constitution of France (as it then was). There is also another kind of Martial Law, that is, one brought by revolution or a coup d'etat which is outside the scope of Constitutional Law, as discussed by Dicey. He has referred to such kind of revolution or Martial Law'at page 451 in the following terms:

"The Government, it is sometimes suggested, may by the use of actual force carry through a coup d'etat and defy the law of the land."

He has not discussed whether such revolution can be regarded as a source of law, but has merely stated that some kind of revolution can also be brought about through the sovereignty of Parliament.

In the present case the basic thing to remember is that what had happened on the 7th of October 1958, was, in fact, a revolution and a coup d'etat which imposed a Martial Law on the entire country. This kind of revolution or imposition of Martial Law constitutes a class apart and has nothing to do with "Constitutional" Martial Law which is the subject of discussion in, "The Law of the Constitution," by Dicey.

Finding no discussion in Dicey of the kind of revolution we had experienced in October 1958, Mr. Hamidul Huq Choudhury travelled to "The Constitutional History of England" by Maitland. He has quoted the following observation of Maitland at pages 281‑283 of the book named above:

"In Elizabeth's reign it was treason to affirm that the succession could not be settled by act of Parliament. We have seen, however, that James, by the quiet consent of the nation, succeeded to the Crown, though, if statutes on such a matter had any validity, the succession was probably illegal; probably Henry VIII, in exercise of a statutory power, had preferred the issue of his younger to those of his elder sister. There was much therefore in his own case to set James on thinking that the inheritance of the Crown was divinely appointed and was not to be meddled with by act of Parliament. He was succeeded by his son Charles I and when Charles I was murdered he was immediately succeeded by his son Charles II. I put the matter in that way because that was in 1702, and is even now the legal view of the matter, and we must not allow any sympathies or antipathies to interfere with our statement of the law. In 1702 it was not questioned that the First Charles had been murdered, and that the Second began to reign on 30th January 1649. On 29, May 1660, the king began to enjoy his own again, but it already was his own and he had been reigning for eleven years and more. All the acts of the Long Parliament which had not obtained the king's assent were simply void. At the Restoration no statute was passed to declare them void; they were obviously void as having been made without the royal assent, and no repeal was necessary. In 1702 no lawyer would have appealed to them as law, and no lawyer would do so at the present day: they have no place in our statute book. This theory had been pressed far. On 16 March 1660, the remains of the Long Parliament had declared itself dissolved. Elections were held without the king's writ‑no decisive measure had yet been taken for inviting Charles to England and a Parliament, afterwards known as the Convention Parliament, consisting of a few lords and the newly‑elected commons, assembled on 25, April. It at once proceeded to enter into negotia tions with Charles; on 7, May the houses resolved that the king should be proclaimed; on the 24, he set sail ; on the 26, he landed; on the 29, he met the Parlia ment. An act was at once passed declaring that the Long Parliament was dissolved (it had never been dissolved by the king, and so there might be question as to its dis, solution) and that the Lords and Commons now sitting at Westminster in this present Parliament are the two houses of Parliament notwithstanding the fact that they had not been summoned by the king's writ. Of course, however, if the king's writ of summons was necessary to the legal being of a Parliament, this defect could not be remedied by a Parliament which had come together without such writ if it was not a true Parliament, its own declaration could not make it so. This Convention Parliament sat on until December 1660, and passed a number of acts. Another Parliament met in May 1661, and this of course was summoned by the king's writ in due form. It proceeded to pass an act confirming the acts of the Convention Parliament as though their validity might be questionable owing to the want of the king's writ. All therefore that was done at the Restoration was done on the theory that Charles 11 had reigned from the moment of his father's death."

