Liaquat Hussain - PLD 1999 SC 504

P L D 1999 Supreme Court 504
Present: Ajmal Mian, C. J., Saiduzzaman Siddiqui,
Irshad Hasan Khan, Raja Afrasiab Khan,
Muhammad Bashir Jehangiri, Nasir Aslam Zahid,
Munawar Ahmed Mirza, Mamoon Kazi and
Abdur Rehman Khan, JJ
Sh. LIAQUAT HUSSAIN and others---Petitioners
versus
FEDERATION OF PAKISTAN through Ministry of
Law, Justice and Parliamentary Affairs,
Islamabad and others---Respondents
Constitutional Petitions Nos.37, 38, 42 and 43 of 1998 and No.4 of

1999 alongwith Civil Review Petitions Nos.l to 5 of 1999, decided
on 22nd February, 1999.
(a) Pakistan Armed Forces (Acting in Aid of the Civil Power)

Ordinance (XII of 1998)---
----S. 6 & Sched.---Anti-Terrorism Act (XXVII of 1997),

Preamble--Constitution of Pakistan (1973), Art. 184(3)---Vires of
Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance, 1998---Constitutional petition before Supreme Court
under Art.184(3) of the Constitution--- -Provisions of Pakistan
Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998,
in so far as these allow the establishment of Military Courts for
trial of civilians charged with the offences mentioned in S.6 and
Schedule to the said Ordinance, are unconstitutional, without
lawful authority and of no legal effect---Cases wherein sentences
have already been awarded but the same have not yet been
executed, shall stand set aside and the cases stand transferred to the
AntiTerrorist Courts already in existence or which may be created
in terms of guidelines provided by the Supreme Court which may
contribute towards the achievement of the objective---Evidence
already recorded in such cases and the pending cases shall be read
as evidence in the cases, provided that same shall not affect any of
the powers of the Presiding Officers of Anti-Terrorist Courts in
that regard as is available under the law---Sentences and
punishments already awarded and executed in the cases will be
treated as past and closed transactions and will not be affected by
the decision of the Supreme Court.

Ordinance, 1998 as amended uptodate, in so far as it allows the
establishment of Military Courts for trial of civilians charged with
the offences mentioned in section 6 and the Schedule to the said
Ordinance, are declared unconstitutional, without lawful authority
and of no legal effect and that the cases in which sentences have
already been awarded but the same have not yet been executed
shall stand set aside and the cases stand transferred to the Anti-
Terrorist Courts already in existence or which may hereinafter be
created in terms of the guidelines provided by Supreme Court for
disposal in accordance with the law. The evidence already recorded
in the said cases and the pending cases shall be read as evidence in
the cases provided that it shall not affect any of the powers of the
Presiding Officer in this regard as is available under the law. The
above declaration will not affect the sentences and punishments
already awarded and executed and the cases will be treated as past
and closed transactions.
The following guidelines were provided by the Supreme Court in

exercise of its Constitutional jurisdiction under Article 184 (3) of
the Constitution to achieve the required objective:
(i) Cases relating to terrorism be entrusted to the Special Courts
already established or which may be established under the Anti-
Terrorism Act, 1997 or under any law in terms of the judgment of
Supreme Court in the case of Mehram Ali and others v. Federation
of Pakistan (PLD 1998 SC 1445);
(ii) One case be assigned at a time to a Special Court and till

judgment is announced in such case, no other case be entrusted to
it;
(iii) The concerned Special Court should proceed with the case
entrusted to it on day-to-day basis and pronounce judgment within
a period of 7 days as already provided in Anti-Terrorism Act, 1997
or as may be provided in any other law;
(iv) Challan of a case should be submitted to a Special Court after

full preparation and after ensuring that all witnesses will be
produced as and when required by the concerned Special Court;
(v) An appeal arising out of an order/judgment of the Special Court

shall be decided by the appellate forum within a period of 7 days
from the filing of such appeal;
(vi) Any lapse on the part of the investigating and prosecuting

agencies shall entail immediate disciplinary action according to the
law applicable;
(vii) The Chief Justice of the High Court concerned shall nominate
one or more Judges of the High Court for monitoring and ensuring
that the cases/appeals are disposed of in terms of these guidelines;
(viii) That the Chief Justice of Pakistan may nominate one or more
Judges of the Supreme Court to monitor the implementation of the
guidelines. The Judge or Judges so nominated will also ensure that
if any petition for leave/or appeal with the leave is filed, the same
is disposed of without any delay in the Supreme Court;
(ix) That besides invoking aid of the Armed Forces in terms of

sections 4 and 5 of the Anti-Terrorism Act, 1997, the assistance of
the Armed Forces can be pressed into service by virtue of Article
245 of the Constitution at all stages including the security of the
Presiding Officer, Advocates and witnesses appearing in the cases,
minus the process of judicial adjudication as to the guilt and
quantum of sentence, till the execution of the sentence.
Per Ajmal Mian, C.J., Saiduzzaman Siddiqui, Irshad Hasan Khan,

Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslam
Zahid, Munawar Ahmed Mirza, Mamoon Kazi and Abdur Rehman
Khan, JJ. agreeing-
(b) Pakistan Armed Forces (Acting in Aid of the Civil Power)

Ordinance (XII of 1998)---
---Preamble -Salient features of the Ordinance stated.
(c) Constitution of Pakistan (1973)-
----Arts. 175 & 203---Pakistan Armed Forces (Acting in Aid of the

Civil Power) Ordinance (XII of 1998), S.3---Establishment and
jurisdiction of Courts---High Court to superintend subordinate
Courts---Military Courts convened under S.3, Pakistan Armed
Forces (Acting in Aid of the Civil Power) Ordinance, 1998 to try
civilians for civil offences---Validity---Such Courts do not fall
within the category of the Courts referred to in Arts. 175 & 203 of
the Constitution --Neither said Military Courts nor the personnel to
man the Courts qualify the other requirements spelled out in the
case of Mehram Ali PLD 1998 SC 1445--Constitution recognises
only such specific Tribunals to share judicial power with the
"Court" referred to in Arts.175 & 203, which have been
specifically provided by the Constitution itself.
Constitution recognises only such specific Tribunals to share

judicial power with the Court referred to in Articles 175 and 203,
which have been specifically provided by the Constitution itself,
like Federal Shariat Court (Chapter 3-A of the Constitution),
Tribunals under Article 212, Election Tribunals (Article 225) and
that any Court or Tribunal which is not founded on any of the
Articles of the Constitution cannot lawfully share judicial power
with the Courts referred to in Articles 175 and 203 of the
Constitution. The Military Courts to be convened under section 3
of Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance, 1998 do not fall within the category of the Courts
referred to in the above Articles. Neither the said Military Courts
nor the personnel to man the same qualify the other requirements
spelled out in the case of Mehram Ali PLD 1998 SC 1445.
Mehram Ali and others v. Federation of Pakistan PLD 1998 SC

145 fol.
Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar.
604 and Darwesh M. - Arbey, Advocate v. Federation of Pakistan
through the Law Secretary and 2 others PLD 1980 Lah. 206 ref.
(d) Constitution of Pakistan (1973)---
----Art. 245---Provision of Art. 245 of the Constitution of Pakistan

analysed.
(e) Constitution of Pakistan (1973)---

----Art. 245---Scope and purpose of Art.245 of the Constitution
outlined.
(i) The scope and purpose of Article 245 is restricted, namely, it is

called in aid of civil power subject to law and -its scope may
further be limited or controlled by law but cannot be increased by
any subsidiary law beyond the purview of Article 245; a ,
(ii) the words "act in aid" have their own connotation, namely, to
come to help or assistance of the civil power for maintaining law.
and, order and security;
(iii) the words "act in aid" employed in clause (1) of Article 245
dispel all doubts about the scope of Article 245 inasmuch as it
presupposes that the civil power is still there while the Armed
Forces act in aid of civil power;
(iv) in case of invocation of Article 245 of the Constitution the

civil power is neither supplanted nor effaced out but it is preserved
and invigorated through the instrumentality of the Armed Forces;
(v) since the scope and sphere of action of Army under Article 245
is strictly limited to aiding a civil power, it disqualifies the Army to
act in supersession of the Civil Courts and even an Act of
Parliament cannot enable them to perform such judicial functions;
(vi) the language employed in Article 190 that "all Executive and
Judicial Authorities throughout Pakistan shall act in aid of the
Supreme Court" reinforces the conclusion that the civil power is
neither to be supplanted nor to be effaced out;
(vii) the use of Armed Forces in aid of civil power in case of
failure of the machinery of civil power may be needed by the Civil
Courts themselves for the purpose of performing their own
functions;
(viii) the quantum of aid to be given and the manner in which this
assistance is to be rendered by the Armed Forces as a matter of
Constitutional duty depends upon the nature of the direction issued
by the Federal Government in this behalf and such direction should
also to be within the ambit of the law and the Constitution;
(ix) to enable the Armed Forces to perform their aforesaid limited

function/duty, they must of necessity be clothed with Police
powers and to constitute valid exercise of such power, it must
neither be arbitrary nor excessive as it is subject to law;
(x) the argument that the Military Tribunal will ensure prompt
punishment as an example for others overlooks the disadvantages
of Military trial and underestimates the importance of a trial by an
ordinary Civil Court;
(xi) Article 245 of the Constitution cannot be invoked by a political

Government to rule through the Armed Forces so as to clothe them
with such powers and jurisdiction which purports to replace the
civil powers; and
(xii) the language employed in Article 245 of the Constitution as

compared to the language, which was used in the corresponding
Articles of the late Constitutions, namely, Article 199 of 1956
Constitution, Article 223-A of 1962 Constitution and Article 278
of the Interim Constitution 1972, clearly indicates that the present
Constitution does not envisage the imposition of Martial Law.
Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar.
604 and Darwesh M. Arbey, Advocate v. Federation of Pakistan
through the Law Secretary and 2 others PLD 1980 Lah. 206
approved.
Naga People's Movement of Human Rights v. Union of India AIR

1998 SC 431 ref.
(f) Constitution of Pakistan (1973)---
----Art. 245---Pakistan Armed Forces (Acting in Aid of the Civil

Power) Ordinance (XII of 1998), S.3---Convening of Military
Courts to try civilians for civil offences---Validity---Expression
"The Armed Forces shall ... ... ... ...and subject to law act in aid of
civil power when called upon to do so" used in Art.245,
Constitution of Pakistan---Connotation---Word "aid" does not
admit replacement or substitution---"Subject to law" used in
Art.245 of the Constitution connotes the "law" which may be in
existence at the time of invoking of Art. 245 or which may be
enacted in terms of the Constitution after the pressing into service
the said Article---Expression presupposes that the civil power is
still there which is neither supplanted nor effaced---Functions of
Armed Forces when called in aid of civil power stated.
Word "act" inter alia means exercise of power or effect of which

power exerted is cause, a performance etc. The word "aid" inter
alia, connotes help, assistance, strengthening, cooperation,
supplementing the efforts of others. Whereas the word "civil" has
its origin from Latin word "civilis" which denotes pertaining or
appropriate to a member of a civitas or free political community.
The word "power" inter alia means the rights, ability, authority or
faculty of doing something. The meaning of the words particularly
of "aid" does not admit replacement or substitution.
The expression that "subject to law" used in clause (1) of Article

245 connotes the law which may be in existence at the time of
invoking of Article 245 or which may be enacted in terms of the
Constitution after the pressing into service the above Article. The
existing law on the subject is, inter alia, sections 128; 129, 130,
131 and 131-A of the Criminal Procedure Code which are on the
statute book for quite some time.
Expression "in aid of civil power" presupposes that the civil power
is still there, it is neither supplanted nor effaced out. The civil
power is to be preserved and invigorated through the employment
of the Armed Forces, The Armed Forces can be called in aid under
clause (1) of Article 245 by the Federal Government, inter alia, to
perform Police function for limited purpose of suppressing riots or
preventing threatened disorder or for the purpose of maintaining
law and order and security or to assist/help in natural calamities
alongwith the civil Authorities. But the Armed forces cannot
abrogate, abridge or displace civil power of which Judiciary is an
important and integral part. In other words, the Armed Forces
cannot displace the Civil/Criminal Courts while acting in aid of
civil power. They can certainly arrest those who threaten or disturb
peace and tranquility. They may also assist in investigation of a
case and the prosecution of the same but the case is to be tried by a
Court established in terms of the judgment of Supreme Court in the
case of Mehram Ali PLD 1998 SC 1445. The employment of the
expression "subject to law" clearly demonstrates that the Armed
Forces will have to act within the parameters of the Constitution
and the law obtaining. The scope of the above power which is
exercisable by the Armed Forces in aid of the civil power can only
be enlarged by amending Article 245 of the Constitution.
Article 190 of the Constitution has also employed the expression

"shall act in aid of the Supreme Court" by providing that all
Executive and Judicial Authorities throughout Pakistan shall act in
aid of the Supreme Court. Can the Executive Authority, when
called in aid by the Supreme Court under the said Article,
substitute or displace it. The object of the above Article 190 seems
to be to assist or to help the Supreme Court in getting its directions,
orders and judgments implemented and executed.
Muhammad Umar Khan v. The Crown PLD 1953 Lah. 528; A.K.
Goplan v. State of Madras AIR 1950 SC 27; Sint. Indira Nehru
Gandhi v. Shri Raj Narain AIR 1975 SC 2299; Sint. Maneka
Gandhi v. Union of India and another AIR 1978 SC 597;
Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC
388 and Naga People's Movement of Human Rights v. Union of
India AIR 1998 SC 431 ref.
(g) Constitution of Pakistan (1973)
----Art.245---Pakistan Armed Forces (Acting in Aid of the Civil

Power) Ordinance (XII of 1998), S.3---Convening of Military
Courts under S.3, Pakistan Armed Forces (Acting in Aid of Civil
Power) Ordinance, 1998 to try civilians for civil offences---
Validity---Act of Parliament will not enable the Armed Forces to
perform the judicial functions unless same is founded on the power
conferred by a Constitutional provision---Civil power is to be
preserved 'and invigorated through the employment of the Armed
Forces.
(h) Constitution of Pakistan (1973)---
----Art. 245---Armed Forces called in aid of civil power---Power of

Legislature---Scope---Legislature, besides the laws which are ' in
field, can legislate on the subject covered by Art.245 but same
should be within the framework of the Constitution.
Besides the laws which are in the field, the Legislature is

competent to legislate on the subject covered by Article 245, but
the same should be within the framework of the Constitution.
So long as the Parliament acts within the parameters of the

Constitution, there is no restriction or prohibition to legislate on
any subjects which fall under the Federal and Concurrent
Legislative Lists.
(i) Constitution of Pakistan (1973)---
----Arts. 184(3) & 199---Vires of legislation---Law if validly

enacted cannot be struck down on ground of mala fides but the
same can be struck down on the ground that it was violative of a
Constitutional provision.
Federation of Pakistan and another v. Malik Ghulam Mus_tafa

Khar PLD 1989 SC 26 ref.
(j) Pakistan Armed Forces (Acting in Aid of the Civil Power)

Ordinance (X11 of 1998)--
----S. 3---Constitution of Pakistan (1973),. Art.245---Convening of

Military Courts under S.3, Pakistan Armed Forces (Acting in Aid
of the Civil Power) Ordinance, 1998 to try civilians for civil
offences---Validity---Establishment of Military Courts under the
Ordinance is violative of the Constitution ---Simpliciter the fact
that establishment of such Courts had contributed to some extent in
controlling the law and order situation or the factum of delay in
disposal of the criminal cases by the Courts existing under the
general laws or under the Special laws, would not justify validity
of such Courts.
(k) Constitution of Pakistan (1973)---
----Art. 6---High treason---Doctrine of necessity---Invocation---

Doctrine of necessity cannot be invoked if its effect is to violate
any provision of the Constitution particularly keeping in view Art.
6 of the Constitution.
(1) Constitution of Pakistan (1973)---
----Art. 237---Imposition of Martial Law in connection with the

maintenance or restoration of order in any area in Pakistan has
been done away with within the Constitution---Constitution of
Pakistan (1973) does not admit the imposition of Martial Law in
any form---Provision of Art.237 of the Constitution does not cover
indemnification for acts done during the period of Martial Law.
Constitution of the Islamic Republic of Pakistan, 1973, does not

admit the imposition of Martial Law in any form. This is indicated
from the language employed in Article 237 of the Constitution
which empowers the Parliament to make any law indemnifying any
person in the service of the Federal Government or a Provincial
Government, or any other person, in respect of any act done in
connection with the maintenance or restoration of order in any area
in Pakistan. But it does not cover indemnification for acts done
during the period of Martial Law.
The Parliament cannot make any law indemnifying any person in

the Federal Government or Provincial Government in respect of
any act done by him during the Martial Law period even for the
maintenance and restoration of order.
The imposition of Martial Law in connection with the maintenance

or restoration of order in any area in Pakistan has been done away
within the present Constitution.
(m) Constitution of Pakistan (1973)---
----Art. 245---Armed Forces called in aid of civil power---Marked

distinction exists between imposition of Martial Law which
envisages the taking over of the affected area by the Military
Authorities completely and invocation of Art.245 of the
Constitution of Pakistan where the Armed Forces are called,
subject to law, to act in aid of civil power.
Muhammad Umar Khan v. The Crown PLD 1953 Lah. 528 and
Abdul Sattar Khan Niazi's case PLD 1954 SC 187 distinguished.
(n) Constitution of Pakistan (1973)---

Power) Ordinance (XII of 1998), S.3---Pakistan Army Act
(XXXIX of 1952), . S.80--Convening of Military Courts under S.3,
Ordinance, 1998 and trial of civilians for the offences mentioned in
the Ordinance by any of the four types of Courts mentioned in
S.80, Army Act---Validity---Any other forum or procedure for the
trial of criminal offences committed by civilians, which does not fit
in within the scheme of the Constitution i.e. separation from the
Executive and independence of Judiciary, cannot be sustained in
the scheme of the Constitution---Separation and independence of
Judiciary being the hallmark of the Constitution, appointments in
the superior Judiciary and other actions relating to the working of
the same are to conform with the basic mandate of the
Constitution---Types of Courts as mentioned in S.80, Army Act,
1952, cannot be equated with normal Courts envisaged under the
Constitution.
Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506;
Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan
and others PLD 1996 SC 632; Government of Balochistan through
Additional Chief Secretary v. Azizullah Memon and 16 others PLD
1993 SC 341 and AI-Jehad Trust's case PLD 1996 SC 324 ref.

1445 rel.
(o) Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance (XII of 1998)--
----S. 3---Constitution of Pakistan (1973), Arts. 245, 9, 25, 175 &

203--Convening of Military Courts under S.3, Pakistan Armed
civilians for civil offences--Validity---Right to have access to
justice through independent Courts is a Fundamental Right and,
therefore, any law which makes a civilian triable for a civil
offence, which has no nexus with the Armed Forces or defence of
the country, by a forum which does not qualify as a Court in terms
of the law enunciated particularly in Mehram Ali's case PLD 1998
SC 1445, will--be violative of Arts. 9, 25, 175 & 203 of the
Constitution.

1445; Government of Balochistan v. Azizullah Menton PLD 1993
SC 341 and AlJehad Trust's case PLD 1996 SC 324 fol.
(p) Pakistan Army Act (XXXIX of 1952)--
----Ss. 81 & 80---Constitution .of Pakistan (1973), Art.245---

Ordinance (XII of 1998), S.3--Convening of Military Courts under
the Ordinance to try civilians for civil offences---Validity---
Civilian can be tried by a Military Court provided the offence with
which he is charged has nexus with the Armed Forces---In the
absence of a nexus between the alleged offence and the discipline
of the Armed Forces or defence, a citizen of Pakistan is entitled to
the trial by ordinary Criminal Courts under the Constitution except
in case of actual war when no Civil Courts in certain area may be
functioning.
O'Callahan v. Parker 89 SCt. 1683, 395 US 258; Reid v. Covert 77

SCt.1222, 354 US 1; Ex parte Milligan 71 US 2; Lloyd C. Duncan
v. Duke Paoa Kahanamoku 90 Law ed. 688 = 327 US 304; Brig.
(Reid.) F.B. Ali and another v. The State PLD 1975 SC 506 ref.
D.F. Marais v. The General Officer Commanding the Lines of

Communication and the Attorney-General of the Colony 1901 AC
109; Tilonko v. The Attorney-General of the Colony of Natal 1906
AC 93; Bugga and others v. The King-Emperor (1920) 47 IA 128;
Clifford and O'Sullivan (1921) 2 AC 570 and Rex v. Allen (1921)
2 IR 241 distinguished.
(q) Constitution of Pakistan (1973)---

Power) Ordinance (XII of 19:'8), S. 3---Military Courts convened
under S. 3, Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998 to try civilians for civil offences---
Validity---Convening of Military Courts for trial of civilians for
civil offences having no nexus with the Armed Forces .of defence
of Pakistan cannot be treated as an act incidental and ancillary
under Art.245(1) of the Constitution---Aid to the civil power is to
be rendered by the Army as a coercive apparatus to suppress the
acts of-terrorism, inter alia, by apprehending offenders and by
patrolling on the roads/streets where there is civil disorder or
disturbance of the magnitude which the civil power is unable to
control.
Convening of Military Courts for trial of civilians for civil

offences having no nexus with the Armed Forces or defence of
Pakistan cannot be treated as an act incidental and ancillary under
clause (1) of Article 245 of the Constitution. Scope of clause (1) of
Article 245 is to call the Armed Forces to act in aid of civil power.
Aid to the civil power is to be rendered by the Army a coercive
apparatus to suppress the acts of terrorism, inter alia, hr.
apprehending offenders and by patrolling on the roads/streets,
where there is civil disorder or disturbance of the magnitude which
the civil power is unable to control:
(r) Pakistan Armed Forces (Acting in Aid of the Civil Power)
----S. 3---Constitution of Pakistan (1973), Art.245(1) and Fourth

Sched., Federal Legislative List, Part I, Entries Nos. 1 & 59---
'Vtre~ of Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998 --Convening of Military Courts, under S.
3 of the Ordinance to try civilians four civil offences---Validity---
Power to legislate said Ordinance for establishing/convening
Military Courts cannot be spelt out from Art.245(1) nor that can be
derived from Entry No. l read with Entry No.59 of Part I of the
Fourth Sched. contained in the Federal Legislative List of the
Constitution--Military Courts, thus, cannot be established or
convened in substitution of the ordinary Criminal and Civil Courts.
The power to legislate the Pakistan Armed Forces (Acting in Aid

of the Civil Power) Ordinance. 1998 for establishing/convening
Military Courts cannot be spelt out from clause (1) of Article 245
nor it can be derived from Entry No. l read with Entry No.59 of
Part I of the Fourth Schedule contained in the Federal Legislative
List of the Constitution.
The perusal of Entry No.1 indicates that none of the items

mentioned therein can justify the legislation of a statute for setting
up pr convening the Military Courts for the trial of civilians for
civil offences. The residuary Entry No.59 providing for matters
incidental and ancillary to arty matter enumerated in Part I cannot
be treated as a source of power conferring competency on the
Legislature to legislate the Ordinance. Factually Entry No.55 in the
Federal Legislative. List deals with the subject of Courts by
providing that "Jurisdiction and powers of all Courts, except the
Supreme Court, with respect to any of the matters in this List and,
to such extent as is expressly authorised by or under the
Constitution, the enlargement of the jurisdiction of the Supreme
Court, and the conferring thereon of supplemental powers. "
This entry indicates that the Parliament can legislate in respect of

jurisdiction and power of all Courts except the Supreme Court with
respect to any of the matters in the aforesaid list but to such extent
as is expressly authorised by or under the Constitution. It also
indicates that the jurisdiction of the Supreme Court can be enlarged
but it cannot be curtailed.
Neither Article 245 of the Constitution nor Entry No. l of the

Federal Legislative List read with Entry No.59 empowers the
Legislature to legislate a statute which may establish or convene
Military Courts in substitution of the ordinary Criminal and Civil
Courts.
(s) Constitution of Pakistan (1973)---
----Fourth Sched., Federal Legislative List, Part I, Entry No 55---

Supreme Court---Jurisdiction of Supreme Court can be enlarged
but cannot be curtailed
(t) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Art. 190---Convening of

Military Courts under S. 3, Pakistan Armed Forces (Acting in Aid
of the Civil Power) Ordinance, 1998---Validity---Action in aid of
Supreme Court---Authority o: calling Armed Forces in Aid of Civil
Power does not empower the substitution or replacement by the
Armed Forces of a civil power.
It is true that the Armed-Forces can be called in aid of the

Judiciary. This conclusion is supported inter alia by Article 190 of
the Constitution which imposes Constitutional duty on all
Executive and Judicial Authorities throughout Pakistan to act in aid
of Supreme Court. But, calling in aid of civil power does not
empower the substitution or replacement by the Armed Forces of a
civil power.
(u) Pakistan Armed Forces (Acting in Aid of .the Civil Power)
Ordinance (XU of 1998)--
----S. 3---Constitution of Pakistan (1973), Art. 245(1)---Convening

of Military Courts under S. 3, Pakistan Armed Forces (Acting in
Aid of the Civil Power) Ordinance, 1998 to try civilians for civil
offences---Contention was that since the Military Courts dispose of
cases quickly and award severe punishments, it was a very
effective deterrent factor against commission of crimes hence the
convening of Military Courts---Validity---Held, weak agency for
detection of crimes and inefficient machinery for prosecution were,
inter alia, the cause of delay in disposal of criminal cases and
higher percentage of acquittal orders--Delay also occurred in
disposal of criminal cases on account of lapses on the part of some
of the Presiding Officers, but the main reason seemed to be heavy
pendency which warranted increase in the strength of the Courts---
Situation had to be, streamlined and made more efficient the
agency for detection of crimes, the machinery for prosecution and
the Courts in order to have better deterrent effect on criminals.
Contention was that since the Military Courts dispose of the cases
quickly and award severe punishments, it was a very effective
deterrent factor against commission of crimes.
Supreme Court observed that Court is conscious of the fact that the
law and order situation has deteriorated and that the criminal
instinct and propensity has penetrated in all walks of life so much
so even some of the personnel of State functionaries/agencies, who
are entrusted with the duty to protect life, property and honour of
citizens, either themselves actively participate in the commission of
heinous crimes or they provide .protective umbrella to the
criminals. Their credibility has been denuded to the extent that
victims of crimes usually do not approach them for their help and
protection .to which they are otherwise entitled to as a matter of
right under the Constitution. Keeping in view the situation, the
offenders accused of heinous crimes should not be allowed to
escape their punishment on mere technicalities if the Court is
otherwise satisfied about their guilt.
A weak agency for detection of crimes and an inefficient
machinery for prosecution are, inter alia, the cause of delay in
disposal of criminal cases and higher percentage of acquittal
orders. No doubt, that delay also occurs in disposal of criminal
cases on account of lapses on the ,part of some of the Presiding
Officers, but the main reason seems to be heavy pendency which
warrants increase in the strength of the Courts. This has to be
streamlined and made more efficient the agency for detection of
crimes, the machinery for prosecution and the Courts in order to
have better deterrent effect on criminals.
State through Advocate-General, Sindh, Karachi -v. Farman

Hussain and others PLD 1995 SC 1; Zeeshan Kazmi v. The State
PLD 1997 SC 267;
Mehram Ali and others v. Federation of Pakistan and others PLD

1998 SC 1445; Criminal Law, Criminology and Criminal
Administration Edited by K.D.Gaur and The Oxford Handbook of
Criminology Edited by Mike Maguire etc. ref.
(v) Constitution of Pakistan (1973)--
----Arts. 245 & 4---Pakistan Armed Forces (Acting in Aid of the

Civil Power) Ordinance (XII of 1998), S. 3---Convening of
Military Courts under S. 3, Pakistan Armed Forces (Acting in Aid
of the Civil Power) Ordinance, 1998 to try civilians for civil
offences---Validity---Right to have access to justice through
forums as envisaged by the Constitution, is a Fundamental Right---
Military Courts convened under S. 3, Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998 not falling
within the compass of law enunciated by Supreme Court in the
case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445,
the trial by such Military Courts of civilians for civil offences
which had no nexus with the Armed Forces or defence of Pakistan,
would be violative of the Constitution.
The right to have access to justice through the forums as envisaged

by the Constitution is a Fundamental Right.
The forum provided under the Pakistan Armed Forces (Acting in

Aid of the Civil Power) Ordinance, 1998 is not within the
parameters laid down by Supreme Court in the case of Mehram Ali
and others v. Federation of Pakistan and others PLD 1998 SC
1445. Military Courts do not fall within the compass of the law
enunciated in the above case, the trial by such Military Courts of
civilians for civil offences, which have no nexus with the Armed
Forces or defence of Pakistan would be violative of the
Constitution.

1998 SC 1445 rel.
(w) Pakistan Armed Forces (Acting in Aid of the Civil Power)

-----S. 3---Constitution of Pakistan. (1973), Arts. 8, 245(1) &

148(3)--Convening of Military Courts under S.3, Pakistan Armed
civilians for civil offences--Contention was that in view of Art.8(3)
of the Constitution, the other clauses of Art.8 were not applicable
to the Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance, 1998 as the said Ordinance related to members of the
Armed Forces for the purpose of ensuring proper discharge of their
duties mandated by Art.245(1) read with Art.148(3) of the
Constitution ---Validity--Held, provisions of Art.8(3)(a) of the
Constitution though did not apply to any law relating to members
of the Armed Forces of Pakistan or of the Police or of such other
forces as were charged with the maintenance of public order, for
the purpose of ensuring the proper discharge of their duties and to
maintain proper discipline but said provision did not empower the
Legislature to legislate the said Ordinance for providing a parallel
judicial system---Article 8 of the Constitution had nothing to do
with the question, as to whether the Military Courts could try
civilians for civil offences which had no nexus with the Armed
Forces---Principles.
Contention was that in view of clause (3) of Article 8 of the

Constitution, the other clauses of the said Article are not
applicable as the Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 is a law relating to members of the
Armed Forces for the purpose of ensuring proper discharge of their
duties mandated by clause (1) of Article 245 read with clause (3) of
Article 148 of the Constitution. Clause (2) of Article 8 of the
Constitution enjoins that the State shall not make any law which
takes away or abridges the rights so conferred and any law made in
contravention of this clause shall, to the extent of such
contravention, be void. Whereas clause (5) thereof postulates that
the rights conferred by Chapter relating to the Fundamental Rights
shall not be suspended except as expressly provided by the
Constitution. If clause (3) of Article 8 is to be viewed with
reference to the. above two clauses, it becomes evident that
paragraph (a). of clause (3) does not empower the Legislature to
legislate the said Ordinance for providing a parallel judicial
system. Paragraph (a) of clause (3) provides that the provision of
Article 8 shall not apply to any law relating to members of the
Armed Forces, or of the Police or of such other forces as are
charged with the maintenance of public order, for the purpose of
ensuring the proper discharge of their duties or the maintenance of
discipline among them. Paragraph (a) of clause (3) refers to any
law which may be in existence or which may be enacted in order to
enable the Armed Forces or other forces to discharge their duties
and to maintain proper discipline. It has nothing to do with the
question, as to whether the Military Courts can try civilians for
civil offences which have no nexus with the Armed Forces. The
Legislature can legitimately amend the Army Act or even to enact
a new law covering the working of the Armed Forces, Police or
other forces which may include the taking of disciplinary action
against the delinquents including trial within the parameters of
such law. In fact the Army Act and the Rules framed thereunder
are complete Code for regulating the working of the Army
including the maintenance of discipline and for punishment for
civil and criminal wrongs. Not only clause (3) of Article 8 but
clause (3) of Article 199 expressly excludes the jurisdiction of the
High Court from passing any order for the enforcement of any of
the Fundamental Rights conferred by Chapter 1 of Part II of the
Constitution on the application made by or in relation to a person
who is a member of the Armed Forces of Pakistan, or who is, for
the time being, subject to any law relating to any of those Forces,
in respect of his terms and conditions of service, in respect of any
matter arising out of his service, or in respect of any action taken in
relation to him as a member of the Armed Forces of Pakistan or as
a person subject to such law.
(x) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Arts. 4 & 9---Convening

of Military Courts under S.3, Pakistan Armed Forces (Acting in
Aid of the Civil Power) Ordinance, 1998 to try ;civilians for civil
offences and award of death sentence by such Military Courts to
civilians for civil offences---Validity---Held, no action detrimental
to the life, liberty, body, reputation or property of any person was
to be taken except in accordance with law and no person was to be
deprived of life or liberty save in accordance with law---Since such
Military Courts did not fit in within the framework of the
Constitution, if a person was to be deprived of his life on account
of execution of death sentence awarded by a Tribunal which did
not fit in within the framework of the Constitution, same will be
violative of Fundamental Right contained in Art.9 of the
Constitution.
Clause (1) of Article 4 of the Constitution provides that to enjoy

the protection of law and to be treated in accordance with law is the
inalienable right to every citizen, wherever he may be, and of every
other person for the time being within Pakistan. Whereas clause (2)
thereof lays down that in particular no action detrimental to the
life, liberty, body, reputation or property of any person shall be
taken except in accordance with law. Article 4 is to be read with
Article 9 of the Constitution which postulates that no person shall
be deprived of life or liberty save in accordance with law. If a
person is to be deprived of his life on account of execution of death
sentence awarded by a Tribunal which does not fit in within the
framework of the Constitution, it will be violative of the
Fundamental Right contained in Article 9. It was contended that in
fact terrorists who kill innocent persons violate Article 9 by
depriving them of their lives and not the Federal Government
which caused the promulgation of Pakistan Armed Forces (Acting
in' Aid of the Civil Power) Ordinance, 1998 with the object to
punish terrorists. No patriotic Pakistani can have any sympathy
with terrorists who deserve severe punishment, but the only
question at issue is, which forum is to award punishment, i.e.
whether a forum as envisaged. by the Constitution or by a Military
Court which does riot fit in within the framework of the
Constitution. No doubt, that when a terrorist takes the life of an
innocent person, he is violating Article 9 of the Constitution, but if
the terrorist, as a retaliation, is deprived of his, life by a mechanism
other than through due process of law within the framework of the
Constitution, it will also be violative of Article 9.
(y) Pakistan Armed Forces (Acting in Aid of the Civil Power)

-----Ss. 3, 6 & Sched.---Constitution of Pakistan (1973), Art.25---

Convening of Military Courts under S.3, Pakistan Armed- Forces
(Acting in Aid of the Civil Power) Ordinance, 1998 to try civilians
for civil. offences with discretion to the Federal Government to
pick and choose cases for referring to such Military Courts---
Validity---No mandatory provision had been provided in the
Ordinance to the effect that all the offences mentioned in S.6 of the
Ordinance and the Schedule was triable by the Military Courts
convened under S.3 of the Ordinance---Effect---Pakistan Armed
Forces (Acting in Aid of the Civil Power) Ordinance, 1998, was,
therefore, violative of Art.25 of the Constitution.
Pakistan Armed Forces (Acting 'in Aid of the Civil Power)

Ordinance, 1998 is violative of Article 25 of the Constitution,
inasmuch as it gives discretion to the Federal Government under
section 3 thereof to pick and choose cases for referring to the
Military Courts. There is no mandatory provision providing that all
the offences mentioned in section 6 and the Schedule shall be
triable by the Military Courts convened under section 3 of the
Ordinance.
I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and
1998 SC 1445 distinguished.
(z) Pakistan Armed Forces (Acting in Aid of the Civil Power)

--Preamble [as amended by Pakistan Armed Forces (Acting. in Aid

of the Civil Power) (Amendment) Ordinance (1 of 1999)]---
Constitution of Pakistan (1973), Arts 245 & 232(2)---Amendment
of Preamble to Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998 by Amending Ordinance 1 of 1999---
Effect---Amendment of Preamble to the Ordinance had extended
the Ordinance to whole of Pakistan and, thus, Military Courts
could be established/convened throughout Pakistan without
reference to the objects contained in the original Preamble to the
Ordinance---Supreme Court while taking judicial notice of the
situation observed that Federal Government intended to establish a
parallel judicial system throughout Pakistan.
Original Preamble to the Pakistan Armed Forces (Acting in Aid of

the Civil Power) Ordinance, 1998 provided that "Whereas. it is
expedient to enumerate the powers and duties of the Armed Forces
acting in aid-of civil power for the achievement of the objects of
the Order made under paragraph (c) of clause k2) of Article 232 of
the Constitution of the Islamic Republic of Pakistan on the 30th
October, 1998". Article 245 of the Constitution was invoked for
Karachi on 20-11-1998 through Notification SRO 1304(1)/98,
dated 20-11-1998 issued by the Ministry of Interior for maintaining
law and order and security within the limits of the Karachi
Division by the Armed Forces through another Notification SRO
1316(1)/98, dated 27-11-1998 was issued for invoking Article 245
of the Constitution for the above purpose in respect of remaining
four Divisions of Sindh, namely, Hyderabad, Mirpur Khas, Sukkur
and Larkana, but Article 245 was not invoked in respect of other
Provinces of Pakistan or any part thereof. The original Preamble to
the Ordinance described the purpose of the Ordinance as to achieve
the objects of the Order made under paragraph (c) of clause (2) of
Article 232 of the Constitution of the Islamic Republic of Pakistan
on 30-10-1998, whereby the Federal Government had authorised
the Governor to take the executive function of the Province of
Sindh. These two notifications under Article 245 of the
Constitution pertaining to Sindh were issued to achieve the
objective as stated above. However. on account of amendment in
the Preamble, whereby the words "for the achievement of the
objects of the Order made under paragraph (c) of clause (2) of
Article 232 of the Constitution of the Islamic Republic of Pakistan
on 30-10-1998" have been omitted, the scope of the Ordinance has
been extended to the whole of Pakistan and, thus, now Military
Courts can be established/ convened throughout Pakistan without
reference to the objects contained in the original Preamble to the
Ordinance. This factum lends support to the ,contention that the
Federal Government intends to establish a parallel judicial system
throughout Pakistan.
(aa) Criminal Procedure Code (V of 1898)---
----S. 497, third proviso---Grant of bail to accused as a matter of

right on expiry of certain period---Effect---Supreme Court
observed that provision of granting bail as a matter of right having
been misused needed to be deleted as said provision was also
substantially contributing towards the delay in the disposal of
criminal cases.
Third proviso to section 497 of the Criminal Procedure Code is

also substantially contributing towards the delay in the disposal of
criminal cases as it entitles an accused person accused of an
offence not punishable with death tar obtain bail on the expiry of
one year from the date of his arrest, and in case of an offence
punishable, with death on the expiry of two years period from the
date of his arrest. Some of the accused persons by their design
ensure that the trials of their cases are delayed, so that they may
come out of jails on the expiry of the above statutory periods. The
above provision has been misused and the same needs to be
deleted. Even before the incorporation of the above proviso, it was
open to a Court to grant bail in a fit case on the ground of
inordinate delay in the trial of a case, but no accused person was
entitled to claim bail as a matter of right on the expiry of certain
period.
Per Saiduzzaman Siddiqui, J.-
(bb) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----Preamble---Interpretation and scope of the Ordinance.
(cc) Constitution of Pakistan (1973)---
----Art. 245---Legislative background of Art.245 recorded.
(dd) Constitution of Pakistan (1973)---
----Art. 184(3)---Expression "public importance" occurring in

Art.184(3) of the Constitution ---Interpretation--Test to determine
the element of "public . importance".
"Public importance" refers to something which is to be shared or

participated in or enjoyed by the public-at-large, and is not limited
or restricted to any particular class of the community. While
construing the words public. purpose such a phrase whatever else it
may mean must include a purpose that is an object or aim, in which
the general interest of the community, opposed to the particular
interest of individuals, is directly and vitally concerned.
In order to acquire public importance the case must obviously raise
a question which is of interest to, or affects the. whole body of
people or an entire community. In other words, the case must be
such as gives rise to questions affecting the legal rights or
liabilities of the public or the community-at-large, even though the
individual, who is the subject-matter of the case, may be of no
particular consequence.
It is not often that a single case raises so many questions of public

importance touching the liberty of the citizen. In all systems of law
which cherish individual freedom and liberty which provide
Constitutional safeguards and guarantees in this behalf, any
invasion of such freedom in circumstances which raise serious
questions regarding the effectiveness and availability of those
safeguards, must be regarded as a matter of great public
importance.
Consideration of the connotation of the expression "public

importance" which is tagged to the enforcement of the
Fundamental Rights as a pre-condition of the exercise of the power
under Article 184(3), should not be understood in a limited sense,
but in the gamut of the Constitutional rights of freedoms and
liberties, their protection and invasion of such freedoms in manner
which raises a serious question regarding their enforcement. Such
matters can be viewed as of public, importance, whether they, arise
from an individual's case touching his human rights of liberty and
freedom, or of a class or a group of persons as they would also be
legitimately covered by this expression.
Whether a particular case involved the element of "public

importance" is a question which is to be determined by the Court
with reference to the facts and circumstances of each case. There is
no hard and fast rule that an individual grievance can 'never be
treated as a matter involving question of public importance.
Similarly it cannot be said that a case brought by a large number of
people should always be considered as a case of ".'public
importance" because a large body of persons is interested in the
case. The public importance of a case is determined by decision on
questions affecting the legal rights and liberties of the people-at-
large, even though the individual who may have brought the
chatter before the Court is of no significance. Public importance
should be viewed with reference of freedom and liberties
guaranteed under Constitution, their protection and invasion of
these rights in a manner which raises a serious question regarding
their enforcement, irrespective of the fact whether such infraction
of right, freedom or liberty is ,alleged by an individual or a group
of individuals.
(ee) Constitution of Pakistan (1973)---
----Art. 194(3)---Pakistan Armed Forces (Acting in Aid of the Civil

Power) Ordinance (XII of 1998), Ss. 3 & 6---Convening of
Military Courts to try persons charged with offence of "civil
commotion'," under S.3, Pakistan Armed Forces (Acting in Aid of
the Civil Power) Ordinance, 1998---Constitutional petitions before
Supreme Court under Art.184 (3)---Maintainability---Question of
public importance---Contentions were that as a result of
establishment of Military Courts for trial of civilian population and
promulgation of Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998, the right of the people in general to be
tried by the ordinary Courts established by law for trial of civil
offences had been taken away which was guaranteed under the
Constitution and that creation of Military Courts for trial of civil
population violated against the independence of Judiciary---
Validity---Held, questions raised were not only concerned the
entire civil population of the country but also affected the rights
and civil liberties of the entire population guaranteed under the
Constitution and, thus, were of public importance---Questions
raised in the petitions that the civil population has a right to be
tried by an independent and impartial Civil Court established under
the authority of law, has been negated by the establishment of
Military Courts for trial of civilian population and that the
establishment of Military Courts militates against the concept of
independence of Judiciary are not only questions of great public
importance but also relate to the endorsement of Fundamental
Rights of the entire civil population under the Constitution---
Petitions under Art. 184(3) of the Constitution, thus, were
maintainable.
The petitioners in the present case have alleged that as a result of
establishment of ,Military Courts for trial of civilian population
and promulgation of Ordinance XII of 1998, the right of the people
in general to be tried by the Ordinary Courts established by law for
trial of civil offences has been taken away which is guaranteed
under the Constitution. It is also alleged that the creation of
Military Courts for trial of civil population militates against the
independence of Judiciary. The above questions raised in the
petitions not only concern the entire civil population of the country
but they also affect the rights and civil liberties of the entire
population guaranteed under the Constitution. The questions raised
in these petitions are of great public importance.
The questions raised in these petitions, that the civil population has
a right to be tried by an independent and impartial Civil Court
established under the authority of law, has been negated by the
establishment of Military Courts for trial of civilian population and
that the establishment of Military Courts militates against the
concept of independence of Judiciary, are not only questions of
great public importance but they also relate to the enforcement of
fundamental rights of the entire civil population guaranteed under
the Constitution. Petitions are maintainable under Article 184(3) of
the Constitution.
(ff) Constitution of Pakistan (1973)---
----Arts. 184(3) & 199---Constitutional petition before Supreme

Court under Art.184(3) of the Constitution---Maintainability---
Principles---Locus standi of petitioner---Significance---Nature of
proceedings under Art.184(3) and proceedings under Art.199 of the
Constitution---Distinction---Scope of Art. 184(3) analysed.
To maintain a petition under Article 184(3) of the Constitution, it is

not necessary that infraction of any fundamental right of the
petitioner/individual must be established. The question of
infringement of the fundamental right of the individual is relevant
in proceedings under Article 199 of the Constitution with reference
to his locus standi to maintain the proceedings. In contradistinction
to the proceedings under Article 199 of the Constitution, the
question of locus standi of the petitioner is hardly of any
significance in a petition filed under Article 184(3) of the
Constitution. The stress in proceedings under Article 184(3) of the
Constitution is more on the "public importance" of the question
raised in the proceedings. Therefore, some times a complaint
regarding violation of the fundamental right of an individual may
give rise to a question which may affect the entire community, or
the whole population, thus, making it a case fit for cognizance
under Article 184(3) of the Constitution while in another case the
violation of the fundamental rights of a large number of people
may not affect the whole community or the entire population
thereby rendering the question not fit for adjudication under Article
184(3) of the Constitution. The condition that the petition filed
under Article 184(3) of the Constitution must relate to the
enforcement of any of the fundamental rights, does not necessarily
mean or refer to the enforcement of the fundamental right of the
petitioner or an individual who moves the Court under Article
184(3) of the Constitution. Reference to enforcement of
fundamental rights in Article 184(3) implies a fundamental right in
enforcement whereof the whole community or
public-at-large is interested.
The proceedings under Article 199 of the Constitution before the

High Court are subject to various constraints mentioned in the said
Article. However, the proceedings before Supreme Court under
Article 184(3) of the Constitution differ in various ways from the
proceedings before the High Court under Article 199 of the
Constitution. For instance, a person may be non-suited by the High
Court in proceedings under Article 199 of the Constitution on the
ground that he has no personal grievance, and therefore, he is not
an aggrieved person. A petitioner before Supreme Court under
Article 184(3) of the Constitution, may not have a personal
grievance in the case, but if he satisfies the Court that question
raised by him is of public importance and it relates to enforcement
of fundamental rights guaranteed under the Constitution of a
reasonably large section of people, he can successfully maintain
the petition. The proceedings before Supreme Court under Article
184(3) of the Constitution are in the nature of a public interest
litigation in contradistinction to the proceedings before the High
Court where the litigant seeks redress of his personal grievance and
injury. Therefore, the scope and nature of proceedings, before
Supreme Court under Article 184(3) of the Constitution differ in
many ways from the proceedings before the High Court under
Article 199 of the Constitution. The trappings and constraints
provided in Article 199 of the Constitution on the exercise of
power by the High Court, are therefore, not applicable to Supreme
Court under Article 184(3) of the Constitution.
Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.
(gg) Constitution of Pakistan (1973)---
----Art. 9---"Right of access to justice to all" is a fundamental right

guaranteed under Art.9 of the Constitution.
"Right of access of justice to all" means "that every citizen should

have equal opportunity and right to approach the Court., without
any discrimination"
The right to access to justice to all is a well recognised inviolable

right enshrined. in Article 9 of the Constitution. This right is
equally found in the doctrine of due process of law- The right of
access to justice includes the right to be treated according to law,
the right to have a fair and proper trial and a right to have an
impartial Court or Tribunal.
"Right of access to justice to all" is a fundamental right guaranteed

under Article 9 of the Constitution
Without having an independent Judiciary, the Fundamental Rights

enshrined in the Constitution will be meaningless and will have no
efficacy or beneficial value to the public-at-large.
Right of access to impartial and independent Court/Tribunal is a
fundamental right of every citizen. The existence of this right is
dependant on the independence of Judiciary
Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Kar. 404;