With reference to the aforesaid observation of Maitland, Mr. Hamidul Huq Choudhury has argued that during the Com monwealth or the Protectorate established by Oliver Cromwell, the laws that were passed were, in fact, no laws at all and would not be treated as such. With reference to the continuity of the constitutional law of England, which underwent an interruption since the murder of Charles I till the restoration of his son, Charles II, anything done during that interregnum must be regard ed as having no legal validity. It is obvious that Maitland was conscious of the opposite view taken by others and had appealed to them not to "allow any sympathies or antipathies to interfere with our statement of law". Apart from the fact that the view taken by Maitland has not received support from other authorities, the question which strikes one in the face is that Maitland's whole thesis is dependent on the acceptance of a debatable proposition, namely, that Charles II immediately succeeded to the throne of England upon the death of his father, Charles I. Historically speaking, it would not be correct to say that there was, in fact, no interregnum between the death of Charles I and the accession to the throne of his successor, Charles II, notwithstanding any legal maxim to the effect that; there was no such gap. In accordance with the legal maxim that the king never dies, there was no interregnum between the death of a king and the accession of his successor. From this point of view, there was no vacancy in the throne of England on the death of Charles I as according to the said legal maxim, Charles II took the place of his father immediately on the death of the latter. From this point of view, the regime ushered in by Oliver Cromwell can be said to be of no legal validity. This can be said only on the basis of the continuity of the Monarchy as conceived by the law of England.

In the case before us we are not faced with a similar position. It cannot be said that the 1956 Constitution of Pakistan was put away temporarily and that it was restored on the 8th of June 1962. If such a thing had happened, all that was done in the interregnum would be considered illegal and invalid unless authorised by or under the same Constitution of 1956. The fact is, that the 1956 Constitution was totally wiped out and this country embarked upon a point of no return. The 1956 Constitution has not re‑emerged. Where is then the Constitution with reference to which it could be said that the Martial Law Regulations and various President's Orders promulgated during the period between the 7th of October 1958 and the 7th of June 1962, can have go legal validity With reference to the present Constitution, which, Mr. Hamidul Huq Choudhury has accepted as a valid Constitution, can it be said that Martial Law Regulations and various Presidential Orders, which have preceded the same, are invalid The restoration of Charles II has no relevancy to the situation which we had faced. The restoration of Charles II to the English Throne has been aptly described by the historians as "The Restoration." In the case of Pakistan, there has been no restoration of the 1956 Consti tution. A situation somewhat analogous to what happened in this country on the 7th of October 1958, would, perhaps, be the revolution of 1688 which put William, Prince of Orange, and his consort Mary on the throne of England. Maitland has taken notice of the revolution in the following terms (pages 283‑285) :‑

"Passing to the events of 1688 we see that it was extremely difficult for any lawyer to make out that what had then beers done was lawful. What had happened was briefly this. In July 1688, James had dissolved Parliament, so that at the critical moment there was no Parliament in existence. On 5 November William landed; on 11 December James fled from London and dropped the great seal into the Thames; on the 22nd he left the kingdom. William, Prince of Orange, invited an assembly. It was rapidly got together. He summoned the peers and such of the members of the Parlia ment of Charles 11's reign (not James II) as were in London; the eldermen of London also were summoned. This, of course, the lawyer cannot but regard as a quite irregular assembly, called by one who is not, who does not profess to be king. The assembly met on 26 December 1688, and it advised the Prince to summon a convention of the estates of the realm. In accordance with this advice he invited the Lords to come, and the counties and boroughs to send representatives to a convention on 22 January 1689. The convention met. On 25th January the Commons resolved that King James II having endeavored to subvert the constitution of the kingdom by breaking the original contract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and having withdrawn himself out of the kingdom, has abdicated the Government, and that the throne has thereby become vacant. After some hesitation, on 12 February the Lords agreed to this resolution, and it was resolved that William and Mary should be proclaimed King and Queen. On 13, February the Houses waited on William and Mary and tendered them the Crown, accompanied by the Declaration of Rights. The Crown was accepted. The convention, thereupon following the precedent of 1660, passed an act declaring itself to be the Parliament of England, notwith standing the want of proper writ of summons. This Convention Parliament was not dissolved until early in 1690, and passed many important acts including the Bill of Rights, which incorporated the Declaration of Rights. A new Parliament met on 22 March 1690, and this of course was duly summoned by writs of the King and Queen. It proceeded to declare by statute that the King and Queen were King and Queen, and that the statutes made by the convention were and are all laws and statutes of the kingdom.

"Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word abdicated' as expressing James's action, and, according to the established legal reckoning, he abdicated on the 11 December 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the Crown, 13, February 1689, there was no King of England. Possibly the convention would better have expressed the truth if, like the Parliament of Scotland, it had boldly said that James had forfeited the Crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned Not by a King of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The Parliaments of 1327 and 1399 were summoned by writs in the King's name under the great seal. Grant that Parliament may depose a King, James was not deposed by Parliament; grant that Parliament may elect a king, William and Mary were not elected by Parliament. If when the Convention met it was no Parliament, its own act could not turn it into a Parliament. The act which declares it to be a Parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being King and Queen; but how do they come to be King and Queen Indeed this statute very forcibly brings out the difficulty‑an incurable defect. So again as to the confirming statute of 1690." (The italicized have been done by us).