Government of Balochistan v. Azizullah Memon PLD 1993 SC
341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324
and Malik As_ad Ali v. Federation of Pakistan PLD 1998 SC 161
ref.
(hh) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. ;---Constitution of Pakistan (1973). Arts. 148(3) & 8(3)---

Convening of Military Courts to try persons charged with offence
of "civil commotion" under S.3, Pakistan Armed Forces (Acting in
Aid of the Civil- Power) Ordinance, 1998---Validity---Contentions
were that validity of Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 could not be challenged being
protected under Art.8(3) of the Constitution and that Federal
Government having acted in discharge of its Constitutional
obligation under Art. 148(3) of the Constitution, its actions could
not be called in question before any Court---Held, neither Art. 148
nor any other provision of the Constitution had provided such
immunity to actions of the Federal Government.
(ii) Constitution of Pakistan (1973)---
---Arts. 184(3) & 245(3)---Constitutional petition before Supreme

Court under Art. 184(3) of the Constitution---Maintainability---
Provision of Art.245(3) of the Constitution which suspends the
jurisdiction of High Court under Art. 199 of the constitution of
Pakistan for such period the Armed Forces act in aid of civil power
is not attracted to proceedings under Art. 1840) of the Constitution.
(jj) Pakistan Armed Forces (Acting in Aid of the Civil Power)
---Preamble---Constitution of Pakistan (1973), Art.8(3)---Vires of

Ordinance, 1998---Contention was that since the Ordinance
enumerated the powers and duties of the Armed Forces acting in
aid of civil power, the Ordinance was a law relating to Armed
Forces which had been promulgated to ensure proper discharge of
their duties while acting in aid of civil power and as such even if
provisions of the Ordinance were found to be in derogation of any
of the rights conferred by Chap. 1 of Part II of the Constitution,
Ordinance could not be questioned in view of provisions of
Art.8(3) of the Constitution---Held, since Armed Forces admittedly
were not part of the judicature, the Ordinance vesting the Armed
Forces with power to hold trial of civilians in respect of offences
which were not connected with Armed Forces, was not immune
from scrutiny under Art.8(3)(a) of the Constitution.
In the present case the contention in substance is, that Pakistan

Armed Forces (Acting in Aid of the Civil Power) .Ordinance, 1998
enumerates the powers and duties of the Armed Forces acting in
aid of civil power as is evident from the Preamble of the
Ordinance. It is, accordingly. argued that the Ordinance is a law
relating to Armed Forces which has been promulgated, to ensure
proper discharge of their duties while acting in aid of civil power
and as such even if its provisions are found to be in derogation of
any of the rights conferred by Chapter I of Part 11 of the
Constitution, it cannot be questioned in view of the provisions of
Article 8(3) of the Constitution.
Clause (1) of Article 8 of the Constitution declares all laws,

customs or usages having the force of law void to the extent they
are inconsistent with the rights conferred by Chapter I (Articles 8
to 28) of Part lI of the Constitution. Clause (2) of Article 8,
prohibits the State to enact any law which takes away or abridges
the rights conferred by Chapter 1, Part 11 and further declares that
any law made by the State in. contravention of the above
prohibition will be void to the extent of such contravention. Sub-
clause (a) of clause (3) of Article 8, is in the nature of a proviso or
an exception to clauses (1) and (2) of Article 8. It provides that any
law enacted to ensure the proper discharge of the duty or
maintenance of discipline amongst the members of the Armed
Forces, a Police Force or any other force charged with the duty of
maintaining public order, will he out of the purview of Article 8 of
the Constitution. It is well-settled rule of interpretation that the
proviso or an exception to the main enacting part is to be construed
strictly. Therefore, unless the case falls strictly within the letter and
spirit of the proviso or exception, it will be covered by the main
enacting part. A careful reading of sub-clause (a) of clause (3) of
Article 8 shows that in order to take a legislation out of the
purview of clauses (1) and (2) of Article 8 of the Constitution two
conditions must be satisfied. Firstly, the legislation must relate to
Armed Forces or a Police Force or a Force charged with the
maintenance of public order and, secondly, the purpose of
legislation must be to ensure proper discharge of their duties or
maintenance of discipline among them. The concern here is with
interpretation of the word "duties" used in Article 8(3)(a) of the
Constitution with reference to Armed Forces which have been
called in aid of civil power. The word "duties" in this context
would mean duties which can be lawfully assigned to or discharged
by the Armed Forces either under the Constitution or under any
law. There is no difficulty in holding that the Pakistan Armed
Forces (Acting in Aid of the Civil Power) Ordinance, 1998
satisfies the above first condition as the legislation relates to
Armed Forces. However; the ordinance fails to satisfy the second
condition mentioned in Article 8(3)(a). Reliance has been placed
on the preamble of the Ordinance which states "whereas it is
expedient to enumerate the powers and duties of the Armed Forces
acting in aid of civil power, under Article 245 of the Constitution
of Pakistan for the purpose of security, maintenance of law and
order, and restoration of peace", in support of the contention that
the Ordinance also satisfies the second condition mentioned in
Article 8(3)(a). No doubt, the preamble of the Ordinance does state
that the object of legislation is to enumerate the powers and duties
of Armed Forces acting in aid of civil power for the purposes of
security, maintenance of law and order, and restoration of peace,
but the preamble can neither restrict nor control the meaning of the
enacting part of the Statute. If the enacting part of the Statute goes
beyond the preamble it is the enacting part which prevails and not
the preamble. The preamble of the Ordinance shows that the
Armed Forces have been called in aid of civil power under Article
245 of the Constitution for purposes of security, maintenance of
law and order, and restoration of peace. Now if we go to the
enacting part of the Ordinance which consists of sections 1 to 14, it
shows that the Armed Forces have been vested with powers to
convene Courts for trial of civilians charged with the offences
specified in the Ordinance. Can the provision in the Ordinance
vesting the Armed Forces with power to try civilians for offences
.not connected with Armed Forces, be termed as a law which
ensures proper discharge of their duties? To answer this question,
one must look to the Scheme of the Constitution which is based on
the principle of trichotomy of power, meaning thereby that the
power is divided between Executive, the Legislature and the
Judiciary. Each of these three limbs of the State enjoys complete
independence in their own sphere. Since the Armed Forces
admittedly are not part of the judicature, the Ordinance vesting the
Armed Forces with power to hold trial of civilians in respect of
offences which are not connected with Armed Forces is not
immune from scrutiny under Article 8(3)(a) of the Constitution.
(kk) Constitution of Pakistan (1973)--- .
----Art. 8(3)---Scope, application and interpretation of Art.8(3) of

the Constitution.
(ll) Interpretation of statutes---
---- Proviso or exception to a section---Construction---Proviso or

an exception to the main enacting part is to be construed strictly---
Unless the case falls strictly within the letter and spirit of the
proviso or exception, same will be covered by the main enacting
part.
(mm) Interpretation of statutes---
---- Preamble---Function---Preamble can neither restrict nor

control the meaning of the enacting part of the statute---If the
enacting part of the statute goes beyond the Preamble, it is the
enacting part which prevails and not the Preamble.
(nn) Pakistan Armed Forces (Acting in Aid of the Civil Power)
Ordinance (XII of 1998)-
----Ss. 3 & 6---Constitution of Pakistan (1973). Arts. 175(3), 202,

203 & 245--Establishment and jurisdiction of Courts---Convening
of Military Courts to try persons charged with offence of civil
commotion under S.3, Pakistan Armed Forces (Acting in Aid of
the Civil Power) Ordinance, 1998---Whether setting up of such
Military Courts for trial of civilians for offences not connected
with Armed Forces were Constitutionally valid---Held, creation of
Courts outside the Constitution and supervision of Supreme Court
or the High Courts, not only militated against the independence of
Judiciary but negated the principle of trichotomy of power which
was the basic feature of the Constitution---Armed Forces,
therefore, could not be assigned the function of Judiciary which
was separated from the Executive---Concept of establishment of
temporary Courts or Tribunals-to perform judicial functions
outside the hierarchy of judicature, was not permissible in the
scheme of the Constitution---Principles.
Constitution is based on the theory of trichotomy of power which

makes the three limbs of the State, the Legislature, the Executive
and the Judiciary, independent of each other in their respective
spheres. Chapter 1 of Part VII of the Constitution deals with the
judicature. The judicature according to Article 175(1) of the
Constitution, consists of the Supreme Court, a High Court for each
Province and such other Courts as may be established by law. The
Courts created under Article 175(1)-exercise such jurisdiction
which is conferred on them either by the Constitution or by or
under any law as provided in Article 175(2). The Judicature stands
separated from the Executive as provided in Article 175(3) of the
Constitution. Creation of Courts outside the control and
supervision of Supreme Court or the High Courts, therefore, not
only militates against the independence of judiciary but it also
negates the principle of trichotomy of power which is the basic
feature of the. Constitution.
Chapter 2 of Part XI (Articles 243 to 245) of the Constitution deals
with the Armed Forces of Pakistan. The command and control of
Armed Forces vests with the Federal Government under Article
243 of the Constitution and the President, who is declared to be the
Supreme Commander of the Armed Forces, has been given power
to raise and maintain the Military, Naval and Air Forces of
Pakistan and Reserve Forces subject to law. The President is also
authoyized to grant commission in the Forces, besides appointing
Chairman Join[ Chief of Staff Committee, the Chief of Army,
Naval and Air Staff and determine their salaries and allowances.
Article 244 provides for oath of every member of Armed Forces
Article 245 of the Constitution defines functions of Armed Forces.

A careful study of Articles 243 to 245 of the Constitution leaves no
doubt that the Armed Forces are part of the Executive Authority of
the State. It, therefore, follows that Armed Forces cannot be
assigned the function of Judiciary which is separated from the
Executive as envisaged by Article 175(3) of the Constitution.
Attempt was made at the Bar to distinguish the establishment of

Military Courts by describing them as temporary in nature and not
falling within the purview of Courts established under Article
175(1) of the Constitution. The attempt was self-defeating. If the
Military Courts, as contended - are not established Courts as
contemplated by Article 175(1) of the Constitution, they cannot be
conferred jurisdiction to try an accused which is part of the
function of Judiciary. To hold trill of a person accused of an
offence is undoubtedly a judicial function which cannot be
performed but by a Court which is a part of the judicature. The
concept of establishment of temporary Courts or Tribunals to
perform judicial functions outside the hierarchy of judicature is not
permissible in our Constitutional Scheme. Federal Shariat Court,
Service Tribunals and Election Tribunals are firstly, the creature of
the Constitution and not established under a sub-Constitutional
legislation. Secondly, from the judgments of .each one of these
Courts, the matter can be brought before the superior Judiciary in
one form or the other. For instance from the order of Service
Tribunal an appeal lies to the Supreme Court of Pakistan under
Article 212(3) of the Constitution. The judgments and orders
passed by Federal Shariat Court are appealable before Supreme
Court under Article 203-F of the Constitution. Similarly, from the
order/judgment of the Election Tribunal an appeal is provided to
the Supreme Court under section 67(3) of Representation of the
People Act, 1976. Therefore, no parallel can be drawn between the
Military Courts, which have been conferred exclusive jurisdiction
and their judgments are made immune from attack before the
superior Courts, under the Ordinance, and the Federal Shariat
Court, the Service Tribunal and the Election Tribunal established
under the authority of the Constitution and whose judgments are
not immune from scrutiny before the Supreme Court.
Articles 175, 202 and 203 of the Constitution provide a framework

of Judiciary i.e. the Supreme Court, a High Court for each Province
and such other Courts as may be established by law.
The words "such other Courts as may be established by law"

employed in clause (1) of Article 175 of the Constitution are
relatable to the subordinate Courts referred to in Article 203
thereof.
Constitution recognizes only such specific Tribunal to share

judicial powers with the above Courts, which have been
specifically provided by the Constitution itself Federal Shariat
Court (Chapter 3-A of the Constitution). Tribunals under Article
212, Election Tribunals (Article 225). It must follow as a corollary
that any Court or Tribunal which is not founded on any of the
Articles of the Constitution cannot lawfully share judicial power
with the Courts referred to in Articles 175 and 203 of the
Constitution.
In view of Article 203 of the Constitution read with Article 175

thereof the supervision and control over the subordinate Judiciary
vests in High Courts, which is exclusive in nature, comprehensive
in extent and effective in operation.
The hallmark of Constitution is, that it envisaged separation of the

Judiciary .from the Executive (which is founded on the Islamic
Judicial System) in order to ensure independence of Judiciary and,
therefore, any Court or Tribunal which is not subject to judicial
review and administrative control of the High Court and or the
Supreme Court does not fit in Within the judicial framework of the
Constitution.
The right of "access to justice to all" is a fundamental right, which

right cannot be exercised in the absence of an independent
Judiciary providing impartial, fair and just adjudicatory framework
i.e. judicial hierarchy. The Courts/Tribunals which are manned and
run by Executive Authorities without being under the control and
supervision of the High Court in terms of Article 203 of the
Constitution can hardly meet the mandatory requirement of the
Constitution.
The independence of Judiciary is inextricably linked and connected

with the process of appointment of Judges and the security of their
tenure and other terms and conditions.
(oo) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----Ss. 3 & 6---Constitution of Pakistan (1973), Art.245---

Convening of Military Courts to try persons charged with offence
of civil commotion under S.3, Pakistan Armed Forces (Acting in
Aid of the Civil Power) Ordinance, 1998--Justification ---To
justify the establishment of such Military Courts support must be
found from the provisions of the Constitution.
The contention was that establishment of Military Courts is a

temporary phenomenon necessitated by the grave situation created
by the terrorists in the city of Karachi and, therefore, establishment
of these Courts should not be treated as a displacement or
substitution of normal judicial process which will stand revived as
soon as the present situation is brought under control. On these
premises, it was further contended that the setting up of Military
Courts in Karachi be viewed in this perspective and treated as a
step to support or revamp the judicial system which had lost its
effectiveness in the prevailing circumstances. Held, a Government
established under the Constitution must not deviate from a
Constitutional path and must find solution to all its, problems
within the framework of the Constitution. Therefore, to justify the
establishment of Military Courts support must be found from the
provisions contained in the Constitution.
(pp) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----Ss. 3 & 6---Constitution of Pakistan (1973), Art.245---

Convening of Military Courts to try persons charged-with offence
of civil commotion under S.3, Pakistan Armed Forces (Acting in
Aid of the Civil Power) Ordinance, 1998--Validity---Role of
Armed Forces called in aid of civil power under Art.245 of the
Constitution---Expression "act in aid of civil power"---
Connotation---While invoking the provisions of Art.245,
Constitution of Pakistan the consequences flowing from imposition
or proclamation of Martial Law, would not follow--Armed Forces
cannot supplant, supersede or act in substitution of the Civil Courts
but can only perform those acts which would provide strength and
.support to the existing system of Civil Courts---Held,
establishment of Military Courts under Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998 for trial of
civilians for offences mentioned in the Schedule to the said
Ordinance was invalid, inconsistent and outside the scope of
Art.245 of the Constitution.
Martial Law also means, an inherent attribute of sovereignty, the

right of every Government to take whatever steps are necessary for
its own preservation. The question which arises for consideration,
however, is, whether the above concept of Martial Law is to be
taken as inherent in the working of every Constitutional
Government? A Government functioning under a written
Constitution derives its powers and strength from the provisions of
the Constitution. Therefore, unless the Constitution either
expressly or by necessary implication recognizes these concepts of
Martial Law, the same cannot form part of the Constitutional
Scheme. It is significant that in the. two previous Constitutional
documents, the Constitution of Islamic Republic of Pakistan, 1956
and the Constitution of Republic of Pakistan, 1962 under which the
country was governed in the past, specific provision under Article
196 and Article 233-A respectively, existed which authorised the
Parliament to enact laws indemnifying any person in the service of
Federal or Provincial Governments or any other person in respect
of act done in connection with the maintenance or restoration of
order in any area in Pakistan where Martial Law was in force,
validating any sentence passed, punishment inflicted, forfeiture
ordered or other acts done under Martial Law in such area. Even
the Interim Constitution of 1972 contained similar provision
indemnifying the acts done during Martial Law, under its Article
278. However, when the Constitution was framed the words
'Martial Law' were deliberately omitted from Article 237 which
authorised the Parliament to enact law indemnifying the acts of
person in the service of the Federal Government or Provincial
Government, or any other person, in respect of act done in
connection with the maintenance or restoration of order in any area
in Pakistan. Not only that, Article 6 of the Constitution defined
High Treason, as an act to abrogate or attempt or conspire to
abrogate or subvert the Constitution by use of force or by other un-
Constitutional mean and punishment for it is to be prescribed under
an Act of the Parliament.
Martial Law in its above jurisprudential concept, cannot be treated

as part of the Constitutional Scheme of the Constitution.
Accordingly. it follows that while invoking the provisions of
Article 245 of the Constitution the consequences flowing from
imposition or proclamation of Martial Law would not follow. The
question then arises what is the role of Armed Forces called in aid
of the civil power under Article 245 of the Constitution. The key
words in Article 245 of the Constitution are "act in aid of civil
power". The expression "civil power" means the total structure of
the State. The words "civil power" consist of the Executive, the
Legislature and the Judiciary. The Judiciary which is one of the
limbs of the State and is separate and independent from Executive,
is functioning normally and the Courts established under the
Constitution and established by law are open and discharging their
functions as usual. The Armed Forces have been called by the
Federal Government to meet the challenge of deteriorating law and
order situation. It is axiomatic that one who is called in aid cannot
act in supersession or substitution of the one which called it in aid.
The expression "act in aid" necessarily implies continuation and
existence of the one which called the other to act in its aid. To act
in aid only means to provide strength and support and not to
substitute or supplant, Therefore, even if it is assumed that the
Armed Forces were called in aid of the Civil Courts, they could not
supplant, supersede or act in substitution of the Civil Courts. While
acting in aid of Civil Courts, they could only perform those acts
which would provide strength and support to the existing system of
Civil Courts.
The expression "in aid of civil power" implies that deployment of

the Armed Forces shall be for the purpose of enabling the civil
power to deal with the situation affecting maintenance of public
order which has necessitated the deployment of the Armed Forces.
The word "aid" postulates the continued existence of the authority
to be aided. This would mean that even after deployment of the
Armed Forces the civil power will continue to function. The power
to make a law providing for deployment of the Armed Forces in
aid of the civil power does not comprehend the power to enact a
law which would enable the Armed Forces to supplant- or act as a
substitute for the civil power.
Maintenance of Public Order involves cognizance of offences,

search,' seizure and arrest followed by registration of reports of
offences (F.I.Rs.) investigation, prosecution, trial and, in the event
of conviction, execution of sentences. The powers conferred under
the Ordinance on!), provide for cognizance of offences, search,
seizure and arrest and destruction of arms dumps and shelters and
structures used as training camps or as hide-outs for armed gangs.
The other functions have to be attended by the criminal justice
machinery viz. The Police, the Magistrates, the Prosecuting
Agency, the Court, the jails etc. This would show that the powers
that have been conferred do not enable the Armed Forces to
supplant or act as substitute for the civil power of and the
Ordinance only enables the Armed Forces to assist the civil power
in dealing with the disturbed conditions affecting the maintenance
of public order in the disturbed area.
Establishment of Military Courts under the Ordinance for trial of

civilians for offences mentioned in the Schedule to the Ordinance,
is invalid, unconstitutional and outside the scope of Article 245 of
the Constitution. Consequently, the convictions made and
sentences awarded by the Military Courts which are not yet
executed, are declared illegal and without lawful authority. These
cases and all other cases pending before the Military Courts stand
transferred to the Anti-Terrorist Courts already in existence or
which may hereinafter be created in terms of the guidelines
provided in the short order passed by us in the cases on 16-2-1999.
The evidence already recorded in tile cases before Military Courts,
shall be read as the evidence in those cases provided it shall not
affect any of the powers of the Presiding Officers in this regard as
is available under the law, The convictions made and sentences
awarded by the Military Courts which have been executed will be
treated as past and closed transactions. The Government will take
all necessary steps for implementation of the guidelines provided
in our short order dated 17-2-1999.
Ex parte D.F. Marais (1902) AC 109; Tilonko v. The Attorney-

General of the Colony of Natal (1907) AC 93; Bugga v. The King-
Emperor (1920) 47 IA 128; Clifford and O'sullivan (1921) 2 AC
570; Rex v. Alen (1921) 2 IR 241; Ex parte Milligan (1866) 4
Wallace US Rep.2, 137; Reg v. Nelson (1866) Cockburn Rep 69
and Reg v. Eyre (21866) Finlason Rep. 74 distinguished.
Muhammad Umer Khan v. Crown PLD 1953 Lah. 528;

International Encyclopedia of Social Sciences and Naga Peoples'
Movement of Human Rights v. Union of India AIR 1998 SC 431
ref.
(qq) Martial Law---
----Concept---Government functioning under a written Constitution

derives its power and strength from the provisions of the
Constitution and unless the Constitution either expressly or by
necessary implication recognizes the concepts of Martial Law, the
same cannot form part of the Constitutional Scheme.
(rr) Constitution of Pakistan (1973)--

----Arts. 237 & 6---Martial Law cannot be treated as part of the
Constitutional Scheme of Constitution of Pakistan.
(ss) Constitution of Pakistan (1973)---
----Art. 245---Expression "act in aid of civil power" occurring in

Art.245 of the Constitution---Connotation and effect.
Naga Peoples' Movement of Human Rights v. Union of India AIR

1998 SC 431 ref.
Per Irshad Hasan Khan, J.-
(tt) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----Preamble---Salient features of the Ordinance recorded.
(uu) Constitution of Pakistan (1973)---
----Arts.A 245, 243, 2A, 5, 6, 175 & 203---Pakistan Armed Forces

(Acting in Aid of the Civil Power) Ordinance (XII of 1998),
Preamble---Convening of Military Courts to try civilians for civil
offences---Validity---Term "in aid of civil power" occurring in
Art.245(1) of the Constitution implies that some assistance may be
necessary to the civil power for the performance of its functions
and not to taking over of the civil power especially the judicial
powers of the Judiciary---Armed Forces cannot be permitted to
substitute the ordinary Civil Courts while acting in aid of civil
power as the expression to call Armed Forces "in aid of civil
power" in Art.245(1) of the Constitution excludes the substitution
of Civil Courts by the Military Courts---Civil liberties and
Military, Courts cannot endure together under the Scheme of
Constitution of Pakistan--Courts established pursuant to Pakistan
Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998,
thus, do not fall within the purview of any of the provisions of the-
Constitution of Pakistan---Mere fact that the procedure prescribed
for trial of offences is mentioned in the Schedule attached to the
Ordinance, the provisions of Pakistan Army Act, 1952 and the
Rules thereunder are applicable, would not convert the Military
Courts convened under the Ordinance into Court Martial---Such
Courts, therefore, do not fulfil the criteria of a "Court" exercising
judicial functions within the purview of the guidelines provided by
Supreme Court in the case of Mehram Ali PLD 1998 SC 1445---
Ordinance. 1998 not falling within the category of reasonable
classification and being ultra wires of the Constitution in so far as
same took away the adjudicatory powers of the Judiciary,
establishment of Military Courts under the said Ordinance was
unwarranted by any Constitutional provision notwithstanding the
bona fides and the noble object of Federal Government to
suppress/curb terrorism and punish the persons/accused mentioned
in the Ordinance ---Armed Forces have to be kept in strict
subordination to be governed by the Civil power and the State--
Principle of trichotomy of power of three organs of the State with
special reference to terms , "Court", "legal pollution" and
"protracted litigation" elaborately discussed.
The soldier and the citizen stand alike under the law. Both must
obey the command of the Constitution and obedient to its
mandates. The Armed Forces have to act within the scope of their
jurisdiction as defined under the Constitution as long as the acts of
the Armed Forces fall within the scope of their jurisdiction, the
same are protected while such are in excess of their jurisdiction,
are exceptionable. It is only where the civil power is completely
broken, Courts in the country have ceased to function, the danger
of imposition of Martial Law cannot be ruled out notwithstanding
the provisions of Article 6 of the Constitution, which provides that
any person who abrogates or attempts or conspires to abrogate,
subverts or attempts or conspires to subvert the Constitution by use
of force or show of force or by other unconstitutional means, shall
be guilty of high treason. But in all other cases, the expression to,
call the Armed Forces "In aid of civil power" excludes the
substitution of Civil Courts by the Military Courts. The Armed
Forces should be kept in strict subordination to be governed by the
civil polder and the State as is apparent from a bare reading of
Article 243 of the Constitution, which provides that the Federal
Government shall have the control and command of the Armed
Forces. The necessity of the Armed Forces for the preservation of
the society, peace, defence. integrity and solidarity of Pakistan,
cannot be under-estimated. Needless to say that during the present
emergency and until the danger of terrorism and internal
disturbances is removed, the Armed Forces may be called by the
Federal Government to 'act in aid of civil power', 'subject to law'
and confer on it such other powers as the situation may require.
However, the Armed Forces cannot be permitted to substitute the
ordinary Civil Courts while acting "in aid of civil power". A
Government elected by the Constitution can only perform its
functions and ensure observance of the provisions of the
Constitution by making the civil power superior to arid not
subordinate to the Armed Forces during peace as well as war. This
is the foundation stone of Constitution of Pakistan as reflected in
Article 2A that sovereignty over the entire universe belongs to
Almighty Allah alone and the authority to be exercised by the
people of Pakistan within the limits prescribed by Him is a sacred
trust and that the State shall exercise its powers and authority
through the chosen representatives of the people wherein the
fundamental rights shall be guaranteed including equality of status,
of opportunity and before law, social, economic and political
justice, and freedom of thought, expression, belief, faith, worship
and association, subject to law and public morality and that the
independence of the Judiciary shall be fully secured. Clearly, the
integrity of the territories of the Federation, its independence and
all its rights, including its sovereign rights on land, sea and air,
shall be safeguarded by the Armed Forces, under the control and
directions of the Federal Government. The term "in aid of civil
power" implies that some assistance may be necessary to the civil
power for the performance of its functions and not the taking over
of the civil powers, especially the judicial powers of the Judiciary.
The phrase "to act in aid of civil power" used in Article 245(1) of
the Constitution does not include the power to substitute the
existing judicial system and/or to establish a parallel system. It is
true that the State has a right to protect itself against terrorist
activities including all those who would destroy it, and it could be
said that that right has been linked with the right of the individual
to his self-defence but in the exercise of such right and with a view
to preserving the society and the State, it must take all measures in
conformity with the Constitution and not in derogation Thereof. In
order to protect the innocent citizens against terrorist activities, the
Army can act "in aid of civil power" by rendering such assistance
as may be needed under the direction of the Federal Government
excluding the power to share the judicial power exclusively vesting
in the Judiciary and/or to supplant the existing system by
establishment of parallel Courts as has been done pursuant to the
Ordinance, 1998. When the Army is "acting in the aid of civil
power" to restore peace and normalcy, the power to apprehend
accused, their investigation, arrest and assistance in expeditious
submission of the challan to the Courts, production and attendance
of witnesses and their security including that of the Presiding
Officers and the Advocates, is incidental to the directions of the
Federal Government "to act in aid of civil power". It is difficult to
enumerate the acts/steps that may be taken by the Armed Forces
while "acting in aid of civil power" but in the exercise of the said
power they cannot either directly or indirectly share the judicial
powers of the Courts or replacement thereof. The Ordinance to that
extent, is, therefore, wholly unwarranted and cannot sustain even
on ground of alleged necessity. The term "to act in aid of civil
power" no matter how liberally it may be construed, would not in
any manner whatsoever embrace the judicial powers conferred on
the Courts under the Scheme of the Constitution.

Ordinance, 1998 was promulgated bona fide with a view to restore
peace and normalcy in the country and, particularly in Sindh, but
however, bona fide an action may be in itself, it cannot be a
touchstone for judging the Constitutionality of the Ordinance. Its
validity is to be judged only on the touchstone of the Constitutional
provisions. Reading Articles 175, 203 and 245 together and in the
light of the judgment rendered by Supreme Court in the case of
Mehram Ali (supra) it indubitably leads to the conclusion that the
Military Courts envisaged under the Constitution tantamount to
establishment of parallel Courts for which there was no warrant.
The bare reading of Article 245 would show that it does not
contemplate declaration of Martial Law or Mini-Martial Law in
any form whatsoever. It is not the case that the Courts are not
functioning. If it is alleged that the Courts were not deciding the
cases expeditiously on account of fear of the terrorists, the proper
course was methods of investigation, expeditious submission of
challan to the trial Courts, security of witnesses/litigants as well as
the Presiding Officers of the Courts and to take long/short term
measures including appropriate increase in the strength of Judges
in the light of the various reports of the Law Commission.
The Courts established pursuant to the Ordinance do not fall within

the purview of any of the Constitutional provision. The
Constitution envisages trichotomy of powers of the three organs of
the State, namely, Legislature, Executive and the Judiciary- The
Legislature is assigned the task of law making, the Executive to
execute such laws and the Judiciary to construe and interpret the
laws. None of the organs of the State can encroach upon the fields
allotted to others. The Constitution does not countenance the take-
over of the judicial functions by the Armed Forces at the direction
of the Federal Government in the purported exercise of power '
conferred on it under Article 245 of the Constitution. Article 245
does not by itself create the law but enables the making of a law
which should have nexus with the phrase "to act in aid of civil
power" The replacement of Courts either partially or wholly is not
recognized under any provisions of the Constitution. A bare
reading of Article 243 would show that the Armed Forces are
subject to the control and authority of the Federal Government i.e.
a civilian Government. No circumstances existed in the country
which indicated the breaking down of the judicial organ,
necessitating
establishment of Military Courts. It is imperative for the

preservation of the State that the existing judicial system should he
strengthened and the principle of trichotomy of power is adhered to
by following, in letter and spirit, the Constitutional provisions and
not by making deviation therefrom on any ground whatsoever.
The term "Court" as used in the Army Act was intended to include
Courts Martial as distinguished from Martial Law Courts. The
latter Courts are established during the continuance of Martial Law
either during war or even when due to internal disturbances the
civil administration/Government completely comes to an end-
Military Courts as distinguished by Courts Martial envisaged under
the Army Act, 1952, are primarily meant for maintaining discipline
in the Armed Forces. The mere fact that the procedure prescribed
Ordinance, the Provisions of Army Act and the Rules made
thereunder are applicable would not convert these Courts into
Courts Martial. The Courts Martial are the creatures of Army Act
and Naval Act and Air Force Act. which authorise them to decide
cases of persons subject to Army Act and to pass orders of
sentences in accordance with law. Having regard to the object for
which they are created. the functions which they perform fall
within the term "Court" as used in the Army Act, Naval Act, Air
Force Act but do not form part of the judicial hierarchy established
under Article 175(1) of the Constitution. The decisions rendered b3
the Courts Martial are entitled to very great respect but are
relatable only to persons subject to Army Acts but they cannot
exercise jurisdiction as is exercised by the ordinary Courts with
respect to civilians. The Courts Martial can exercise jurisdiction
only with respect to persons who are members of the Armed
Forces and in certain cases even in civilian offences in respect of
those persons alone. But there is no statute, law or any provision of
the Constitution conferring jurisdiction on the Military Courts to
try the civilians. It is true that the cases before the Courts Martial
are to be disposed of expeditiously but it was never intended under
the Scheme of the Constitution that under any circumstances they
will also hear the cases of the civilians, the adjudication of dispute
in respect of whom can only be done by the ordinary Courts as
distinguished from Military Courts created under the Ordinance. It
is true that the existing conditions in which the law has to be
applied cannot be ignored in adjudging its validity because it is
relatable to the object sought to be achieved. It is also true that
terrorism and other criminal activities are negation of the principles
of democracy, freedom, equality, tolerance and social justice as
enumerated by Islam. A law made to facilitate maintenance of law
and order and/or to restore peace and curb terrorism, which is the
spirit behind the Objectives Resolution now forming part of the
Constitution by Article 2A of the Constitution, is permissible. But
in making such a law the Constitutional provisions cannot be
permitted to be contravened. Clearly, an accused charged of
offences/an unconvicted person is presumed to be innocent and has
a vested right to a fair trial before a Court or Tribunal validly
established under Article 175(l)-of the Constitution. Even if
Military Courts are treated as Special Courts, they cannot be
declared valid as in the Ordinance, no provision of appeal has been
provided against the orders of the Military Courts before the
Supreme Court nor their functioning and supervision have been
made subordinate to it. Thus, visualized, they do not fulfil the
criteria of a "Court" exercising judicial functions within the
purview of the guidelines provided in the case of Mehram Ali. The
establishment of Military Courts is, therefore, unwarranted by any
Constitutional provision. Viewed from this angle as well, the
Ordinance does not fall within the category of reasonable
classification. Thus, visualised, notwithstanding the bona fides and
the noble object of the Federal Government to suppress/curb
terrorism and punish the persons/accused mentioned in the
Ordinance, the same cannot be called intra vires , of the
Constitution.
Courts today are choked by "legal pollution" and the society has
become litigus. The goal of access to justice is defeated, when too
many claims overwhelm the limited resources of the Courts. The
right to participate in the legal process as envisaged by the
Constitution and valid law is fundamental to a just society. If the
citizens are deprived of their Constitutional rights to have access to
justice in accordance with the Constitution and the law because
they are unable to utilize the Courts effectively for the resolution of
their disputes or the disputes between the Government and the
citizens or that a particular class of citizens is excluded from
having access to justice by creating a parallel judicial system i.e. a
'barrier' to access to justice, certainly such a course would be
repugnant to the Constitutional mandate provided under Article 5
of the Constitution that obedience to the Constitution and law is the
inviolable obligation of every citizen wherever he may be and of
every, other person for the time being within Pakistan while Article
4 thereof guarantees the right of individuals to be dealt with in
accordance with law. The right of access to justice to all is
enshrined in the Constitution, which is also found in the doctrine of
"due process of law". Such a right includes the right to be treated
according to law; the right to have a- fair and proper trial and the
right to have an impartial Court or Tribunal. Without having an
independent Judiciary, the fundamental rights enshrined in the
Constitution will be meaningless and will have no efficacy or
beneficial value to the public-at-large.
Viewed from whatever angle, the Ordinance is ultra vires of the

Constitution in so far as it takes away the adjudicatory powers of
the Judiciary.
In the present case, the country is not under the umbrella of Martial
Law and fundamental rights have not been suspended. Article 5 of
the Constitution provides that loyalty to the State is the basic duty
of every citizen and that obedience to the Constitution and law is
the inviolable obligation of every citizen wherever he may be and
of every other person for the time being within Pakistan. Article 6
of the Constitution stipulates that any person who abrogates or
attempts or conspires to abrogate, subverts or attempts or conspires
to subvert the Constitution by use of force or show of force or by
other unconstitutional means shall be guilty of high treason; any
person aiding or abetting the acts mentioned in clause (1) of Article
6 shall likewise be guilty of high treason and, that Majlis-e-Shoora
(Parliament) shall by law provide for the punishment of persons
found guilty of high treason. The Judges of the Superior Courts
have also sworn an oath under the Constitution that they shall
preserve. protect and defend the Constitution of the Islamic
Republic of Pakistan and shall discharge their duties and perform
their functions honestly, to the best of their abilities and faithfully
in accordance with the Constitution and the law and that in all
circumstances, they will do right to all manner of people, according
to law, without fear or favour, affection or ill-will.
It would, therefore, be seen that the civil liberties and Military

Court cannot endure together under Scheme of Constitution. There
is no doubt, that so far as the relationship of the Military to its own
personnel is concerned, the basic attitude of the Court as to
jurisdiction of the Civil Court to review the decision of Military
Courts by invoking the Constitutional jurisdiction has been limited
to examination of cases which arc found to be mala fide, coram
non judice and without jurisdiction.
[Case-law extensively referred].
(vv) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----5. 3---Constitution of Pakistan (1973), Arts.245 & 243---

Convening of Military Courts for trying civilians for civil offences
under S.3, Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998---Validity--Trichotomy of power of three
organs of the State ---Scope---Court---Concept--Constitution of
Pakistan, envisages trichotomy of power of the three organs of the
State namely Legislature, Executive and the Judiciary---Courts
established pursuant to S.3, Pakistan Armed Forces (Acting in Aid
of the Civil Power) Ordinance, 1998 do not fall within the purview
of any of the Constitutional provisions---Even if such Military
Courts are treated as "Special Courts", these cannot be declared
valid as in the said Ordinance, no provision of appeal has been
provided against the order of the Military Courts before the
Supreme Court nor their functioning and supervision have been
made subordinate to it---Such Military Courts, therefore, do not
fulfil the criteria of a "Court" exercising judicial functions within
the purview of guidelines provided by Supreme Court in the case
of Mehram Ali PLD 1998 SC 1445---Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998, therefore, is
ultra vires of the Constitution in so far as same takes away the
adjudicatory powers of judiciary.
The Courts established pursuant to the Pakistan Armed Forces

(Acting in Aid of the Civil Power) Ordinance, I998 do not fall
within the purview of any of the Constitutional provisions. The
Constitution envisages trichotomy of powers of the three organs of
the State, namely, Legislature, Executive and the Judiciary. The
Legislature is assigned the task of law making, the Executive to
execute such laws and the Judiciary to construe and interpret the
laws. None of the organs of the State can encroach upon the fields
allotted to others. The Constitution does not countenance the take-
over of the judicial functions by the Armed Forces at the direction
of the Federal Government in the purported exercise of power
conferred on it under Article 245 of the Constitution. Article 245
does not by itself create the law but enables the making of a law
which should have nexus with the phrase "to act in aid of civil
power". The replacement of Courts either partially or wholly is not
recognized under any provisions of the Constitution. A bare
reading of Article 243 would show that the Armed Forces are
subject to the control and authority of the Federal Government i.e.
a civilian Government. No circumstances existed in the country
which indicated the breaking down of the judicial organ,
necessitating establishment of Military Courts. It is imperative for
the preservation of the State that the existing judicial system should
be strengthened and the principle of trichotomy of power is
adhered to by following, in letter and spirit, the Constitutional
provisions and not by making deviation therefrom on any ground
whatsoever.
The term "Court" as used in the Army Act was intended to include
Courts Martial as distinguished from Martial Law Courts. The
latter Courts are established during the continuance of Martial Law
either during war or even when due to internal disturbances the
civil administration/Government completely comes to an end.
Military Courts as distinguished by Courts Martial envisaged under
the Army Act, 1952, are primarily meant for maintaining discipline
in the Armed Forces. The mere fact that the procedure prescribed
Ordinance, the provisions of Army Act and the Rules made
thereunder are applicable would not convert these Courts into
Courts Martial. The Courts Martial are the creatures of Army Act
and Naval Act and Air Force Act, which authorise them to decide
cases of persons subject to Army Act and to pass orders of
sentences in accordance with law Having regard to the object for
which they are created, the functions which they perform fall
within the term "Court" as used in the Army Act, Naval Act, Air
Force Act but do not form part of the judicial hierarchy established
under Article 175(11 of the Constitution. The decisions rendered
by the Courts Martial are entitled to very great respect but are
relatable only to persons subject to Army Acts but they cannot
exercise jurisdiction as is exercised by the ordinary Court- with
respect to civilians. The Courts Martial can exercise jurisdiction
only with respect to persons who are members of the Armed
Forces and in certain cases even in civilian offences in respect of
those persons alone. But there is no statute, law or any provision of
the Constitution conferring jurisdiction on the Military Courts to
try the civilians. It is true that the cases before the Courts Martial
are to be disposed of expeditiously but it was never intended under
the Scheme of the Constitution that under any circumstances they
will also hear the cases of the civilians, the adjudication of dispute
to respect of whom can only be done by the ordinary Courts as
distinguished from Military Courts created under the Ordinance. It
is true that the existing conditions in which the law has to be
applied cannot be ignored in adjudging its validity because it is
relatable to the object sought to be achieved a It is also true that
terrorism and other criminal activities are negation of the 4
principles of democracy, freedom, equality, tolerance and social
justice as enumerated by Islam. A law made to facilitate
maintenance of law and order and/or to restore peace and curb
terrorism, which is the spirit behind the Objectives Resolution now
forming part of the Constitution by Article 2A of the Constitution,
is permissible. But in making such a law the Constitutional
provisions cannot be permitted to be contravened. Clearly, an
accused charged of offences/an unconvicted person is presumed to
be innocent and has a vested right to a fair trial before a Court or
Tribunal validly established under Article 175(1) of the
Constitution. Even if Military Courts are treated as Special Courts,
they cannot be declared valid as in the Ordinance, no provision of
appeal has been provided against the orders of the Military Courts
before the Supreme Court nor their functioning and supervision
have been made subordinate to it. Thus, visualized, they do not
fulfil the criteria of a "Court exercising ,judicial functions within
the purview of the guidelines provided in the case of Mehram Ali.
The establishment of Military Courts is- therefore, unwarranted by
any Constitutional provision. Viewed from this angle as well, the
Ordinance does not fall within the category of reasonable
classification. Thus, visualized, notwithstanding the bona fides and
the noble object of the Federal Government to suppress/curb
terrorism and punish the persons/accused mentioned in the
Ordinance, the same cannot be called intra vires of the
Constitution.
Courts today are choked by "legal pollution" arid the society has
become litigus. The goal of access to justice is defeated, when too
many claim overwhelm the limited resources of the Courts. The
right to participate in the legal process as envisaged by the
Constitution and valid law is fundamental to a Lust society. If the
citizens are deprived of their Constitutional rights to have access to
justice in accordance with the Constitution and the law because
they arc unable to utilize the Courts effectively for the resolution of
their disputes or the disputes between the Government and the
citizens or that a particular class of citizens is excluded from
having access to justice by creating a parallel judicial system i.e. a
'barrier' to access to justice, certainly such a course would be
repugnant to the Constitutional mandate provided under Article 5
of the Constitution that' obedience to the Constitution and law is
of every other person for the time being within Pakistan while
Article 4 thereof guarantees the right of individuals to be dealt with
in accordance with law. The right of access to justice to all is
enshrined in the Constitution, which is also found in the doctrine of
"due process of law". Such a right includes the right to be treated
according to law; the right to have a fair and proper trial and the
right to have an impartial Court or Tribunal. Without holding an
independent Judiciary, the fundamental rights enshrined in the
Constitution will be meaningless and will have no efficacy or
beneficial value to the public-at-large.
Viewed from whatever angle, the Ordinance is ultra vires of the
Constitution in so far as it takes away the adjudicatory powers of
the Judiciary.
(ww) Pakistan Armed Forces (Acting in Aid of the Civil Power)

Ordinance (X11 of 1998)--
----S. 3---Constitution of Pakistan (1973), Arts. 5 & 6---Convening

of Military Courts to try civilians for civil offences under S.3,
Ordinance, 199E---Validity---Loyalty to State and obedience to
Constitution and law---Civil liberties and Military Courts, held,
could not endure together under the Scheme of the Constitution of
Pakistan---Principles.
In the present case, the country is not under the umbrella of Martial
Law and fundamental rights have not been suspended. Article 5 of
the Constitution provides that loyalty to the State is the basic duty
of every citizen and that obedience to the Constitution and law is
of every other person for the time being within Pakistan. Article 6
of the Constitution stipulates that any person who abrogates or
attempts or conspires to abrogate, subverts or attempts or conspires
to subvert the Constitution by use of. force or show of force or by
other unconstitutional means shall be guilty of high treason; any
person aiding or abetting the acts mentioned in clause (1) of Article
6 shall likewise be guilty of high treason and that Majlis-e-Shoora
(Parliament) shall by law provide for the punishment of persons
found guilty of high treason. The Judges of the Superior Courts
have also sworn an oath under the Constitution that they shall
preserve, protect and defend the Constitution of the Islamic
Republic of Pakistan and shall discharge their duties and perform
their functions honestly, to the best of their abilities and faithfully
in accordance with the Constitution and the law and that in all
circumstances, they will do right to all manner of people, according
to law, without fear or favour, affection or ill-will.
It would, therefore, be seen that the civil liberties and Military
Courts cannot endure together under the scheme of Constitution.
There is no doubt, that so far as the relationship of the Military to
its own personnel is concerned, the basic attitude of the Court as to
jurisdiction of the Civil Court to review the decision of Military
Courts by invoking the Constitutional jurisdiction has been limited
to examination of cases which are found to be mala fide, coram
non judice and without jurisdiction.
(xx) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Arts. 245 & 175---

Convening of Military Courts for trying civilians for civil offences
Power) Ordinance, 1998---Validity--Question of backlog and
expeditious disposal of terrorist cases---Remedy---Role of Armed
Forces as contemplated under Art.245 of the Constitution ---
Nature--Role of Armed Forces while acting "in aid of civil power"
does not in any way confer the power directly or indirectly to
interfere with the Courts established under Art. 1750) of the
Constitution and/or to supplant thereon---Doctrine of necessity---
Application---Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998 being ultra vires of the Constitution
cannot be validated even on the touchstone of State necessity---
Principles regarding application of doctrine of necessity with its
prerequisites discussed.
In the present case, the Courts are functioning and the question of
backlog and expeditious disposal of terrorists cases can be
remedied by taking effective measures, in the light of the
guidelines and recommendations provided by Supreme Court. The
Courts are functioning properly and administering justice
according to the Constitution and the law. These Courts, therefore,
cannot be replaced by Military Courts as attempted to be done
either partially or wholly by virtue of the Ordinance. The role of
Armed Forces as contemplated under Article 245 is to defend the
country from external aggression or threat of war or to come to the
"aid of civil power" subject to law. The second function of coming
in the "aid of civil power" to be performed by the Armed Forces is
subject to a condition precedent of enacting a law. The law so
made must have nexus with the term "to act in aid of civil power".
The role of Armed Forces while acting "in aid of civil power" does
not in any way confer the power either directly or indirectly to
interfere with the Courts established under Article 175(1) of the
Constitution and/or to supplant them.
Contention raised was that the Doctrine of Necessity is not

outdated and can be invoked in the present case for a "limited
purpose" cannot be countenanced, for, if it is approved of, it may
very frequently be resorted to at the incidence of a situation
presently prevailing in the country, by the Executive. In fact, such
approval whereby the Executive is allowed to cross the barriers of
Constitutional provisions at its whim, would turn a democratic rule
into a despotic one. Clearly, any deviation from the Constitution
may lead to anarchy. Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 being ultra vires of the Constitution
cannot be validated even on the touchstone of State necessity. Plea
that the establishment of Military Courts is spelt out from the
power vesting in the Federal Government under Article 245 is
contradictory with the theory of State necessity, inasmuch as, the
concept of law of necessity, would arise only if an act which would
otherwise be illegal becomes legal if it is done bona fide, in view
of State necessity, with a view to preserving the State or the society
from destruction by the terrorists.- In the present case., there is no
doubt that the Ordinance was issued bona fide with a view to
suppress the menace of terrorism. Nevertheless, the
Constitutionality of the Ordinance is not to be judged on the
question of bona fides of the Federal Government simpliciter but
on the touchstone of -the Constitutional provisions. Here,
legislation is ultra vires of the Constitution in so far as it takes
away the functions of the Courts in determining the guilt or
innocence of an accused. Be that as it may, the prerequisites for the
application of Doctrine of Necessity are not satisfied in the present
case for upholding the legislation, even for a limited period. The
prerequisites are:-
(a) An imperative and inevitable necessity or exceptional

circumstance;
(b) no other remedy to apply;
(c). the measure taken must be proportionate to the necessity; and
(d) it must be of a temporary character limited to the duration of

the exceptional circumstances.
Begum Nusrat Bhutto's case PLD 1977 SC 657 and Attorney-