If Maitland's arguments are carried to their logical conclusion then it must be held that whatever has been done by the King in England or by the King in Parliament after 1688 up to the present time, must be deemed to be illegal. But, can it be said that all British statutes and legislations since 1688 till the present day are without legal validity To say this would be to turn one's back upon history. In these circumstances, Maitland had to conclude with an apologia at page 285 as follows: --‑

"Do not think that 1 am arguing for the Jacobite cause, I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our Constitutional Law."

(The italicized are ours)

It is, therefore, clear that all that Maitland is saying is that a revolution has no place in the Constitutional Law of England. It was beyond the scope of his discussion as to whether a revolution can independently become an effective source of law.

Therefore, neither Dicey nor Maitland is an authority for the proposition that Martial Law Regulations passed and promulgated during the period between the 7th of October 1958 and the 7th of June 1962, are not laws in accordance which the legal sense of that term.

Mr. Hamidul Huq Choudhury has further discussed at length two cases in aid of the argument advanced by him. The first, which is popularly known as the Sholapur case, is the case of Emperor v. Chanappa Shantirappa (I L R 55 Bom. 263) the facts of which, as given in the head‑notes, are as follows:

"On and after the 7th of May 1930 riots broke out at Sholapur, considerable damage was done to property and two unarmed policemen were murdered. Troops had to be requisi tioned. The situation was well in hand by the 12th May. Fearing further trouble, the District Magistrate, with the previous sanction of the Government of Bombay handed over charge of the town to the Military Authorities at 8‑30 p.m. on May 12. After the Military took charge of the town from the Civil Authorities, martial law was proclaimed. Certain Regulations were published on May 13 and a Court Martial was set up for the trial of offences against those regulations.

The applicants were convicted and sentenced by the Court Martial for breach of the regulations. On May 15, the Sholapur Martial Law Ordinance (IV of 1930) was published at Simla in the Gazette of India. On May 18, at 3‑45 p.m. it was proclaimed in Sholapur. Section 7 of the Ordinance provided that all offences punishable under the Ordinance were tribal by the ordinary Criminal Courts. Section 10 provided for the validation of regulations and orders made before the proclamation of martial law under section 2. Section 11 provided for the validation of Martial law sentences prior to the proclamation of May 18."

The Court held that what was done by the Military Court was validated by law and the petition was dismissed.

Mr. Hamidul Huq Choudhury laid great stress on the observation of Beaumont, C. J. to the effect that Martial Law in the sense in which it had been used by him, was no law at all. Beaumont, C. J. was saying this with reference to the Consti tutional Law of England and the Government of India Act, 1919, which did not authorised the kind of Martial Law with which he was dealing. Since the Government of India Act, 1919 was then the Constitution of India it could be correctly said that Martial Law was no law with reference to that Constitution. It is not the kind of Martial Law which is imposed by a revolution and which completely wipes out the Constitution itself. It is the same kind of Martial Law as is discussed by Dicey. We are, in this case, concerned with a revolution and a Martial Law imposed there under.

To the same effect is the decision of the Lahore High Court in the case of Muhammad Umar Khan v. The Crown (P L D 1953 Lah. 528) where a Special Bench of the Lahore High Court had to consider the scope, character and the limits of Military Authorities under a kind of Martial Law which was then imposed, with reference to the Government of India Act, 1935, as adapted by Pakistan. In the background of the Martial Law which was imposed in the Punjab in order to deal with an upheaval which threw the normal machineries of the Civil Government out of gear, the action taken under the Martial Law was subsequently validated by a separate legislation. In dismissing an application for the relief in the nature of habeas corpus under section 491 of the Code, Munir, C. J. dealt with various kinds of Martial Law with which we are not concerned at the present moment. It is obvious that Munir, C. J. in P L D 1953 Lah. 528 had to deal with a similar kind of martial law which was noticed in the case of Emperor v. Chanappa Shantirappa and others Munir, C. J. in the aforesaid case, was not called upon to deal with the fourth kind of martial law brought about by a successful revolution which had abrogated an existing constitution, thereby bringing about a totally new dispensation.