General of Republic v. Mustafa Ibrahim 1964 CLR 195 ref.
(yy) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), A,rt.2A---Convening of

Military Courts for trying civilians for civil offences under S.3,
Ordinance, 1998---Validity---Independence of Judiciary---
Concept---Military Courts ought never to exist where the Civil
Courts are open and performing their functions properly nor should
they be obstructed in the proper exercise of their jurisdiction by
replacement thereof- Principles.
The Constitution of the Islamic Republic of Pakistan, 1973 in its

preamble (now made a substantive part thereof vide Article 2A)
declares that "the independence of the Judiciary shall be fully .
secured" therein. The independence of the Judiciary means that
every Judge is free to decide matters before him in accordance with
his assessment of the facts and his understanding of the law
without improper influences, inducements or pressures, direct or
indirect, from any quarter or for any reason; and that the Judiciary
is independent of the Executive and Legislature, and has
jurisdiction, directly or by way of review, over all issues of a
judicial nature.
Military Courts ought never to exist where the Civil Courts are
open and performing their functions properly nor should they be
obstructed in the proper exercise of their jurisdiction by
replacement thereof.
History teaches that expansion of Military discipline beyond its

proper domain carries with it a threat to liberty.
Interference of the Military with the Civil Courts had caused great
anxiety and antagonism.
Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Aziz

Ullah Memon's case PLD 1993 SC 341; AI-Jehad Trust v.
Federation of Pakistan PLD 1996 SC 324; Mehram Ali's case PLD
1998 SC 1445; Ex pane Milligan 71 US 2; O'Callahan v. Parker 89
SCt.1683, 395 US 258; Reid v. Covert 77 S.Ct.1222, 354 US 1;
People, Law and Justice, Vol. 1, p.158 by Sangeeta Ahuja; Hood
Phillips's Constitutional and Administrative Law, 5th Edn., p.305
and Muhammad Nawaz v..The Crown PLD 1951 FC 53 quoted.
(zz) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Part II, Chap. 1 (Arts. 7

to 28), Art.245 & Sched. IV, Federal Legislative List Part 1,
Entries Nos. 1 & 59--Convening of Military Courts for trying the
civilians for civil offences under S.3, Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998---Validity---
Convening of such Military Courts not a reasonable classification--
-Infringement of Fundamental Rights at the behest of Government-
--Role of Judiciary to safeguard the people from such
encroachment upon their rights by the Executive---Principles---
Judiciary secures the rights of the people and is a safety valve
against excessive and arbitrary actions of the Executive and;
infringement of law and Fundamental Rights---One organ cannot
overreach the other, nor one can ignore or minimise importance of
the other--Pakistan Armed Forces (Acting in Aid of the Civil
Power) Ordinance, 1998 does not fall within the category of
reasonable classification---Provisions of Art.245(1) of the
Constitution, in the purported exercise whereof the Military Courts
were established/convened, nor the power to legislate the
Ordinance find support from Entry No. l read with Entry No.59 of
Fourth Sched., Part I of the Federal Legislative List of the
Constitution and subject-matter of convening such Military Courts
under the Ordinance are not relatable to the matters incidental and
ancillary to any matter enumerated in Part I of the Federal
Legislative List of Fourth Sched. of the Constitution---Such
Military Courts, thus, do not fall under any of the provisions of the
Constitution and the trial by said Courts of civilians for civil
offences, which have no nexus with the Armed Forces or Defence
of Pakistan, would be ultra vires of the Constitution.
The Judiciary secures the rights of the people and is a safety valve
against excessive and arbitrary actions of the Executive and
infringement of law and Fundamental Rights. One organ cannot
overreach the other, nor one can ignore or minimise the importance
of the other. [p. 826] N
Plea that Pakistan Armed Forces (Acting in Aid of the Civil

Power) Ordinance, 1998 falls within the category of reasonable
classification is not sustainable. The provisions of clause (1) of
Article 245 in the purported exercise whereof the Military Courts
were established/convened nor the power to legislate the
Ordinance find support from Entry No.1 read with Entry No.59,
contained in the Federal Legislative List. The subject-matter also
does not fall under the residuary Entry No.59, relatable to matters
incidental and ancillary to any matter enumerated in Part I of the
Federal Legislative List. The above Entry indicates that the
Parliament can legislate in respect of jurisdiction and power of all
Courts except the Supreme Court with respect to any of the matters
in the aforesaid List but to such extent as expressly authorised by
or under the Constitution. Clearly, the jurisdiction of the Supreme
Court can be enlarged but cannot be curtailed in any circumstances
whatsoever. Military Courts do not fall under any of the provisions
of the Constitution, therefore, the trial by these Courts of civilians
for civil offences, which have no nexus with the Armed Forces or
Defence of Pakistan. would be ultra vires of the Constitution. The
establishment of the Military Courts cannot be upheld on the basis
of reasonable classification.
Khalid Malik v. Federation of'Pakistan PLD 1991 SC 1; Sardar

Faro oq Ahmad Khan Leghari v. Federation of Pakistan 1998
SCMR 1616; Malik Toti Khan v. The District Magistate, Sibi and
Ziarat PLD 1957 Quetta 'I; Brig. (Retd.) F.B. Ali v. The State PLD
1975 SC 506 and Mst. Shahida Zahir Abbasi v. President of
Pakistan PLD 1996 SC 632 ref.
Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506

distinguished.
(aaa) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Arts. 203 & 2A---

Convening of Military Courts to try civilians for civil offences
Power) Ordinance, 1998---Validity---Held, Courts/Tribunals which
were manned and run by the Executive Authorities. without being
under the control and supervision of the High Court in terms of
Art.203 of the Constitution could not meet the mandatory
requirements of the Constitution---In order to ensure independence
of Judiciary, any Court or Tribunal, which was not subject to
judicial review and administrative control of the High Court and/or
Supreme Court would not fit within the judicial framework of the
Constitution.
Muhammad Yaqoob Khan v. Emperor PLD 1947 PC 39;

Muhammad Nawaz v. Crown PLD 1951 FC 73; The King v. The
Army Council Ex parte Ravenscroft (1917) 2 KB 504; Brig.
(Retd.) F.B. Ali v. The State PLD 1975 SC 506; D.F. Marais v.
The General Officer Commanding the Lines of Communication
and the Attorney-General of the Colony (Ex pane D.F. Marais):
Tilonko v. Attorney-General of the Colony of Natal 1907 PC 1906;
Niaz Ahmad Khan v. Province of Sindh and others PLD 1977 Kar.
604 and Mehram Ali's case PLD 1998 SC 1445 ref.
(bbb) Administration of justice—
---Backlog crisis in the system of administration of justice and

other deficiencies in present judicial system in Pakistan as also the
defects in Investigating Agencies---Suggestions and
recommendations.
Per Raja Afrasiab Khan, ,1.; agreeing with Ajmal Mian, C.J.-
(ccc) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973), Arts. 245, 175 & 203---

Convening of Military Courts under S.3, Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998 to try civilians
for civil offences---Validity---Words "civil", "power", "act" and
"aid" occurring in Art.245 of the Constitution--Connotation---No
Courts other than Supreme Court of Pakistan, Provincial High
Courts and the Civil and Criminal Courts established under Art.
175 of the Constitution, can be set up in Pakistan to administer
civil as well as criminal justice---Courts which may amount to
parallel judicial system, therefore, cannot be permitted to be
established.
Macmillan English Dictionary by William D. Halsey; Stroud's

Judicial Dictionary; Black's Law Dictionary, 5th Edn., p.24; Niaz
Ahmad Khan v. Province of Sindh and others PLD 1977 Kar. 604;
Darvesh M. Arbey, Advocate v. Federation of Pakistan and others
PLD 1980 Lah. 206; Mehram Ali v. Federation of Pakistan PLD
1998 SC 1445; Letter No.53 by Caliph Ali to the Governor of
Egypt; Nihjat-ul-Baligha, 1st Edn. by Allama Syed Sharif and
AlJehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.
(ddd) Administration of justice---
---- Backlog crisis---Measures for quick dispensation of justice in

the existing judicial system suggested.
(eee) Words and phrases--
---- .Civil", "power", "act" and "aid "---Connotation.
Per Munawar Ahmed Mirza, J.; agreeing with Ajmal Mian, C.J.-
(fff) Constitution of Pakistan (1973)---
----Arts. 175 & 203---Criminal Procedure Code (V of 1898), Ss.

61, 167 & 344---High Court (Lahore) Rules and Orders, Vol. III,
Chaps. I -A, I1-B, 24 & 24-B, RrA, 8, 27, 28, 29, 30, 31 & 32---
Independence of Judiciary and its separation from Executive as
mandated by the Constitution does not make its authority absolute
but require its regulation within the four corners of law, rules and
procedure---Normal functioning of Judiciary has to be transparent
and inspire confidence amongst general public---Judiciary is bound
to exercise jurisdiction and authority within the prescribed domain
so that same remain self-accountable---Superior Judiciary enjoys
authority and power under the law and Constitution, to control and
supervise working of entire subordinate Courts functioning within
respective Provinces---Measures for improving working
capabilities for smooth and speedy administration of criminal
justice by subordinate Judiciary outlined.
Government of Balochistan v. Azizullah Memon PLD 1993 SC
341; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105;
Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161;
Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Al-
Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.
(ggg) Vires of legislation---
---- Law if validly enacted cannot be struck down on ground of

mala tides but the same can be struck down on the ground that it
was violative of a Constitutional provision.
Federation of Pakistan and another v. Malik Ghulam Mustafa Khar

PLD 1989 SC 26 ref.
(hhh) Words and phrases---
----"Act in aid of civil power" ---Connotation.
M. Akram Sheikh, Senior Advocate Supreme Court assisted by Ali

Adnan, Advocate, Azid Nafeed, Advocate and M.A. Zaidi,
Advocate-on-Record for Petitioner (in C.P. No.37 of 1998).
Petitioner in person (in Constitutional Petition No.38 of 1998).
Dr. Abdul Basit, Advocate Supreme Court and Ejaz M. Khan,

Advocate-on-Record for Petitioner (in Constitutional Petition
No.42 of 1998).
Petitioner in person (in Constitutional Petition No.43 of 1998).
Aitzaz Ahsan, Advocate Supreme Court and Mehr Khan Malik,

Advocate-on-Record for Petitioner (in Constitutional Petition No.4
of 1999).
Ch. Muhammad Farooq, Attorney-General with Ch. Akhtar Ali,

Advocate-on-Record assisted by Tanvir Bashir Ansari, Deputy
Attorney General, Mushtaq Ali Tahirkheli, Advocate Supreme
Court, A.K. Dogar, Advocate Supreme Court, Raja Muqsit Nawaz
Khan, Advocate and M. Iqbal Radd, Advocate-General, Sindh (on
Court Notice) for Respondents (in Constitutional Petitions Nos.37,
38, 42, 43 of 1998 and 4 of 1999 and for Petitioners in Civil
Review Petitions Nos. 1 to 5 of 1999). ,
Dates of hearing: 1st to 5th, 8th to 12th and 15th to 17th February,
1999.
JUDGMENT
AJMAL MIAN, C J.---By the following short order dated 17-2-

1999 we have disposed of the above five Constitution Petitions:-
ORDER
"After hearing the learned counsel for the petitioners, the

petitioners in person, the learned Attorney-General for Pakistan
and the learned Advocate-General, Sindh, for the reasons to be
recorded later, we are of the view that Ordinance No.Xll of 1998 as
amended up to date in so far as it allows the establishment of
Military Courts for trial of civilians charged with the offences
mentioned in section 6 and the Schedule to the above Ordinance is
unconstitutional, without lawful authority and of no legal effect
and that the cases in which sentences have already been awarded
but the same have not yet been executed shall stand set aside and
the cases stand transferred to the Anti-Terrorist Courts already in
existence or which may hereinafter be created in terms of the
guidelines provided hereunder for disposal in accordance with the
law. The evidence already recorded in the above cases and the
pending cases shall be read as evidence to the cases provided that it
shall not affect any of the powers of the Presiding Officer in this
regard as is available under the law. The above declaration will not
affect the sentences and punishments already awarded and
executed and the cases will be treated as past and closed
transactions.
2 However, we are not oblivious of the fact that terrorism in

Karachi and in other parts of Pakistan has not only taken toll of
thousands of innocent lives but has also affected the economy of
the entire country and it is a matter of paramount' importance that
this menace is eliminated effectively in the shortest possible time,
for which a solution be found within the framework of the
Constitution.
3. Since we are seized of these petitions in exercise of our

Constitutional jurisdiction under Article 184(3) of the Constitution,
we lay down the following guidelines which may contribute
towards the achievement of the above objective:
(i) Cases relating to terrorism be entrusted to the Special Courts

already established or which may be established under the Anti-
Terrorism Act, 1997 (hereinafter referred to as A.T.A.) or under
any law in terms of the judgment of this Court in the case of
Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC
1445);
(ii) One case be assigned at a time to a Special Court and till

judgment is announced in such case, no other case be entrusted to
it:
(iii) The concerned Special Court should proceed with the case
entrusted to it on day to day basis and pronounce judgment within
a period of 7 days as already provided in A.T.A. or as may be
provided in any other law:
(iv) Challan of a case should be submitted to a Special Court

after full preparation and after ensuring that all witnesses will be
produced as and when required by the concerned Special Court;
(v)An appeal arising out of an order/judgment of the Special Court

shall be decided by the appellate forum within a period of 7 days
from the filing of such appeal:
(vi) Any lapse on the pan of the Investigating and Prosecuting