The revolution which took place in Pakistan on the 7th of October 1958, was discussed and dealt with by the Supreme Court of Pakistan in the case of The State v. Dosso and an other (P L D 1958 S C (Pak.) 533). At pages 538, 539 and 540, Munir, C. J. has observed as follows:

"By the Proclamation of October 7, the President annulled the Constitution of 22nd March 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, Martial Law was declared throughout the country and General Muhammad Ayub Khan, Commander‑in‑Chief of the Pakistan Army, was appointed as the Chief Martial Law Administrator. Three days later was promulgated by the President the Laws Continuance in Force Order, the general effect of which is the validation of laws, other than the late Constitution, that were in force before the Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The Order contained the further direction that the Government of the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan shall be governed ‑ as nearly as may be in accordance with the late Constitution.

As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles which determine the validity or otherwise of law‑creating organs in modern States which being members of the comity of nations are governed by International Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made there under is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Consti tution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitu tion. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult mutiny, violence and bloodshed but from a juristic point of view the method by which the person by whom a revolution is brought about is wholly immaterial. The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d'etat by a political adventure or it may be affected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the resolution itself becomes a law‑creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success

After a change of the character I have mentioned, has taken place, the national legal order must for its validity depend upon the new law‑creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution. While on this subject, Hans Kelson, a renowned modern jurist, says:

From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase remains valid, does not give an adequate description of the pheno menon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old Constitution prescribed. That Constitution is no longer in force ; it is replaced by a new Constitution which is not the result of a constitutional alteration of the former. If laws which are introduced under the old Constitution continue to be valid under the new Constitution this is possible only because validity has expressly or tacitly been vested in them by the new Constitution . . . . . " (The italicized have been done by us).

It is thus clear that the revolution of the 7th October 1958, put a terminus a quo to the late Constitution of 1956, and, in fact, it was completely wiped out. The revolution set up a new dispensation and became a new source of law. The present Constitution of Pakistan itself is a sequel to the said revolution. Mr. Hamidul Huq Choudhury has argued that the Constitution of 1956 was given in the name of the people of Pakistan whose sovereignty had been recognised and that the present Constitution is also based upon the mandate given by the people thereby recognising its sovereignty. The Martial Law Regulations in the interregnum have; therefore, become illegal and must be treated as no law for reasons upon which Maitland has said that in the interregnum between the death of Charles I and the restoration of Charles II, all laws passed during the regime established by Oliver Cromwell were illegal. Is this so Has the same constitution been "restored" in this country If after a proclamation of emergency under the 1956 Constitution on the 7th of October 1958, Martial Law Regulations were imposed tempo rarily, then such Regulations would have become illegal and would not have had the effect of law when the same Constitution, namely, the Constitution of 1956, happened to be "restored". This is not what happened in this country. It is true that the imposition of Martial Law was expressed to be of a temporary nature. But, it ushered in a new regime which became the source of law. The fact that the Presidential Orders and the various Martial Law Regulations constituted a temporary and stop‑gap arrangement, makes no difference. Their legality flowed from the revolution of the 7th of October 1958, and the present Constitution is nothing but a step which has been taken in continuation of the same process. It is unnecessary to discuss the other cases upon which Mr. Hamidul Huq Choudhury has relied b,‑cause they have been fully discussed in the two decisions we have noticed above, namely the cases reported in I L R 55 Bom. 263 and in P L D 1953 Lah. 528.

In any event, Mr. Hamidul Huq Choudhury has argued that if the present Constitution which, according to him is a valid Constitution, has recognised the aforesaid Presidential Orders and Martial Law Regulations as "law" then, it was conceded by him, that it must be held that such Orders and Martial Law Regulations were valid laws. It is, therefore, necessary to examine the relevant provisions of the present Constitution. We may refer to Article 225 which reads as follows

"225. (1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.

(2) The Presidential Proclamation made on the seventh day of October, one thousand nine hundred and fifty‑eight, is revoked with effect as from the commencing day, and the Orders specified in the Table to this clause (and Orders mending those Orders) are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders.

Number	Title
No. 1 of 1958	The Laws (Continuance in Force) Order, 1958.
No. 2 of 1958	The Government (Presidential Cabinet) Order, 1958.
No. 2 of 1959	Legislative Powers Order, 1959.
No. 8 of 1959	The State Arrangements Order, 1959.

(3) All Martial Law Regulations, except those specified in the Table to this Clause are repealed with effect as from the commencing day, and on that day each Martial Law Regu lation so specified shall be deemed to have become an Act of the Central Legislature and shall, with the necessary adaptations, have effect as such.

Date	Title
7th February 1959	West Pakistan Land Reforms Regulation.
23rd July 1959	Rawalpindi (Requisition of Property) Regulation, 1959.
16th June 1960	Pakistan Capital Regulation.
23 August 1961	Scrutiny of Claims (Evacuee Property) Regulation.
17th March 1959	West Pakistan Border Area Regulation, 1959.

(4) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Constitution (other than Part 11 of this Constitution), the President may, within a period of two years, after the commencing day, make, by Order, such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any order so made shall have effect (or be deemed to have had effect) from such date not being date earlier than the commencing day, as may be specified in the Order.

(5) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (4) of this Article in respect of the laws relating to matters with respect to which the Legis lature of the Province has power to make laws.

(6) The powers exercisable under clauses (4) and (5) of this Article shall be subject to the provisions of any Act of the appropriate Legislature.

(7) In this Article, "Existing Laws" means all laws (including Ordinance, Orders‑in‑Council, Orders, Rules, Bye‑laws, Regula tions and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day."

Then again, Article 250 runs thus:

"250. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not‑

(a) revive anything not in force or existing at the time at which the repeal takes effect ;

(b) affect the previous operation of the law or anything duly done or suffered under the law ;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."

If we turn back to Article 225 we would notice that sub- article (1) has kept alive all existing laws' except those which have been expressly repealed. The rest of the article specifies which of the "existing laws" have been repealed or preserved. Amongst the "existing laws" sub‑article (2) has revoked the Presidential Proclamation made on the 7th of October 1958, and has repealed the "Orders" specified in the said clause. It has furthermore provided that such repeal and revocation shall not affect any "existing laws" made under those Orders.

Sub‑article (3) has repealed another kind of "existing laws", namely all Martial Law Regulations except those specified in the said sub‑article. It has furthermore provided that the Martial Law Regulations preserved by the said sub‑article (3) shall be "deemed" to have become an Act of the Central Legislature. Emphasising the word "deemed", Mr. Hamidul Huq Choudhury has said that one only deems something which did not otherwise exist. The answer is that they have been "deemed" as such because, in fact, they did not constitute acts of the Central Legislature. This is why it was necessary to use the word "deemed". However, sub‑article (7) is an interpretation clause and it defines "existing laws" to include "Orders" and "Regu lations". Mr. Hamidul Huq Choudhury pointed out that Article 225 (7) corresponds to Article 372 of the Indian Constitution, section 321 of the Government of India Act, 1935 and Article 224 (1) of the Constitution of Pakistan, 1956, and has, therefore, urged that all these provisions should receive similar interpretation.

He has argued that since the Government of India Act and the Constitution of 1956 did not contemplate orders and regulations, such as, President's Orders and Martial Law Regu lations which were promulgated between the 7th of October 1958 and 7th of June 1962. Article 225 (7), which is couched in the same language as Article 224 (1) of the 1956 Constitution should not be interpreted to include within the terms "existing laws", such "Orders" and such "Martial Law Regulations" as were promulgated after October 7, 1958. The gist of the argument is that the terms "Orders" and "Regulations" should be inter preted in the same sense as the meaning of those words in Article 224 (1) of the 1956 Constitution. The answer to this contention is that the expressions "Orders" and "Regulations" as used in Article 225 of the present Constitution need not be necessarily confined to the sense in which they have been used in various other Constitutions, but must be read with reference to the context of Article 225 (7). In this connection, the entire Article 225 including all its sub‑articles must be read together in order to ascertain what the terms "Orders" and "Regulations" mean and include. If sub‑article (7) of Article 225 is read with reference to its context, there can be no manner of doubt that the expressions "Orders" and "Regulations" in Article 225 (7) as also in sub‑articles (2) and (3) of Article 225 include the Presidential Orders and Martial Law Regulations promulgated after the 7th of October 1958. Furthermore, the fact that Article 225 (2) consciously repeals all Martial Law Regulations except those that have been specifically saved, postulates that the Constitution has treated them as "laws". Mr. Hamidul Huq Choudhury's argument that this has been done as a matter of extra caution will not stand if the entire Article 225 is read as a whole.