Agencies shall entail immediate disciplinary action according to
the law applicable;
(vii) The Chief Justice of the High Court concerned shall nominate
one or
more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms
of these guidelines;
(viii)That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor
the implementation of the above guidelines. The Judge or Judges. so nominated will also ensure that if any
petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme
Court;
(ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A., the
assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all
stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases,
minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the
sentence."
2. The relevant facts are that all the above five Constitution Petitions have been filed under Article 184(3)
of the Constitution of the Islamic Republic of Pakistan (1973) (hereinafter referred to as the Constitution),
to challenge the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance; 1998 (Ordinance
XII of 1999) promulgated on 20th November, 1998 (hereinafter referred to as the impugned Ordinance),
whereby the civilians are to be tried by the Military Courts for the civil offences mentioned, inter alia, in
the Schedule to the Ordinance, on various grounds. Constitution Petition No.37 of 1998 has been filed by
Sh. Liaquat Hussian, a sitting M.N.A; Constitution Petition No.38 of 1998 has been filed by Syed lqbal
Haider, who, as per averment in the petition, is the Chairman of a Political Party, namely, Muslim Welfare
Movement of Pakistan; Constitution Petition No.42 of 1998 has been filed by M.Q.M., through its Deputy
Convener Senator Aftab Ahmad Sheikh: Constitution Petition No.43 of 1998 has been filed by Shahid
Orakzai, a Journalist; and Constitution Petition No.4 of 1999 has been filed by Nisar Khurho, an M.P.A. of
the Sindh Assembly and the President of Sindh Pakistan People's Party.
It may he observed that in Constitution Petition No.42 of 1998, besides challenging the impugned
Ordinance, a number of other reliefs were claimed. but when on 8-1-1999 it was pointed out to Dr. A.
Basit, learned counsel for the petitioner, that the Court was to examine only the vires of the impugned
Ordinance in the above Constitution Petitions, he filed an amended petition on or about 11- 1- 1999
confining the petition to the above question.
It may be stated that an application dated 10-1-1999 under Order V, Rule 2(2) of the Pakistan Supreme
Court Rules, 19RO was filed for adding 19 interveners as parties to the above Constitution Petition Nn.42
of 1998 on the ground that the above interveners are in custody and are shortly to be sent for trial before the
Military Courts set up/convened under the impugned Ordinance.
Since the Court was to examine the. vires of the impugned Ordinance arid not any individual case, the
above request was not entertained.
3. The Federation has filed a concise statement in the above Constitution Petitions, in which besides raising
the legal pleas including as to the maintainability of the above Constitution Petitions filed by the above
petitioners. the following factual pleas have been raised:---
"5. That the Military Courts convened, under Ordinance XII of 1998, are only a temporary measure to
control the abnormal law and order situation in the Province of Sindh generally and in the city of Karachi
particularly. The convening of Military Courts, for the objects mentioned above, is not meant to establish a
parallel judiciary and there is no intention to displace or supplant the normal judicial system.
6. That to meet the ends of justice, this Honourable Court has held in a number of cases that the
conferment of summary power or adjudication. which fulfils the requirement of fair play, equity and
principles of natural justice, are in accordance with law and are not amenable to judicial review.
7. That the convening of Military Courts, under Ordinance XIl of 1998, is not violative of Article
175 of the Constitution. It is reiterated that the Pakistan Army Act, 1952, being already in force, the
Military Courts have only been convened on a temporary basis and the action, by no means, amounts to
establishing a parallel judicial system. There is no violation of Article 175 of the Constitution.
8. That there is a purely jurisdictional aspect of the matter which requires consideration of this Honourable
Court. Clause (2) of Article 245 states that any direction issued under clauses (1) thereof is not open to
scrutiny in any Court. This, therefore, is an ouster of jurisdiction clause. There are a number of such clauses
in the Constitution which have come up for judicial scrutiny in numerous cases in the past quarter of a
century (i.e. Zia-ur-Rehman's case et al). The consistent interpretation in all such cases has been that they
operate to exclude a judicial decision on merits except in three highly restricted classes of cases, namely, in
cases of-- .
(i) coram non judice
(ii) excess of jurisdiction, and
(iii) mala fides.
It is respectfully submitted that none of the above grounds is applicable to the facts and circumstances of
the present case. The decision to convene Military Courts has been taken by a properly constituted
authority, it is not in excess of jurisdiction and it is certainly not .mala fide.
9. On the failure of civil power to operate due to domestic disturbances beyond its control and the calling of
the Army in aid of civil power is an accepted position in many Constitutional jurisdiction. The invocation
of Article 245 and the convening of Military Courts is in accordance with the general scheme of the
Constitution providing for trichotomy of powers. "
4. Mr. M. Akram Sheikh, learned counsel has appeared for the petitioner in Constitution Petition No.37 of
1998; Constitution Petition No.38 of 1998 was argued by petitioner Syed Iqbal Haider in person; Dr. A.
Basit, learned counsel has appeared for the petitioner in Constitution Petition No.42 of 1998; Constitution
Petition No.43 of 1998 was argued by petitioner Shahid Orakzai in person, and Mr. Aitzaz Ahsan, learned
counsel, represented the petitioner in Constitution Petition No.4 of 1999.
Ch. Muhammad Farooq, learned Attorney-General, represented the Federation assisted by Mr. Tanvir
Bashir Ansari, learned Deputy AttorneyGeneral and Mr. Mushtaq Ali Tahirkhaili, learned counsel, whereas
the Government of Sindh was represented by Mr. Muhammad Iqbal Radd, learned Advocate-General,
Sindh.
The line of argument adopted by the learned counsel for the petitioners in Constitution Petitions Nos.37 of
1998, 42 of 1998 and 4/99 and by the petitioner in Constitution Petition No.43 of 1998 was that the
impugned Ordinance is not sustainable at all, as it is violative of the various Constitutional provisions and
impinges upon the jurisdiction of the Judiciary. whereas petitioner Syed lqbal Haider in Constitution
Petition No.38 of 1998 adopted a different line of argument by urging that the establishment of the Military
Courts was warranted by the facts and the law as, according to him, the same had contributed in bringing
about the normalcy in the troubled city of Karachi but, he urged, certain provisions of the impugned
Ordinance are required to be amended including the addition of a provision for providing the right of
appeal to a convict by way of an appeal in the Supreme Court of Pakistan.
5. Mr. M. Akram Sheikh, learned counsel, has inter alia urged as under:--
(i) That the impugned Ordinance is repugnant to the various provisions of the Constitution inasmuch
as it militates against the role allocated to Legislature and it usurps the judicial function.
(ii) That the Military Courts are not set up anywhere in the world for trial of civilians except under
Martial Law. Establishment of Military Courts otherwise is violative of an inalienable right of a citizen to
be tried by a Court working under the hierarchy of judicial system provided under the Constitution.
(iii) That guarantee to life as envisaged under Article 9 of the Constitution is violated whenever a
person is tried by a Tribunal or Forum not established under the Constitution.
(iv) That the Proclamation of Emergency has no nexus with the power to call Armed Forces in aid of
the civil power.
(v) That the impugned Ordinance has been promulgated on 20-11-1998 on the pretext of situation
obtaining in Sindh, but it has now been extended to the whole of Pakistan by Ordinance I of 1999, dated
30-1-1999.
(vi) That the fact of extending the operation of the Ordinance to the whole of the country leaves no
doubt that the Government is replacing the judicial system in deviation of the Constitution.
(vii) That though this Court has held that the Emergency was validly imposed on 28=5-1998, but at the
same time it also held that suspension of the Fundamental Rights was ultra vires. The impugned Ordinance
is violative of Articles 2A, 4, 9, 10, 14 and 25 of the Constitution.
(viii)That Article 245 of the Constitution does not confer power on the Executive to call the Armed Forces
to take over the judicial function.
(ix) That since the Military Courts do not record reasons for conviction or acquittal, their orders are not
susceptible to judicial review by any of the Superior Courts.
6. Dr. A. Basit, learned counsel for the petitioner in Constitution Petition No.42 of 1998, has
contended as follows:
(i) That in presence of invocation of Article 245 of the Constitution by the Federal Government, the
impugned Ordinance could not have been promulgated.
(ii) That the words "subject to law" referred to in clause (1) of Article 245 relate to the law which
already existed in the form of sections 129, 130, 131 and 131-A of Criminal Procedure Code, which
authorised the civil power mentioned therein to call in aid the Armed Forces in the situations mentioned
therein.
(iii) That the proviso to section 131-A of Criminal Procedure Code clearly indicates that even when the
Armed Forces are to be called under the provisions of the Cr.P.C., they are not authorised to exercise the
power of a Magistrate.
(iv) That under Article 245 of the Constitution the Armed Forces can be called in aid of civil power as a
coercive apparatus for eliminating terrorism in the field and not for holding Military Courts.
(v) That after the amendment of the Preamble by Ordinance I of 1999 on 30-1-1999, the impugned
Ordinance could not remain in the field as the object for which it was promulgated, namely, for
achievement of the objects of the Order made under paragraph (c) of clause (2) of Article 232 of the
Constitution on 30-10-1998 was no longer available.
(vi) That the Courts Martial constituted under the Army Act can be treated as a part of the legal system,
but they are not part of the judicial system as envisaged by tale Constitution and, therefore, are ultra vires
of the Constitution.
(vii) That since a resolution has been moved in the Senate for repeal of the impugned Ordinance, its
continuation has become doubtful and, therefore, the same could not be invoked by the respondent)
Government.
7. Mr. Aitzaz Ahsan, learned counsel for the petitioner in Constitution Petition No.4 of 1999, has
urged as under:
(i) That it is a fundamental experience of criminal jurisprudence that establishment of Military Courts
is not a solution for bringing normalcy when there is wide-spread breakdown of law and order situation.
(ii) That any law setting up Courts that are under the control and superintendence of the Executive is in
conflict with Articles 175 and 203 of the Constitution.
(iii) That the analogy that Article III Courts as distinct from Article 1 Courts under the USA
Constitution may be relevant to the controversy at issue.
(iv) That the impugned Ordinance is violative of Article 25 of the Constitution
(v) That a citizen has an inalienable right to "due process" and "civilian procedure" even of the more
beneficial procedure'.
(vi) That the impugned Ordinance offends the "procedural due process' requirement of Article 9 of the
Constitution.
(vii) That the impugned Ordinance obstructs the Fundamental Rights of the ordinary citizens and is against
the norms of justice.
(viii)That the Constitutional trichotomy of power can only be maintained' when (i) the aggrieved party can
seek review by the Superior Judiciary of the trial court's judgment as a matter of right, (ii) the process of
appointment of Judicial Officers is not within the discretion of the Executive and (iii) a Court is competent
only if it is independent of the Executive.
(ix) That the expression "acting in aid of civil power" used in Article 245 of the Constitution does not cover
the establishment of the Military Courts.
8. Syed Iqbal Haider, who is the petitioner in Constitution Petition No.38 of 1998, has contended as
under:
(i) That the action taken by the Federal Government to assume the powers of the Provincial
Government under Article 232(2)(c) of the Constitution was warranted in view of the fact that during the
last about ten years parallel Governments were run in the Province of Sindh and there was no safety to the
lives or properties of the citizens.
(ii) That the establishment of the Military Courts is also warranted by the facts and the law except that
certain provisions of the impugned Ordinance are required to be amended as was directed by this Court in
the case of Mehram Ali and others v. Federation of Pakistan and others (PLD'1998 SC 1445).
(iii) That under Item 55 of the Federal Legislative List of the 4th Schedule the Parliament is competent
to make law determining the jurisdiction and power of all the Courts except the Supreme Court of which
the jurisdiction can be enlarged but cannot be curtailed
(iv) That in view of the above Constitutional provision a person aggrieved by the order of a Military
Court should be given the right to file an appeal in the Supreme Court of Pakistan.
(v) That section 9 of the impugned Ordinance prohibiting the grant of bail should be amended as to
confer the power on the Courts to grant bail.
9. Mr. Shahid Orakzai, who is petitioner in Constitution Petition No.43 of 1998 has contended as
under:
(i) That under clause (2) of Article 89 of the Constitution the Ordinance promulgated shall be subject
to like restrictions as the power of Parliament to make laws and since Item 1 in the Concurrent Legislative
List expressly excluded the use of Naval, Military and Air Force in aid of civil power, the President had no
power to promulgate the impugned Ordinance.
(ii) That the impugned Ordinance is violative of the Executive, Federal and Judicial Federalism,
inasmuch as it impinges upon the Provincial autonomy as well as on the power of the Judiciary.
(iii) That the impugned Ordinance promulgated pursuant to Order dated 28-5-1998 under paragraph (c)
of clause (2) of Article 232 of the Constitution is mala fide inasmuch as no such law was passed for nearly
five months after the above Order dated 28-5-1998.
(iv) That the Military Courts are functioning illegally as the Federal Government has not issued any
direction to the Chiefs of the Staff of the Armed Forces or an Officer not below the rank of Brigadier or in
equal rank in the Pakistan Army, Pakistan Navy or Pakistan Air Force to convene the above Courts.
Mr. Orakzai has also referred to the various provisions of the Constitution to demonstrate that the same has
provided a framework for guaranteeing the Provincial autonomy and ensuring that the three limbs of the
State, namely, Legislature, Executive and Judiciary act within the delineated sphere.
10. Mr. Ch. Muhammad Farooq, learned Attorney-General, before submitting his formulations on the
Constitutional aspect of the case has referred to the factual aspect obtaining in the Province of Sindh before
and after the invocation of Article 245 of the Constitution. In this respect, he has filed three paper books
marked II, 111 and IV. The paper book marked II contains a report of the Ministry of Interior giving the
break-up of year-wise killings from the Years 1966 to October 1998. It also mentions the details of the high
profilc killings during the year 1997-98. It also contains the details of various other crimes including the
dacoities, robberies, vehicle/motorcycle theft/snatching etc. It also indicates the figures of the killings for
the period from November, 1998 to 23rd January, 1999 i.e. after the taking over of the executive powers of
the Sindh Province by the Governor, which indicates that the killings have been reduced substantially. A
number of photostat copies of newspaper clippings have also been filed in support of the above Interior
Ministry's Report.
It may be observed that paper book marked III contains the photostat copies of the newspaper clippings
containing news items as to the killings, commission of other crimes and calling of strikes etc. for the
period prior to 20-11-1998. Whereas paper book IV comprises photostat copies of newspaper clippings
containing news items for the period commencing after 20-11 1998 i.e. after the taking over of the
executive power by the Governor, which indicates that there has been considerable decrease in killings acrd
commission of other crimes. He also referred to the concise statement filed in the above petitions on behalf
of the Federation.
On the basis of the above material it was urged by Mr. Ch. Muhammad Farooq, learned Attorney-General
that it was the Constitutional duty of the Federal Government by virtue of clause (3) of Article 148 of the
Constitution to protect every Province against external aggression and internal disturbance and to ensure
that the Government of ever), province is carried on in accordance with the provisions of the Constitution,
and that if the Federal Government would not have discharged the above Constitutional obligation, it would
have been a ground of dissolution of the National Assembly and dismissal of the Federal Government in
terms of repealed paragraph (b) of clause (2) of Article 58 of the Constitution, as was held inter alia in the
cases of Khalid Malik and others v. Federation of Pakistan and others (PLD 1991 Karachi 1) and Mohtarma
Benazir Bhutto and another v. President of Pakistan (PLD 1998 SC 388) and, thus, the invocation of Article
245 of the Constitution by the Federal Government and legislation in the form of Ordinance XII of 1998
are in consonance with the Constitution. He also submitted that the approach of the Court should be
dynamic and progressive while construing the various provisions of the Constitution, keeping in view the
situation obtaining in Sindh, which necessitated the above actions. Reliance was placed by him in this
behalf on the judgments of this Court in the cases of State through Advocate-General, Sindh, Karachi v.
Farman Hussain and others PLD 1995 SC 1, Zeeshan Kazmi v. The State PLD 1997 SC 267 at p.272 and
Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 at p.1486.
The learned Attorney-General also referred to various provisions of the Pakistan Army Act to demonstrate
that it is a complete Code dealing with discipline of the Army which included the power to punish the
delinquent army personnel and the civilians who had been made subject to this Act in view of its section 2
(section 2(1)(d)). Reference was also made by him to the cases of Mrs. Shahida Zahir Abbasi and 4 others
v. President of Pakistan and others PLD 1996 Supreme Court 632 at p.672-73 and Brig. (Retd.) F.B.Ali and
another v. The State (PLD 1975 SC 506 at pp.521 and 528) to contend that the trial by the Courts under the
Army Act of civilians is not violative of any of the Constitutional mandate.
11. Having submitted as above, the learned Attorney-General contended that the above petitions involve
the following questions of law:
(i) Whether Ordinance XII of 1998 has been promulgated with competence and lawful authority under
the mandate of the Constitution?
(ii) Whether invocation of Article 245 of the Constitution and the legislation framed thereafter
providing for convening of Military Courts for trial and for hearing of appeals arising therefrom under the
Army Act is violative of, or offends, any provision of the Constitution relating to Fundamental Rights
particularly, Articles 4, 9 and 25?
(iii) Whether Ordinance XII of 1998 is violative of any provision of Articles 175, 202 and 203 of the
Constitution and is within the scope and Scheme of the Constitution?
(iv) Whether Ordinance XII of 1998 is in the nature of a comprehensive direction/law defining limits of
exercise of power by the Armed Forces in aid of civil power while the Federal Government retains full
control of the civil power, and whether such a direction/law is within the intent and spirit of Article 245 of
the Constitution and is not subject to challenge under Article 245(2) of the Constitution?
(v) Whether the Military Courts intended to be convened under the Pakistan Army Act read with
Ordinance XII of 1998 are those Courts which are not envisaged in Articles 175 and 203 of the
Constitution and, therefore, not hit by the above, provisions of the Constitution or by the earlier judgments
of this Court inter alia in the case of Mehram Ali (supra)?
(vi) Whether any person has a vested right in the forum of trial specially when the procedure provided
in the Army Act for holding trial with the right of appeal, having been held to be according to the principle
of fair trial?
(vii) Whether Armed Forces, when they have been called in aid of civil power can be denuded of the
powers/functions and authority lawfully conferred on them under the Pakistan Army Act, 1952 and whether
convening of Courts under Ordinance XII of 1998 is only incidental and ancillary to the aid that the Armed
Forces have to render under the mandate of the Constitution under Article 245?
(viii) Whether the term "aid" employed in Article 245 of the Constitution means help, assistance, support
and strengthening of the existing system and not its replacement and supplantation and whether connotation
"civil power" means power and authority of free political comity vesting in the Federation of Pakistan?
(ix) Whether Ordinance XII of 1998 militates in any manner against the principle of trichotomy of
power?
(x) Whether any Fundamental Rights under Article 17 of the Constitution vesting in any political
party or any member thereof can be alleged to have been violated by the promulgation of Ordinance XII of
1998, and whether any question of public importance in relation to the enforcement of Fundamental Rights
of the petitioners has been raised in these petitions to warrant adjudication by the Supreme Court under
Article 184(3) of the Constitution?
(xi) Whether Articles 8(3) and 148(3) of the Constitution do not make these petitions incompetent and
non-maintainable?
12. Mr. Muhammad lqbal Radd, learned Advocate-General, Sindh, had filed on 16-2-1999 the written
submissions on behalf of the Government of Sindh alongwith copies of newspaper clippings. He also
submitted oral arguments. The thrust of his arguments was that the terrorism was so much organized in
Sindh that it did not allow the ordinary criminal Courts to function because of terrorists' threats to the lives
of the Presiding Officers, case witnesses and the Advocates appearing in the cases. According to him, the
above situation crossed the limits when recently Raja Sikandar, a Public Prosecutor attached to an Anti-
Terrorist Court at Karachi, was brutally murdered outside a school where he had gone to fetch his daughter.
To reinforce the above submissions, he has referred to the various statements showing the pendency of
cases under the Suppression of Terrorist
Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997, in the various Courts in Sindh and
also in the Supreme Court of Pakistan. In this
behalf he has referred to the statement relating to the Supreme Court, which gives the following break up:
YEAR NO. OF APPEALS
PENDING IN S.C.
1. 1997 1
2 1998 22
3. 1999 3
The statement pertaining to the High Court of Sindh in respect of appeals filed under the provisions of
Suppression of Terrorist Activities (Special Courts)
Act, 1975, indicates that there are 186 appeals pending. Whereas under the Anti-Terrorism Act, 1997, 26
appeals are pending. The statement pertaining to the cases under the Suppression of Terrorist Activities
(Special Courts) Act, 1975 for the years from 1990 to 1999, shows that there are 6493 cases pending in the
various Districts of Sindh. He further submitted that after the rendering of the judgment by this Court in the
case of Mehram Ali (PLD 1998 SC 1445) the High Court of Sindh had not disposed of a single appeal out
of 25 appeals pending under the Anti-Terrorism Act. 1997.
13. Before touching upon the merits of the contentions raised by the learned counsel for the petitioners, the
petitioners, the learned Attorney-General and the learned Advocate-General Sindh, I may refer to the
salient features of the impugned Ordinance. It may be observed that the original Preamble to the impugned
Ordinance provided that "Whereas it is expedient to enumerate the powers and duties of the Armed Forces
acting in aid of civil power for the achievement of the objects of the Order made under paragraph (c) of
clause (2) of Article 232 of the Constitution of the Islamic Republic of Pakistan on the 30th October,
1998", but by Ordinance No. I of 1999 promulgated on 30-1-1999 the latter portion of the above Preamble,
namely, "for the achievement of the objects of the Order made under paragraph (c) of clause (2) of Article
232 of the Constitution of the Islamic Republic of Pakistan on the 30th October, 1998", has been deleted. It
may be stated that subsection (1) of section I of the impugned Ordinance gives the above name of the
Ordinance. Whereas, subsection (2) thereof originally provided that it will extend to such areas of the
Province of Sindh in which the Armed Forces are called upon to act in aid of the civil power under Article
245 of the Constitution. The above subsection (2) of section 1 has been amended by Ordinance No.1 of
1999 issued on 30-1-1999, whereby the words "such areas of the Province of Sindh" which appeared in the
above subsection (2) have been omitted and substituted by the words "the whole of Pakistan and shall apply
to such areas".
It may be pointed out that section 2 of the impugned Ordinance gives the definition of the Court by
providing that Court means trial Courts and Courts of appeal which are convened under Pakistan Army
Act, 1952 (Act XXXIX of 1952), Pakistan Air Force Act 1953 (Act VI of 1953) and Pakistan Navy
Ordinance 1961 (Ordinance XXXV of 1961). It may further be noticed that section 3 of the impugned
Ordinance relates to the convening of Courts. It provides that as directed by the Federal Government, the
Chiefs of the Staff of the Armed Forces or an Officer not below the rank of Brigadier or equivalent rank in
Pakistan Navy, or Pakistan Air Force authorised by the concerned Chief of the Armed Forces in this behalf,
may convene as many Courts as may be necessary to try offences triable under the Ordinance including the
convening of Courts of appeals to hear appeals against the decisions made and sentences passed by the
Courts.
It may also be observed that subsection (1) of section 4 of the impugned Ordinance lays down that a Court
convened under section 3 shall have the power to try any person including a person who is not a member of
the Armed Forces who has committed any offence specified in the Schedule to this Ordinance in any area
in which the Armed Forces are acting in aid of civil power and pass any sentence authorised by law within
eight days. It may be pointed out that originally the period for deciding the cases was three days, which was
substituted by eight days by Ordinance XVII of 1998 issued on 22-12-1998. It may further be mentioned
that subsection (2) of above section 4 provides that for the trial of offences under the Ordinance the
procedure provided in the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy
Ordinance, 1961 and the Rules made thereunder shall apply.
It may also be stated that section 5 of the impugned Ordinance deals with the investigation. It lays down
that the investigation for all offences specified in the Schedule to this Ordinance shall be conducted in
accordance with the provisions of the Code of Criminal Procedure (Act V of 1898), and in appropriate
cases the same may be conducted by the Armed Forces. It may be pointed out that the original section 5 of
the impugned Ordinance did not envisage the conducting of investigation by the Armed Forces. The
relevant portion of the original section 5 of the impugned Ordinance provided that "in appropriate cases the
same may be supervised by the Armed Forces under the direction of Federal Government". The above
portion of section 5 has been substituted by Ordinance XVII of 1998 promulgated on 22-12-1998 by the
words "in appropriate cases the same may be conducted by the Armed Forces".
It may be mentioned that section 6 of the impugned Ordinance defines civil commotion as under:
"civil commotion' means creation of internal disturbances in violation of law or intended to violate law,
commencement or continuation of illegal strikes, go-slows, lock outs, vehicles snatching/lifting, damage to
or destruction of State or private property, random firing to create panic, charging Bhatha, acts of criminal
trespass (illegal Qabza), distributing, publishing or pasting of a handbill or making Graffiti or wall-chalking
intended to create unrest or fear or create a threat to the security of law and order or to incite the
commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act XLV o: 1860)." ;
It may further be stated that section 7 of the impugned Ordinance provides sentence for offending above
section 6 by laying down that whoever commits an act of civil commotion shall be punished with rigorous
imprisonment for a term which may extend to seven years, or with fine, or with both- It may also be stated
that section 8 provides right of appeal to a convict as well as to the Federal Government, which right is to
be exercised within three days of the passing of the sentence. It also lays down that the appeal shall be
heard and decided by the Court of Appeals within three working days from the date of its presentation,
which decision shall be final and shall not be called in question before any Court.
It may be pointed out that section 9 of the impugned Ordinance makes the offences covered by the
Ordinance as cognizable and non-bailable.
It may also be stated that section 10 of the impugned Ordinance prohibits the imposition of punishment
retrospectively by providing that a person who has committed an offence before the commencement of the
Ordinance and tried under the Ordinance shall be liable to punishment as authorised by law at the time the
offence was committed. Whereas section 11 of the above Ordinance empowers the Federal Government to
direct transfer of pending cases. Section 13 thereof lays down that the provisions of the Ordinance shall
have effect notwithstanding anything contained in any other law for the time being in force. Section 14
empowers the Federal Government to amend the Schedule to the Ordinance by a notification so as to add
any entry thereto or modify or omit any entry therein for or in relation to offences having a nexus with the
object of the Ordinance. It will not be out of context to point out that a new section 10-A has been added by
Ordinance No.1 of 1999 promulgated on 30-1-1999 authorising the trial in absence of an accused who has
absconded.
Whereas the Schedule to the impugned Ordinance specifies the following offences:
"SCHEDULE
(1) Any offence punishable under this Ordinance.
(2) Offences punishable under Chapter XVI of the Pakistan Penal Code, 1860, except under sections
318 to 322, 326 to 328, 33'7 to 337-J and 337-M to 338-C.
(i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon; or
(ii) if the victim is a member of Police, Armed Forces or Civil Armed Forces or is a public servant; or
(iii) if there are more than one victim; or
(iv) if the victim was subjected to cruelty, brutality, torture or burning.
(3) Offences punishable under sections 295-A, 298-A, 364, 364-A, 365, 365-A and 392 to 402 of the
Pakistan Penal Code (Act XLV of 1860).
(4) An offence punishable under subsection (4) of section 10 of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 (VII of 1979).
(5) .Offences punishable under the Pakistan Arms Ordinance, 1965 (W.P. Ord:XX of 1965).
(6) Offences punishable under sections 7 and 9 of the Anti-Terrorism Act, 1997 (XXXVII of 1997).
(7) An attempt or conspiracy to commit or any abetment of any of the offences under this Ordinance or
this Schedule. "
14. Though the learned counsel for the petitioners, the petitioners in person and the -learned Attorney-
General have advanced very learned and elaborate arguments as is reflected hereinabove, but in my view,
the controversy involved is very short. In a recent judgment in the case of Mehram Ali and others v.
Federation of Pakistan and others (PLD 1998 SC 1445) a Full Bench of this Court while examining the
vires of the various provisions of the Anti-Terrorism Act. 1997 (Act XXVII of 1997) and after referring the
case-law, enunciated the following legal propositions:
"(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the
Supreme Court, a High Court for each Province and such other Courts as may be established by law;
(ii) That the words 'such other Courts as may be established by law employed in clause (1) of Article
175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof;
(iii) That our Constitution recognises only such specific Tribunals to share judicial powers with the
above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court
(Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunal (Article 255). It must
follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the
Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the
Constitution;
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and
control over the subordinate Judiciary vests in High Courts, which is exclusive in nature, comprehensive to
extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the
Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary
and. therefore, any Court or Tribunal which is not subject to judicial review and administrative control of
the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution;
(vi), That the right of 'access to justice to all' is a fundamental right, which right cannot be exercised in the
absence of an independent Judiciary 'providing impartial, fair and just adjudicatory framework i.e. judicial
hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being under
the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet
the mandatory requirement of the Constitution;
(vii) )hat the independence of judiciary is inextricably linked and connected with the process of
appointment of Judges and the security of .their tenure and other terms and conditions."
15. The above-quoted extract from the above judgment in the case of Mehram Ali and others v. Federation
of Pakistan and others (PLD 1995 SC 1445), indicates that it has been inter alia held that our Constitution
recognises only such specific Tribunals to share judicial power with the Courts referred to in Articles 175
and 203, which have been specifically provided by the Constitution itself, like Federal Shariat Court
(Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225) and that
any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share
judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. Admittedly the
Military Courts to be convened under section 3 of the impugned Ordinance do not fall within the category
of the Courts referred to in the above Articles. This was even so contended by the learned Attorney-General
as. reflected from his arguments reproduced hereinabove in para. 11. Neither the above Military Courts nor
the personnel to man the same qualify the other requirements spelled out in the case of Mehram Ali
reproduced hereinabove in para. 14.
The question which needs examination is, as to whether by virtue of invocation of Article 245 of the
Constitution for calling the Armed Forces to act in aid of civil power, the impugned Ordinance could have
been promulgated for convening Military Courts in terms of section 3 thereof. This will, inter alias involve
the determination as to the meaning and import of the expression "The Armed Forces shall………and,
subject to law, act in aid of civil power when called upon to do so" used in clause (1) of Article 245 of the
Constitution. I may, at this stage, reproduce the above Article 245 of the Constitution, which reads as
follows:
"245. Functions of Armed Forces.---(1) The Armed Forces shall, under the directions of the Federal
Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of
civil power when called upon to do so.
(2) The validity of any direction issued by the Federal Government under clause (1), shall not be called
in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which
the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article
245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any
proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil
power.
(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the
Armed Forces start acting in aid of civil powers and pending in any High Court shall remain suspended for
the period during which the Armed Forces are so acting."
It may be highlighted that the original Article 245 comprised what is .now clause (1) thereof. Clauses (2) to
(4) were added by the Constitution (Seventh Amendment) Act, 1977 (Act 23 of 1977) with effect from 21st
April, 1977.
It may be stated that the above-quoted clause (1) imposes two Constitutional duties on the Armed Forces to
be performed upon the direction o~ the Federal Government:
(i) To defend Pakistan against external aggression or threat of war; and
(ii) subject to law, act in aid of civil power when called upon to do so
Whereas clause (2) thereof lays down that the validity of any direction issued by the Federal Government
under clause (1) shall not be called in question in any Court.
It may further be noticed that clause (3) thereof provides that a High Court shall not exercise any
jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the
time being, acting in aid of civil power in pursuance of Article, but subject to the proviso that the
jurisdiction of the High Court is not to be affected in respect of the proceedings pending immediately
before the day on which the Armed Forces start acting in aid of civil power.
It may also be pointed out that clause (4) thereof lays down that any proceedings in relation to an area
referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil powers
and pending in any High Court shall remain suspended for the period during which the Armed Forces are
so acting.
16. 1 may refer to two judgments of Full Benches of Sindh and Lahore High Courts, in which the scope of
clause (1) of above Article 245 of the Constitution has been thoroughly discussed from different angles.
The learned counsel for the petitioners as well as the learned Attorney-General have heavily relied upon the
same.
(i) Niaz Ahmed Khan v. Province of Sindh and others (PLD 1977 Karachi 604). .
This is a judgment of a Full Bench comprising the then Chief Justice and four companion Judges of the
High Court of Sindh in a Constitution Petition filed under Article 199 of the Constitution by petitioner Niaz
Ahmed Khan, an Advocate of the above High Court challenging the imposition of Curfew/Martial Law in
Karachi Division and Revenue District of Haderabad and seeking declaration that all actions taken
thereunder including the fatal shooting of citizens in Liaquatabad on 21st April, 1977 (Friday) afternoon by
the Law Enforcing Agencies deployed in the area was improper, unjustified and without lawful authority.
Further, declaration was sought that section 144, Cr.P.C. was void and unenforceable and that imposition
and/or continuance of Press Censorship by the respondents in that case was illegal and without lawful
authority. Setting up of the Martial Law Courts was also assailed.
The background leading to the filing of the above Constitution Petition was that on 21-4-1977 the President
of Pakistan issued Proclamation of Emergency under clause (1) of Article 232 of the Constitution, which
was followed on the same day by an order in exercise of powers conferred upon him by clause (2) of the
above Article suspending the right to move any Court for the enforcement of the Fundamental Rights. On
the same day the President also issued direction under Article 245 of the Constitution calling upon the
Armed Forces of Pakistan to act in aid of civil power. It may further be stated that Pakistan Army Act,
1952 was also amended on the same day by Pakistan Army (Amendment) Ordinance No.XVIII of 1977,
which was converted into Pakistan Army (Amendment) Act No. X of 1977 with retrospective effect from
21-4-1977, wherein inter alia it was provided that its provisions except for those contained in clause (b) of
its section 2 which extended to the whole of Pakistan, were applicable only to those areas in which the
Armed Forces of Pakistan were for the time being acting in aid of civil power in pursuance of Article 245
of the Constitution. It may also be pointed out that clauses (d) and (dd) of subsection (1) of section 2 of the
Army Act as amended by aforesaid Act X of 1997, provided as follows:-
"(d) persons not otherwise subject to this Act who are accused of--- .
(i) seducing or attempting to seduce any person subject to this .Act from his duty or allegiance to
Government, or
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force
establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of
Pakistan. an offence under Official Secrets Act, 1923; or
(iii) an offence punishable under sections 123. t 23-A. 124-A, 143, 144. 147. 148, 152, 153-A. 188,
193, 224, 225, 283, 302, 304, 307, 325. 326, 332, 342. 353. 364, 366, 376, 392, 395, 396, 397, 431, 435 or
436 of the Pakistan Penal Code (Act XLV of 1860), or the Pakistan Arms Ordinance, 1965 (W.P.
Ordinance XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan
Ordinance, 1971 (XXX of 1971), or any Rules made thereunder or the High Treason (Punishment) Act,
1973 (LXVIII of. 1973), or the Prevention of Anti-National Activities Act, 1974 (VII of 1974), or an
attempt or conspiracy to commit, or an abetment of any of the said offences.
(dd) Persons not otherwise subject to this Act who are accused of having done,any act with intent to
impair the efficiency or impede the working of, or to cause damage to--
(i) any building, vehicle, machinery, apparatus or other property used are intended to be used. for
the purposes of the State or any local authority:
(ii) any railway as defined in the Railways Act, 1890 (IX of 1890). tramway, road. canal, bridge,
culvert, causeway, port, dockyard. lighthouse, aerodrome, or any telegraph, telegraph line or post, as
defined in the Telegraph Act, 1885 (XIII of 1885) or any wireless installation;
(iii) any vessel or aircraft or rolling stock of a railway or tramway;
(iv) any building or other property used in connection with the production, distribution or supply of any
essential., commodity, an` sewage works, mine or factory;
(v) any prohibited place or protected place, that is punishable under any Rules made under the Defence
of Pakistan Ordinance, 1971 (XXX of 1971), or any attempt or conspiracy to do, or an abetment of any
such Act. "
However. it may be pointed out that above para. (iii) of clause (d) and clause (dd) of above subsection (1)
of section 2 of the aforesaid Act were repealed by virtue of repealing. Act X of- 1977 (whereby above
provisions were added in the Army Act) by the Federal Laws (Revision and Declaration) Ordinance, 1981
(Ordinance XXVII of 1981) after rendering of the Full Bench judgment by the Lahore High Court in the
case of Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others
PLD 1980 Lahore 206).
The Defence of Pakistan Ordinance, 1971 was also amended by the Defence of Pakistan (Amendment) Act,
1977 with retrospective effect from 21-4-1977 and inter alia section 15-A was incorporated which
conferred power on the Army Officer to prohibit persons from moving out of doors.
It seems that while the above Constitution Petition was, pending on 6-5-1977 there was announcement
through various news media about the Constitution (Seventh Amendment) Act which was enforced
retrospectively with effect from 21-4-1977 which converted the original Article 245 as clause (1) and added
new clauses, namely., clauses (2) to (4) already referred to hereinabove Because of the above development,
it was concluded by the majority (excluding Fakhurddin G. Ebrahim, J.) that in view of clause (3) of Article
245 the High Court was precluded from exercising its jurisdiction under Article 199 of the Constitution in
respect of the area in which the Armed Forces of Pakistan were for the time being acting in aid of civil
power in pursuance of Article 245 of the Constitution. But at . the same time it was also held that the
Military Courts could not have been established. Reference may be made to the following extracts from the
opinions of Hon'ble Chief Justice Mr. Justice Abdul Kadir Shaikh and his companion Judges:
"Abdul Kadir Shaikh, C.J.-
Under our Constitution, the Federal Government is the Commander-in-Chief in terms of Article 243. The
provisions made in Article 245 to provide for calling upon the Armed Forces to act in aid of civil power has
been parallel in section 8 of the Constitution of United States. . It would be noticed that the power is vested
in the United States in Congress 'for calling out the Militia to execute the laws of the Union; suppress
insurrection ... ... ...' .
The provision made in our Constitution under Article 245 that on the direction issued by the Federal
Government it shall be one of the Constitutional function of the Armed Forces to act in aid of civil power
is, therefore, not unknown to other Constitutional instruments, and this power vested in the Federal
Government is to be understood in the light of the background of the English common law and our own
experience of the two Martial Laws in the past.
The question that has, however, seriously troubled my mind is the aspect of the arguments advanced before