Having held that Martial Law Regulations and President's Orders have been treated as "existing laws" under the present Constitution, it must also be held that the Orders and Martial Law Regulations under which the prisoner was tried and eventually sentenced to a term of rigorous imprisonment, will continue to be effective even after their repeal. If any authority is needed for this proposition, Article 250 will provide the necessary answer.

Thus, it is clear that the Constitution itself has given a recognition to Presidential "Orders" and the Martial Law Regulations as "laws". This is a complete answer to the argument that those 9rders and Regulations cannot be treated at all as "laws".

Mr. Hamidul Huq Choudhury has referred us to a number of cases discussed in Kerr and Lawson's cases on Constitutional Law, 2nd Ed. We have not discussed them inasmuch as they have been fully discussed in the Sholapur case (I L R 55 Dom. 263) and in the case reported in P L D 1953 Lah. 528. They all relate to Martial Laws which are either provided by or recognised by some Constitution or by a legislation under the said Constitution. They have nothing to do with revolution of a kind with which we have to deal at the present moment.

It was further argued by Mr. Hamidul Huq Choudhury that force has never been the source of law referring to a dictum of Rousseau in his well‑known work, "Social Contract". It is true according to Rousseau, the origin of "State" and "Laws" is a primeval contract between the members of a somewhat nebulous society. This is one school of Political Philosophy, which has not been accepted in its undiluted form. There is another school of Political Thought led by Hobbes which recognises that the might and force behind a sovereign authority is the origin of "Law" and "State". Other Political Philosophers lik Locke, for instance, have taken a view which is a via‑media between the two views expressed above. With regard to the origin of law, Political Philosophers have held different views and they are far too numerous to be discussed here. Such discussion would be irrelevant for the purpose of this case.

Similarly, no useful purpose would be served by gyrating round the interminable definitions that have been given to the expression "Law" across long‑drawn centuries, by different philosophers and jurists, who have obviously understood that expression in various senses. This accounts for the great divergence in their views. We have, therefore, refrained from discussing the opinions, ponderous as they are, of philosophers, from Aristotle and Plato to Austin, Salmond and Holland, that have been read before us by both Mr. Hamidul Huq Choudhury and the Advocate‑General, East Pakistan, in order to support two different views. But, an examination of the great mass of divergent definitions as propounded by thinkers beginning from Hellenic philosophers to modern jurists will lead one to the conclusion that a workable definition which is accepted by lawyers for practical purposes is, that law is a body of Acts, Orders, Ordinances, Regulations, Rules, Conventions, customs and practices which haves .the sanction of an authority capable of establishing law and order and which is thus enforced or recognised by Courts and other law‑enforcing machineries. This is, in fact, the gist as also the raison deter of Dosso's case discussed above. The answer to the point raised, on behalf of the petitioner, is, however, furnished by the provisions of the present Constitution which have already been discussed by us and also by the decision of the Supreme Court of Pakistan in Dosso's case which we have quoted extensively.

We may, however, quote here from Willoughby on "The Government of Modern States". At pages 118‑119 of the book he observes:

"We have pointed out that the task of formulating a con stitution has two distinct phases; that of its adoption in the first instance and that of its subsequent modification, and that each of these phases presents special questions or problems requiring separate consideration.

If we analyze the problem of the adoption of a constitution in the light of history it will be found that modern states have acquired their constitutions in four different ways: (1) by grant, (2) by deliberate creation, (3) by a process of gradual evolution, and (4) by revolution."

As to the establishment of constitutions by grant, Willoughby observes (p. 119):

"Historically, most modern states began their careers as, or speedily became, in effect, autocracies.

It is immaterial from the stand‑point of political science, whether the ruler's motive in doing this is a belief that the powers of Government and the manner of their exercise should be defined in a document of a formal, legal character or is due to a desire to avoid consequences that might follow should he refuse to do so. The important thing is that this act is his act. When a Government is established in this way, the sovereign ruler acts as does a constitutional convention. He frames the constitution that is to provide for the new form of Government, adopts it, and promulgates it Legally, the act is his and his alone, and it is his approval that gives it validity."

Discussing under the head, "Establishment of Constitution by Revolution", Willoughby proceeds to observe (pp. 122‑123) as follows:

"A final, and much more usual, method by which a Con stitutional system is established is revolution. This occurs when people living under an autocracy becomes dissatisfied with that form of Government and decides, notwithstanding the opposition of its ruler, to establish in its place a Govern ment resting upon the principles of popular sovereignty and representative Government, or, vice versa, a people living under a representative form of Government overthrows that form and establishes one resting upon the principle of autocracy. This is the method through which were established the representative Governments of France, our own Republic, and most of the succession States that have come into existence as the result of the break‑up of the old German and Austro‑Hungarain Empires."

He goes on to say:

"In studying these movements whereby a change in the form of Government is forcibly brought about, it is of interest to note that revolutions present two distinct phases and aspects. They are an armed protest against existing mis‑Government or oppression by the governing authorities and they are an assertion that the Government, purely as a matter of political theory, should rest upon another principle."

Wheare in his "Modern Constitutions", p. 75 has observed thus:

"In what circumstances can a Constitution claim to have legal authority By what criteria do those whose business it is to administer the law, and particularly those who administer law in the Courts, recognize that a certain document, described as a Constitution, is part of the law The general answer to this question is that it must have been enacted or approved or promulgated by a body recognized as competent to make law."

"What seems to emerge from an examination of Constitutions is that, from the strictly legal point of view, they have legal authority because they have been enacted by a body recognized as competent to give them force of law."

Mr. Hamidul Huq Choudhury has argued that all Courts in Pakistan including the Supreme Court and the High Courts, owed their re‑birth, after the revolution of 1958 to the revolution itself and, therefore, he submitted that, at the time when Dosso's case was decided, the Supreme Court could not give any other decision. This may be a rough and ready, easy and a rather light‑hearted method of disposing of that case. But, that was not the ratio decidendi of Dosso's case. The Supreme Court in that case has not based its decision on a transmigration that had taken place within judicial bodies but has held that the (1958) October Revolution and the President's Post‑Proclamation Order No. 1 of 1958, Laws (Continuance in Force) Order, 1958‑of the 10th of October 1958, have become a new source of law. In accor dance with the said decision the Proclamation of the 7th of October 1958, and the Laws (Continuance in Force) Order, 1958 became the Constitution of Pakistan at that time. We are not concerned with the ethics of the Revolution or its moral and political justification. It is not our function to adjudicate upon the propriety of bringing about the Revolution of 1958. We are confined to the effect of that revolution on the law of the country. On this question an authoritative decision has been given by the Supreme Court (in Dosso's case) which is binding on us.

Before parting with this case, we would like to observe that Mr. Hamidul Huq Choudhury prefaced his arguments by saying that he had appeared before us in pursuance of a direction given by this Court that the petitioner, if he so wished, might arrange for his representation by a lawyer. Obviously, he wanted us to note that he should not be understood to have any sympathy with what in every country is regarded as an offence against the integrity of the State. No such introductory observation was necessary so far as we are concerned. We are aware that he was before us in obedience to the duty which he owes to his great profession and to this Court. He has faithfully and, if we may say so, very ably discharged that duty. We would also like to acknowledge the assistance we received from the learned Advocate‑General, whose researches on the lines indicated by us in the course of the arguments addressed by Mr. Hamidul Huq Choudhury, have been helpful to us.

We may also refer to a point which was mentioned before us, We were told that the quality of mercy was not strained and that punishment did not necessarily always act as a deterrent. Wt were also reminded of the milk of human kindness and of mercy, seasoning justice. The two orders that were passed hoc undoubtedly raised an expectation in the mind of the petitioner that he would be a free man. But, the point before us was pure question of law and legal interpretation. There was n4 occasion for us to season justice with mercy. The argument addressed to us in this behalf may be directed to a different forum. Such a power of showing mercy has been vested by law in the President and the Provincial Government, both or either of whom may yet show further clemency to the petitioner. Their powers are not restricted to one user only.

The result, therefore, is that, for reasons stated above this Rule is discharged.

SATTAR, J.‑----I agree.

A. M. SAYEM, J.‑---I agree.

A. H.

Rule discharged.

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