us as to the situation created by an act of Armed Forces which is not taken in aid of civil power but rather
in conflict of it or outside the scope of law.
The Constitution makes it abundantly clear from the language employed in Article 245 itself by stating that
the act in aid of the civil power performed by the Armed Forces is 'subject to law'. The expression 'subject
to law' places embargo on the Armed Forces not to trample upon the law, not to speak of the Constitution
The Armed Forces by very oath of their office administered to them under the Constitution are to bear true
faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan, and not to
engage themselves in any political activity whatever, and to serve Pakistan sincerely and faithfully as
required under the circumstances. The performance of this duty cast, upon them is nothing short of a
Constitutional duty and is made specifically 'subject to law'.
It has been held even under the English common law that the power to declare Martial Law does not
include the power. to supplant civilian law by military orders and supplant Courts by Military Tribunals
where conditions are not such as to prevent the enforcement of the laws by the Courts.
In Sterling v. Constantine (287 US 378 = 77L ed 375) the Chief Justice Hughes delivering the opinion of
U.S. Supreme Court observed: 'Martial Law can never exist where the Courts are open and in the proper
and uninterrupted exercise of their jurisdiction'.
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…………..
I wholeheartedly adopt these principles of law as can be made applicable within the framework of our
Constitution, and would hold that if High Court finds that limits of executive authority have been
transgressed, and that in view of the character of the injury relief under clause (1) of Article 199 of the
Constitution is essential in order to afford protection to which the aggrieved party is entitled, I would
withhold it because the injury is attributable to an order passed by the Armed Forces acting in aid of Civil
Power in terms of clause (1) of Article 245, unless I find that specific bar or limitation in this behalf has
been placed in the other clauses of Article 199, or Article 245 or elsewhere in the Constitution itself. I have
already observed earlier that an embargo has been placed by the Constitution under Article 245 by the
words 'subject to law'. This excludes any scope of an invasion by the Armed Forces which may amount to
transgression of law and, therefore, no act on the part of the Armed Forces would be justified in the garb of
aid to civil power unless it is shown to be under the law.
The quantum of aid to be given and the manner in which this assistance is to be rendered by the Armed
Forces, as a matter of Constitutional duty, depends upon the nature of the direction issued by the Federal
Government in this behalf. Therefore, no action in the garb or aid to civil power by the Armed Forces is
permissible, unless it is also within the four corners of the law.
I have already noticed in the earlier part of this judgment that use of Armed Forces in aid of civil power in
case of failure of the machinery of the civil power may be needed by Civil Courts themselves for the
purpose of performing their own functions, or otherwise the function of the Civil Courts may itself be
threatened. I am, therefore, clearly of the view that the provisions contained in the newly added clauses of
Article 245 do not offend against the inherent framework of the Constitution. "
Agha-Ali Hyder, J.
"23. Under the common law, which in principle was followed in this sub-continent, it was the duty of every
citizen, as of the members of the Armed Forces, to do their duty in case of riot, insurrection, or, insurgency,
With the two traumatic experiences of 1958 and 1969, the framers of the Constitution took care to say that
the members of the Armed Forces would take up the challenge, only when called in aid, under the
directions of the Federal Government. Acting in aid occurs in a Article 190 of the Constitution, the
Executive and Judicial Authorities acting in aid of the Supreme Court, that is they are always at its disposal
to preserve its supremacy and that should be enough to dispel all doubts-about its meaning. It, therefore,
presupposes that the civil power is still there. It is neither supplanted nor effaced out. It is meant to be
preserved. and invigorated through the instrumentality of the Armed Forces. It has not been suggested that
the Administrator can on his own transfer, dismiss or promote, say any of the Deputy Commissioners of
Karachi. They are on the scene, because in an hour of distress or widespread disturbances, the civil power
finds itself unable to cope up with the situation, without the assistance of people, who are better trained to
meet such a threat. The occasion for the call is to safeguard the civil power, and other jobs they might be
entrusted to do, would be incidental, as under the provision of the Defence of Pakistan Ordinance or its
Rules. It, therefore; stands to reason that the Government should be solicitous enough to remove all hurdles
in their way for quelling the disturbance or disorder, so that normalcy is restored at the earliest . .... ..
... ... ... ... ..... .... .... .... .. ... .......
24 .. .... ... ... ... ..... .... .... .... .. ... ...
... ... ..... .... ....
It was not an occupied foreign territory in a theatre of War where the will of the Commander was to be the
Supreme Law. The Administrator cannot get the status of supreme legislative, judicial, and executive
authority. Actually our Constitution has avoided the use of the term Martial Law of any sort. All their
actions are because of the 'necessity' focussed in a certain direction, and with a certain objective before
them. That is what they were called for. So long as the members of the Armed Forces work within the
scope of their authority, or, within its pith and substance, the High Court, will not have the jurisdiction to
intermeddle in their affairs. The other clauses of Article 245 have to be read with clause (1). But if a
member of the Armed Forces took upon himself to order an estranged wife to rejoin the roof of her
husband, or for example used his authority to assist a lender to recover his loans from a fellow citizen then
he is not functioning subject to law, and therefore, the mischief of the amendment will not be attracted.
Similarly, it cannot be spelled out that the jurisdiction of the High Court will be suspended in a case arising
out of a dispute between an employer and an employee from the Labour Courts, or an order of say a Deputy
Land Commissioner. However, as the allegations on which the petition is founded, pertain to the function
of the members of the Armed Forces, while dealing with the disorder in this area of their operation,
pursuant to a direction from the Federal Government, I agree that the proceedings stand suspended."
Fakhruddin G.Ebrahim. J.
" 11. Now the Armed Forces who are under the command of the Federal Government can be called in aid
of Civil Power under Article 245 of the Constitution under several circumstances such as for maintenance
of essential services; to meet a situation arising out of national calamity like flood or earthquake or to quell
or prevent internal large scale disturbances. The learned counsel contended, and it is admittedly so, that in
the present case the Armed Forces have been expressly called to aid the Civil Power in the maintenance of
law and order and security and no more. It was contended that the expression 'to act in aid' also occurs in
Article 190 of our Constitution which requires that all Executive and Judicial Authorities throughout
Pakistan shall act in aid of the Supreme Court. The expression 'to act in aid of has not been defined in any
legal dictionary but the ordinary meaning of 'aid' is, to come to the assistance of or to render help. It,
therefore, follows that the person who comes to the aid or assistance of another does not displace the other
or restrict the latter's authority. Therefore, the Civil Power in aid of which the Armed Forces have been
called for the limited purpose, it was argued has no power to take any action or make any order and must
under all circumstances follow the directions of the Civil Power who also cannot abdicate its normal
functions. It was on this basis that the learned counsel challenged the various orders and directives issued
by the Military Authorities as being without lawful authority. I am, however, of the view that the
expression 'acting in aid of is itself capable of a connotation which confers upon the person called upon to
aid to so act and perform such functions as may achieve the purpose for which the aid is sought. The
Executive or the Judicial Authority when it performs its obligation, namely acts in aid of Supreme Court
under Article 190 does so in pursuance of that Article independent of any other law. In the present case the
Armed Forces have been called into aid the Civil Power for the maintenance of law and order and security
and it must follow therefrom that they muse possess Police Powers to be able to perform this limited
function and if it is established that the Armed Forces are performing Police functions for the limited
purpose of suppressing riot or preventing threatened disorder, it cannot be said. that in so acting then are
travelling beyond the duty assigned to them by the Constitution. The learned counsel vehemently argued
that the Armed Forces in these areas are exercising powers beyond and in excess of Police powers. The
complaint is not altogether unjustified. Our attention was invited to the Amendment of the Army Act and
the delegation of powers under the Defence of Pakistan Ordinance in favour of the Armed Forces. As to the
former it displaces the Civil Courts which is an important part of Civil Power in the aid of which the
Armed Forces have been called, and as to the latter, which has been described by a person no less than the
present Prime Minister as 'formidable disguise of legal form', it enables the Armed Forces to practically run
a parallel Government. I am clear in my mind that neither these laws nor any other law can enable the
Armed Forces to act in excess of their functions provided in Article 245.
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" 14. The primary function of the Armed Forces under Article 245 is to defend Pakistan against external
aggression or threat of war. The other function of a lesser import is to be act in aid of Civil Power when
called upon to do so but subject to law. I have already stated earlier that the words 'act in aid of have its
own connotation, namely, to come to the help or assistance of the Civil Power and in the present case
expressly for the limited purpose of maintaining law and order and security in its narrow sense of aiding in
suppression of a riot or tumult actually existing or preventing one that is threatened so that the Civil Power
is enabled to perform its normal functions. To enable the Armed Forces to perform this limited function
they must of necessity be clothed with Police Powers and to constitute a valid exercise of such powers it
must be neither arbitrary nor excessive and subject always to law. The actions of the Armed Forces must be
germane only to the restoration of peace and tranquillity. It will be no answer that a law permits them to act
in excess of this limited and confined function for no law can enlarge the functions of the Armed Forces
beyond the mandate of the Constitution contained in Article 245. No law, therefore, can enable the Armed
Forces to exceed their assigned duty under the Constitution and even in relation to a law enabling them to
perform their assigned function of maintenance of law and order and security, any interference in the
citizens' personal freedom or property-rights must be justified, as in the case of Police Powers, by necessity
actually existing or reasonably presumed. The test is whether the interference is necessary in order to
perform the duty or restoring order. To give a specific instance a law may provide or such a power may be
implicit in the performance of the duty cast, for imposition of curfew, but its exercise must carry the
restraint of necessity and reasonableness. No law can permit or empower the Armed Forces to shoot at site
a person who violates the curfew simpliciter so as to cause his death or bodily harm for such a grave action
must have for its justification imminent and grave public necessity. It may be that in performance of its
duty the Armed Forces in the exercise of Police Powers act independently of the Civil Authority but the
Armed Forces cannot abrogate, abridge of displace Civil Power of which Judiciary is an important integral
part. The Armed Forces, therefore, can certainly apprehend those who disturb or threaten to disturb peace
and tranquillity but such persons, in my humble view, can only be tried by ordinary Civil Courts which
have admittedly not ceased to function. The argument that Military Tribunals will ensure prompt
punishment as an example for others overlooks the disadvantages of a Military trial and underestimates the
importance of a trial by an ordinary Civil Court who can if need be, given directions to give priority for the
disposal of the cases arising out of the present law and order situation. If the political parties or political
activities are not banned in the specified areas, by the Civil Power, both the Public and the Press have a
right, so long as they remain within the bounds of law, to give expression to their views in a manner
recognized by law, for a call to aid the Civil Power does not operate to suspend civil law or to negate
individual rights of person and property. "
(ii) Darwesh M. Arbev, Advocate v. Federation of Pakistan through the Law Secretary and 2 others
(PLD 1980 Lahore 206) (supra).
A number of Constitution Petitions were filed in the Lahore High Court assailing the imposition of Martial
Law in Lahore and issuance of direction b5 the Federal Government under Article 245(1) of the
Constitution on 21-4-1977. whereby the Armed Forces of Pakistan were directed, subject to law, to act in
aid of civil power within the Municipal limits of Lahore District. Notices were issued to the Federal
Government and also to the Advocate-General, Punjah. While the above petitions were still being argued
the Parliament passed the above Constitution (Seventh Amendment) Act, 1977, the details of which have
already been discussed hereinabove while dealing with the case of Niaz Ahmed Khan (supra) and,
therefore, need not be repeated. The above Constitution Petitions were heard by a Full Bench comprising
Aslam Riaz Hussain, C.J four companion Judges. The petitions were allowed and it was concluded the
establishment of Military Courts for trying civilians of Lahore for offences which had no nexus with the
object for which they were said to have come, they (i.e. the Armed Forces) were not acting in aid of civil
power but to derogation or replacement thereof and hence the bar contained in clause (3) of Article 245 of
the Constitution was not attracted. In this regard it may be pertinent to reproduce the following extracts
from the above judgment:
Aslam Riaz Hussain, C.J.
The Pakistan Army Act is primarily meant for maintaining the internal discipline of the personnel of the
Armed Forces or the civilians directly connected with them, e.g., camp fellows etc. No doubt some
categories of civilians who were not previously subject to the Army Act were made subject to it by an
earlier amendment whereby clause (d) with paragraphs (i) and (ii) were added to section 2(1) of the said
Act, i.e., persons who seduce or attempt to seduce any person subject to the said Act (i.e. a member of the
Armed Forces) from his duty or allegiance to the Government, or any person accused of an offence in
relation to any defence installation, ship or air-crafts etc. Evidently such person can be said to have some
connection with the Armed Forces. But to make the entire civil population of the country, or a Province or
any part thereof, subject to the Pakistan Army Act and triable by Courts Martial, may be termed as a fraud
upon the Statute.
Even if this aspect of the matter is ignored we feel that it is sufficient to note, for the purpose of the
question under consideration, that no nexus whatsoever has been provided by the amendment in question
between the offences made exclusively triable by the Courts Martial by virtue of this amendment and the
object for which the Armed Forces have been called in the District of Lahore, i.e., to restore or maintain
security, and, law and order. The result is that the Armed Forces are now trying civilians for cases, like the
murder of nurse named Ghazala by her paramour and other similar cases with which they had no concern
whatsoever. Moreover, even under Common Law of England, when the Armed Forces are called in (under
the said law) to quell a disturbance, to put down an insurrection or to control violence, they are given
powers to try, convict and sentence offenders only when law and order situation has deteriorated to such an
extent that the ordinary Courts are unable to function. But in the present case whet) the Courts were
admittedly open and functioning without any hindrance from any section of the population, the Armed
Forces have, as a result of this Enactment (Act X of 1977) been placed in a position where Courts Martial
set up by them have superseded the ordinary criminal Courts. The mere fact that an Army Officer
authorised in this behalf can transfer a case to the ordinary Court in his discretion, does not improve the
status of the ordinary Court, but, in fact, goes to show that they have been subordinated to the discretion of
such an Army Officer. It is, thus, obvious that instead of acting in aid of the civil power the Armed Forces
are acting in supersession and displacement of the same.
19. having found that the Armed Forces are acting in such a manner as mentioned above, we are of the
view that the second jurisdictional fact mentioned by the learned Attorney-General, is not established,
Consequently, we hold that clause (3) of Article 245 of the Constitution, does not have the effect of
ousting-the jurisdiction of this Court under Article 199 of the Constitution. "
"Moreover, it is for the first time that an Oath has been prescribed for the members of the Armed Forces in
the Constitution of 1973. Earlier they only took an oath prescribed in the Pakistan Army Act. By these
measures, the framers of the Constitution, the most prominent amongst whom was the Prime Minister
himself. brought the Armed Force under the command of the Prime Minister and, thus, ensured that Martial
Law cannot be imposed under the Constitution as they have been bound to uphold the Constitution.
Considering these facts in the light of the speech of the Prime Minister, reproduced above it is evident that
there was a conscious effort to make foolproof arrangement that the Martial Law cannot be imposed under
the present Constitution o1 Pakistan. However, if the Constitution is abrogated, set aside or placed in state
of suspended animation or hibernation, it m;.-ht be possible to impose Martial Law outside the
Constitution. Such an action may of may not be justified by the doctrine of necessity. The reason for such
an action would depend op the circumstance prevailing at that particular time, but the justification or the
existence of necessity of such action would depend on the facts and circumstances of each case.
Another pertinent fact which requires to be noticed is that the pari materia Articles of the other
Constitutions relating to indemnity (mentioned above) provided not only for passing laws indemnifying
acts done by the concerned persons (including army officers) during the period of Martial Law, but also
provided for making of laws validating 'any sentence passed, punishment inflicted and forfeiture ordered'
during that period. But Article 237 of the present Constitution does not provide for making laws validating
any sentence passed, punishment inflicted and forfeiture ordered by them, i.e. by Military Courts. This
glaring difference clearly indicates that not only does the present Constitution not envisage the imposition
of Martial law but it also does not envisage the exercise by the Armed Forces of any judicial functions, as is
being exercised by them under the cover of the abovementioned amendments in the Pakistan Army Act. "
Karam ElaheeChauhan, J
„8 ... ... ... ... ..... .... .... .... .. ... ... ... :
..... .... If we study the present Article 237 (reading it together with Article 245) we note
that the Federal Government can direct the Armed Forces of Pakistan, subject to law, to act in aid of civil
power when called upon to do so. This shows, firstly, that as per Article 245 the scope of calling the army
confining ourselves to the subject in hand, is restricted simply to act in aid of civil power and not in
supersession of the civil power. When the army, therefore, is called in aid of civil power it cannot replace
that power. If civil power in judicial sphere is being exercised by ordinary Civil Courts, the same cannot be
suspended or replaced by Military Courts. This is one essential demarcating barrier which cannot be
crossed so as to enhance the power, jurisdiction or role of Armed Forces in this context. Secondly, if we
compare Article 237 with the previous corresponding Article 278 of the Interim Constitution Article 223-A
of 1962 Constitution and Article 196 of 1956 Constitution we note that whereas in all predecessor Articles
the word 'Martial Law' duly occurred, this word was significantly omitted from Article 237. This shows
that if under any of the previous Articles there was a scope for, imposing, what may be called, Martial Law
against internal disturbances [which was the theme of the previous Articles and the present Article 2373,
that was done away with. After having so buried that idea, as was announced by Mr. Zulfikar Ali Bhutto
himself in his speech quoted in our earlier short order, it is no longer justified to bring it back again by
means of general amendments in existing laws or by promulgation of such new laws which purport to
authorise governance through Military Tribunals by replacement of Civil Courts in the garb of making law
for acting in aid of the civil power. Thirdly, another significant factor to be taken serious note of is that
whereas in the corresponding Articles power for passing of indemnity Acts extended inter alia to 'sentence
passed, punishment inflicted or forfeiture ordered', but these words have also been omitted from the present
Article 237 which supports the view that the deletion of both, namely, of the word 'Martial Law' and the
other words hereinbefore quoted was with an intent to do away with imposition of Martial Law or exercise
of judicial powers by army during that period and to restrict army assistance only to the extent of acting in
aid of civil power and not on set up Courts Martial etc.
This will show that the pattern of our Constitution is to vest all executive authority in the Prime Minister
who is obviously a political head of a political party. His orders and directions may sometimes partake of
the character of political orders and political directions, for example, for stemming up his own political
party and position at all cost even during periods when otherwise it may become very shaky for various
reasons. Lest he may utilise army for his own political ends, Article 245 is a check on him when it states
that Armed Forces can be called under his directions only to act in aid of civil power and not beyond that.
This check in this way purports to save the minority from the tyranny of the majority and also save those
who oppose Government policies from the wrath of the group in power. It will, therefore, be in keeping
with the object and spirit of this Article if it is held that it does not authorise a political Government to rule
through Armed Forces so as to clothe them with such powers and jurisdiction which purport to replace the
civil power. This clearly negates the deployment of Armed Forces as a machinery for running the
Government through them or for imposing Martial Law for that purpose. Fifthly, the phrase 'subject to law'
in Article 245, if read in the light of what has been written above and in the context in which it occurs,
shows that in addition to the already restricted scope of the purpose for which the army is to be called,
namely, in aid of civil power, its scope may further be limited or controlled by law and not that it is to be
increased by any subsidiary law beyond the barriers contained in Article 245 itself. If the scope of the
Article is simply to act in aid of civil power, it cannot be enlarged by ordinary laws, inasmuch as, that
which is not authorised by the Constitution cannot be authorised by other laws. Sixthly, the words 'subject
to law' from another point of view mean that while acting in aid of civil power the armed forces are not to
get an open licence to do anything they like at their sweet or arbitrary will, and shall remain subject and
answerable to law -if they exceeded the relevant limits.. This is to keep the activities of the armed forces,
when acting in aid of civil power, under control rather to allow them to go out of bounds. There is yet
another aspect of the words 'subject to law' which has been dealt with in a later place of this judgment in
connection with the relevant context and subject mentioned therein.
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Respectfully speaking, the position and the point is not so simple. Since it is the Constitution which by its
own Article 245 has restricted the limits for, and the scope within which, the army can be called, the
relevant law which is to be made with reference to this Article must also remain within the same limits and
scope. If any law enlarges that scope it will conflict with Article 245. The scope of that Article can be
enlarged only by a Constitutional amendment and not by ordinary law. If the scope of army intervention is
desired to be expanded, this should first be provided for or enshrined in Article 245 itself. Only then could
a law enlarging the powers of the armed forces to relevant extent, be made. But this could not be done so
long as the basic Article remains as it is in its present form. It is where the real catch in this case exists.
What the authorities seem to have done is that without enlarging the scope of Article 245, or without
suitably amending it, they have promulgated laws, taken actions executive or otherwise, beyond the limits
of Article 245 and now they want to adjust or place them under that Article which, as already analysed, is
not wide enough to contain them.
11 .... .... .. ... ... ... ... ..... .... .... .... ..
... ... ... ... ..... ., ....
The correct approach is to see whether despite the power of Parliament to constitute Special Tribunals and
Courts, can a Court Martial be constituted as a Court of trial for offenders for even such ordinary civil
offences which are not connected with the disturbance of the law and order situation in the area where the
army was called simply in aid of civil power and not for any purpose beyond that. Since the scope and
sphere of action or army in this exercise is strictly limited to aiding the civil power it is this infirmity which
disqualifies it to act in supersession of the Civil Courts and even an Act of Parliament will not enable them
to perform such judicial functions unless scope of Article 245 is first suitably amended for this purpose."
Shameem Hussain Kadri,. J.
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... ... ... ... ..... .... ....
Article 245 of the Constitution confers two duties on the Armed Forces of Pakistan, namely, to defend
Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power, when
called upon to do so. While acting in defence of the country on the direction of the Central Government the
will of the Commander will prevail in the occupied territories, once such direction is issued. But when they
are called upon to act in aid of civil power, they have to act subject to law and not according to the will of
the Commander. Islamic history will show that when Commanders were deputed for 'Ghazvat' by the Holy
Prophet, the Great General, they were directed to 'do not destroy crops and gardens, do not kill old men,
women and children, do not destroy the places of worship of non-Muslims'. Our Army has to look to the
conduct and performance of the renowned Muslim Generals instead of looking towards Field Martial
Montgomery, Romell, Churchill and others. The other function of the Army is to respond to the call when
made to come in aid of civil power for any necessity of restoration of civil order and to meet the calamity,
flood, earthquake or national disaster of any kind.
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Can it be said that the Executive and Judicial Authorities while acting in aid of Supreme Court supersede or
divest the Supreme Court of all the judicial powers or replace it by their own authority. The plain answer is
'No,' The other phrase 'subject to law' clearly indicates that the Armed Forces have to function subject to
law and that is obviously in aid of civil power. Civil Power is in contradistinction to Military power or
Army power, Civil power I have already discussed has three limbs, namely, executive power, legislative
power and judicial power. Can the Armed Forces acting in civil aid take upon themselves all these three
functions and can they style themselves as Martial Law Administrators. The answer is obviously in the
'Negative'. The instructions and order issued by The Martial Law Administration of different zones and the
press releases have been placed on the record. Some of them reflect that the Army is alleged to have over-
stepped in all the three fields."
Zakiuddin Pal. J.
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... ... ... ..... .... ....
"The learned counsel for the respondents have not been able to show any Article in the Constitution
indicating that when the Armed Forces are called to restore law and order, they are to act in replacement
and supersession of civil authorities. Imposition of any type of Martial Lave means suspension of ordinary
Courts and functioning of all civil authorities and temporary or otherwise rule by the Armed Forces of the
country or any part thereof through Military Tribunals. Legislative. measures, directions etc. The provision
of Article 245 does not authorise the Armed Forces to act in such manner. If they replace or supersede the
civil power, issue directions or instructions to that, take over the ordinary administration of the area where
they have been called to render aid to the civil authority, take such measures and issue such directions
which aim at legislation and law making. then such activities of the Armed Forces would not be within the
scope of Article 245. The said Article authorises the Armed Forces to act in aid and not in supersession of
civil authority.
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Similarly subsection (3) of section 15-A of the Defence of Pakistan Ordinance being beyond the scope of
Article 245, is ultra vires. It is for the competent Authority to determine as to what quantum of force is to
be used against the persons violating certain order and creating law and order situation. Any lawful order
passed in this behalf by the said civil authority may be carried out by the Armed Forces and in that situation
the forces may be deemed to be acting in aid. If an Army Officer, himself, starts shooting the persons
violating any order in the absence of any direction given to him by a competent civil authority, then he
cannot be deemed to be acting within the scope of Article 245.
It may be noticed that the framers of 1973 Constitution have been very careful in not giving any such
power to the Armed Forces which is now being given to them through the aforesaid sub-Constitutional
legislation. I am afraid the aforesaid, legislation being in direct conflict with Article 245 cannot be
sustained until and unless scope of the Article is widened and such powers which are aimed to be given to
the Army Officers by the aforesaid amendment are given to them by amending the Constitution. If the
Legislature had intended to give such powers to the Army then the scope of Article 245 would have been
determined accordingly. In the absence of that, the aforesaid subConstitutional legislation cannot be
maintained."
17 The above two judgments of the High Courts lay down the following:
(i) That the scope and purpose of Article 245 is restricted, namely, it is called in aid of civil power
subject to law and its scope may further be limited or controlled by law but cannot be increased by any
subsidiary law beyond the purview of Article 245;
(ii) That the words "act in aid" have their own connotation, namely, to come to help or assistance of the
civil power for maintaining law and order and security;
(iii) That the words "act in aid" employed in clause (1) of Article 245 dispel all doubts about the scope
of the above Constitutional provision inasmuch as it presupposes that the civil power is still there while the
Armed Forces act in aid of civil power;
(iv) That in case of invocation of Article 245 of the Constitution the civil power is neither supplanted
nor effaced out but it is preserved and invigorated through the instrumentality of the Armed Forces;
(v) That since the scope and sphere of action of Army under Article 245 is strictly limited to aiding a
civil power, it Msqualifies the Army to act in supersession of the Civil Courts and even an Act of
Parliament cannot enable them to perform such judicial functions;
(vi) That the language employed in Article 190 that "all Executive and Judicial Authorities throughout
Pakistan shall act in aid of the Supreme Court" reinforces the conclusion that the civil power is neither to
be supplanted nor to be effaced out;
(vii) That the use of Armed Forces in aid of civil power in case of failure of the machinery of civil power
may be needed by the Civil Courts themselves for the purpose of performing their own functions;
(viii)That the quantum of aid to be given and the manner in which this assistance is to be rendered by the
Armed Forces as a matter of Constitutional duty depends upon the nature of the direction issued by the
Federal Government in this behalf and such direction should also to be within the ambit of the law and the
Constitution;
(ix) That to enable the Armed Forces to perform their aforesaid limited function/duty, they must of
necessity be clothed with Police Powers and to constitute valid exercise of such power, it must neither be
arbitrary nor excessive as it is subject to law;
(x) That the argument that the Military Tribunal will ensure prompt punishment as an example for
others overlooks the disadvantages of military trial and underestimates the importance of a trial by an
ordinary Civil Court;
(xi) That Article 245 of the Constitution cannot be invoked by a Political Government to rule through
the Armed Forces so as to clothe them with such powers and jurisdiction which purports to replace the civil
powers; and
(xii) That the language employed in Article 245 of the present Constitution as compared to the language,
which was used in the corresponding Articles of the late Constitutions, namely, Article 199 of 1956
Constitution, Article 223-A of 1962 Constitution and Article 278 of the Interim Constitution, 1972, clearly
indicates that the present Constitution does not envisage the imposition of Martial Law,
18. Reference may also be made to a recent judgment of the Indian Supreme Court, which has direct
bearing on the point involved, namely, in the case of Naga People's Movement of Human Rights v. Union
of India (AIR 1998 Supreme Court 431).
In the above case a number of direct Constitution Petitions were filed in the Indian Supreme Court and the
question was also brought by way of appeals assailing the validity of the Armed Forces (Special Powers)
Act, 1958 and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam. The above
Central Act was enacted in 1958 to enable certain powers to be conferred upon the members of the Armed
Forces in the disturbed areas in the State of Assam and the Union Territory of Manipur. However, by Act 7
of 1972 and Act 69 of 1986 the Central Act was amended and its application was extended to the whole of
State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The expression
"disturbed area" has been defined in section 2(b) to mean an area which is for the time being declared by
notification under . section 3 to be a disturbed area. Whereas section 3 thereof envisages declaring the
whole or any part of . State or Union Territory to which the Act is applicable to be a disturbed area through
notification. Section 4 of the above Central Act provided as follows: .
"4. Special powers of the Armed Forces.---Any Commissioned Officer, Warrant Officer, Non-
Commissioned Officer or any other person of equivalent rank in the Armed Forces may, in a disturbed
area,-
(a) if he is of opinion that it is necessary so to do, for the maintenance of public order, after giving such due
warning as he may consider necessary fire upon or otherwise use force, even to the causing of death,
against any person who is acting in contravention of any law or order for the time being in force in the
disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things
capable of being used as weapons or of fire-arms, ammunition or explosive substances;
(b) if he is of the opinion that it is necessary so to do, destroy any arms dump, prepared or fortified
position or shelter from which armed attacks are made or are likely to be made or are attempted to be made,
or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or
absconders wanted for any offence;
(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a
reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use
such force as may be necessary to effect the arrest;
(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover
any person believed to be wrongfully restrained or confined or any property reasonably suspected to be
stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such
premises, and may for that purpose use such force as may be necessary.”
It may be pertinent to mention that the vires of the above Act was assailed. The `defence of the Union was
that Entry 2-A and Article 257-A in List 1 incorporated by the Constitution Forty-second Amendment Act,
1976 empowered the Parliament to enact the same. The above Entry 2-A in the Union List and Article 257-
A read, as follows:
Entry 2-A
"2-A. Deployment of any Armed Force of the Union or any other force subject to the' control of the Union
or any contingent or unit thereof in any State in aid of the civil power, powers, jurisdiction, privileges and
liabilities of the members of such forces while on such deployment."
Article 257-A
"Article 257-A. Assistance to States by deployment of Armed Forces or other forces of the Union.--(1) The
Government of India may deploy any armed force of the Union or any other force subject to the control of
the Union for dealing with any grave situation of law and order in any State.
(2) Any Armed Force or other force of any contingent or unit thereof deployed under clause (1) in any
State shall act in accordance with such directions as the Government of India may issue and shall not, save
as otherwise provided in such directions, be subject to the superintendence or control of he State
Government or any officer or authority subordinate to the State Government.
(3) Parliament may, by law, specify the powers, functions, privileges and liabilities of the members of
any force or any contingent or unit thereof deployed under clause (1) during the period of such deployment.
"
Inter alia the question before the Indian Supreme Court was what is the meaning and import of the
expression "in aid of civil power" used in above Entry 2-A. The above question was answered by a Full
Bench of the Indian Supreme Court, as follows:
"The power to make a law providing for deployment of the Armed Forces of the Union in aid of the civil
power in the State does not comprehend the power to enact a law which would enable the Armed Forces of
the Union to supplant or act as a substitute for the civil power in the State. We are, however, unable to
agree with the submission of the learned counsel' for the petitioners that during the course of such
deployment the supervision and control over the use of Armed Forces has to be with the civil authorities of
the State concerned or that the State concerned will have the exclusive power to determine the purpose, the
time period and the areas within which the Armed Froces should be requested to act in aid of civil power.
In our opinion, what is contemplated by Entry 2-A of the Union List and Entry 1 of the State List is that in
the event of deployment of the Armed Forces of the Union in aid of the civil power in a State, the said
forces shall operate in the State concerned in cooperation with the civil administration so that the situation
which has necessitated the deployment of the Armed Forces is effectively dealt with and normalcy is
restored. "
As regards the scope of inter alia above-quoted section 4 of the above Central Act the following
observations were made:
"Does the Central Act enable the Armed Forces to supplant or act as substitute for civil power after a
declaration has been made under section 3 of the Central Act? In view of the provisions contained in
sections 4 and 5 of the Central Act the question must be answered in the negative. The power conferred
under clause (a) of section 4 can be exercised only when any person is found acting in contravention of any
law or order for the time being in force in the disturbed area prohibiting the assembly of five or more
persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms,
ammunition or explosive substances. In other words, the said power is conditional upon the existence of a
prohibitory order issued under a law, e.g. Cr.P.C. or the Arms Act, 1959. Such prohibitory orders can be
issued only by the civil authorities of the State. In the absence of such a prohibitory order the power
conferred under clause (a) of section 4 cannot be exercised. Similarly, under section 5 of the Central Act
there is a requirement that any person who is arrested and taken into custody in exercise of the power
conferred by clause (c) of section 4 of the Act shall be made over to the officer in charge of the nearest
police station with the least possible delay, together with a report of the circumstances occasioning the
arrest. Maintenance of Public Order involves cognizance of offences, search, seizure and arrest followed by
registration of, report of offences (F.I.Rs.), investigation, prosecution, trial and, in the event of conviction,
execution of sentences. The powers conferred under the Central Act only provide for cognizance of
offences, search, seizure and arrest and destruction of arms dumps and shelters and structures used as
training camps or as hide-outs for armed gangs. The other functions have to be attended by the State
criminal justice machinery., viz., the police, the Magistrates, the prosecuting agency, the Courts, the jails,
etc. This would show that the powers that have been conferred under section 4 of the Central Act do not
enable the Armed Forces of the Union to supplant or act as substitute for the civil power of the State and
the Central Act only enables the Armed Forces to assist the civil power of the State in dealing with the
disturbed conditions affecting the maintenance of public order in the disturbed area."
As to the role of the Armed Forces, the following observations were made:-
"There is one other aspect which cannot be ignored. The primary task of the Armed Forces of the Union is
to defend the country in the event of war or when it is faced with external aggression. Their training and
orientation is to defeat the hostile forces. A situation of internal disturbance involving the'local population
requires a different approach. Involvement of Armed Forces in handling such a situation brings them in
confrontation with their countrymen. Prolonged or too frequent deployment of Armed Forces for handling
such situations is likely to generate a feeling of alienation among the people against the Armed Forces who
by their sacrifices in the defence of their country have earned a place in the hearts of the people. It also has
an adverse effect on the morale and discipline of the personnel of the Armed Forces. It is, therefore,
necessary that the authority exercising the power under section 3 to make a declaration so exercises the said
power that the extent of the disturbed area is confined to the area in which the situation is such that it
cannot be handled without seeking the aid of the Armed Forces and by making a periodic assessment of the
situation after the deployment of the Armed Forces the said authority should decide whether the declaration
should be continued and, in case the declaration is required to be continued, whether the extent of the
disturbed area should be reduced."
The above judgment of the Indian Supreme Court is in line with the above two judgments of Sindh and
Lahore High Courts in the cases of Niaz Ahmed Khan and Darwesh M. Arbey (supra), respectively,
inasmuch as it clearly lays down that the power to make a law providing for deployment of the Armed
Forces of the Union in aid of the civil power in the State does not comprehend the power to enact a law
which would enable the Armed Forces o: the Union to supplant or to act as a substitute for the civil power
in the State. It also highlighted the adverse effects on the Armed Forces on account of their frequent
deployment in aid of the civil power of the State.
19. The learned counsel for the petitioners have referred to certain Dictionaries to show the meaning of the
word "aid" used in Article 245. The learned Attorney-General besides referring dictionary meaning of the
above word has referred to the meaning of the words "act", "civil" and "power" in the Black's Law
Dictionary, Fifth Edition, which read as follows:
BLACK'S LAW DICTIONARY

Act. Denotes external manifestation of actor's will. Restatement, Second, Torts $ 2. Expression of will
or purpose; carries idea of performance; primarily that which is done or doing; exercise of power, or effect
of which power exerted is cause; a performance; a deed. In its most general sense this noun signifies
something done voluntarily by a person, the exercise of an individual's power ... ..."
Aid. To support; help, assist or strengthen. Act in cooperation with supplement the efforts of others.
State v. Upton, Lowa, 167 N.W.2d 625, 628.
Distinguished from abet. "Aid" within aider and abettor statute means to help, to assist, or to strengthen
while "abet" means to counsel, to encourage, to incite or to assist in commission of criminal act.
State v. Trocodaro, 36 Ohio App. 2d 1,301 N.E.2d 898, 902.
Civil. Of or relating to the State or its citizenry. Relating to private rights and remedies sought by civil
actions as contrasted with criminal proceedings.
The word is derived from the Latin civilis, a citizen. Originally, pertaining or appropriate to a member of a
civitas or free political community; natural or proper to a citizen. Also, relating to the community or to the
policy and Government of the citizens and subjects of a State. .
Power. The right, ability, authority or faculty or doing something. Authority to do any act which the grantor
might himself lawfully perform. Porter v. Household Finance Corporation of Columbus, D.C. Ohio, 385 F.
Supp. 336, 341.
A power is an ability on the part of a person to produce a change in a given legal relation by doing or not
doing a given act. Restatement, Second, Agency, $ 6; Restatement, Property, $ 3.
In a restricted sense a "Power" is a liberty or authority reserved by, or limited to, a person to dispose of real
or personal property, for his own benefit, or benefit of others, or enabling one person to dispose of interest
which is vested in another.
See also Authority; Beneficial power; Capacity; Concurrent power; Control: Delegation of powers; Donee
of power; Enumerated powers; Executive powers; Governmental powers: Judicial power Legislative
power; Police power; Right."
The Oxford English Dictionary
Aid. 1. Help, assistance, support, succour, relief.
2. English Law. Help or assistance in defending an action, legally claimed by the. defendant from some one
who has a joint-interest in the defence. To pray in aid: to claim such assistance. Aid-prayer, the appeal
therefor.
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The above-quoted definitions indicate that the word "act" inter alia means exercise of power or effect of
which power exerted is cause, a performance etc. The word "aid" inter alia, connotes help, assistance,
strengthening, cooperation, supplementing the efforts of others. Whereas the word "civil" has its origin
from Latin word "civilis" which denotes pertaining or appropriate to a member of a civitas or free political
community. It may further be observed that the word "power" inter alia means the right, ability, authority or
faculty of doing something. The meaning of the above words particularly of "aid" does not advance the
case of the Federation. On the contrary, it indicates that it does not admit replacement or substitution.
20. It may again be, pointed out that by virtue of clause (1) of Article 245 of the Constitution quoted
hereinabove in para. l1, the Armed Forces are mandated, subject to law, to act in aid of civil power when
called upon to do so by the Federal Government. The constructions placed on the above important
expressions, namely, 'subject to law' and 'act in aid of civil power' have been very ably interpreted by the
learned Judges of the Full Benches of the Sindh and Lahore High Courts in the case of Niaz Ahmed Khan
(supra) and Darvesh. M. Arbey (supra), respectively, some of the relevant portions of which have been
quoted and analysed hereinabove. Keeping in view the definitions of the above words given in the above
Dictionaries, the ratio of the above two judgments and the language of Article 245 of the Constitution, I am
of the view that the expression that "subject to law" used in clause (1) of above Article 245 connotes the
law which may be in existence at the time of invoking of Article 245 or which may be enacted in terms of
the Constitution after the pressing into service the above Article. The existing law on the subject is, inter
alia, sections 128, 129, 130, 131 and 131-A of the Criminal Procedure Code which are on the statute book
for quite some time to which reference has been made by Muhammad Munir, the then Hon'ble Chief
Justice of the Lahore High Court in the case of Muhammad Umar Khan v. The Crown PLD 1953 Lahore
528 discussed hereinbelow. It may also be stated that sections 4 and 5 of the Anti-Terrorism Act, 1997, also
fall under the category of law, which has been enacted after the framing of the present Constitution. Section
4 empowers the Federal Government to call Armed Forces in aid of civil power whereas section 5
authorises the use of Armed Forces and Civil Armed Forces to prevent terrorism. Besides the laws which
are in the field, the Legislature is competent to legislate on the above subject covered by Article 245, but
the same should be within the framework of the Constitution. We are not impressed by the submission of
Dr. Basit that the above expression 'subject to law' used in above clause (1) of Article 245 referred to the
above sections of the Criminal Procedure Code and therefore, the impugned Ordinance could have been
enacted. I may observe that so long as -the Parliament acts within the parameters of the Constitution, there
is no restriction or prohibition to legislate on any subjects which fall under the Federal and Concurrent
Legislative Lists, but during the Emergency imposed under Article 232(1) of the Constitution, it can also
legislate on the Provincial subjects at any time which it may consider proper.
21. The controversy revolves around the meaning of the expression 'act in aid of civil power' employed in
the above clause (1) of Article 245 of the Constitution. It seems that the above expression presupposes that
the civil power is still there, it is neither supplanted nor effaced out. The civil power is to be preserved and
invigorated through the employment of the Armed Forces. The Armed Forces can be called in aid under the
above clause by the Federal', Government inter alia to perform police functions for limited purpose of
suppressing riots or preventing threatened disorder or for the purpose of maintaining law and order and
security or to assist/help in natural calamities alongwith the civil authorities. But the Armed Forces cannot
abrogate, abridge or displace civil power of which Judiciary is an important and integral part. In other
words, the Armed Forces cannot displace the Civil/Criminal Courts while acting in aid of civil power. They
can certainly arrest those who threaten or disturb peace and tranquillity. They may also assist in
investigation of a case and the prosecution of the same but the case is to be tried by a Court established in
terms of the judgment of this Court in the case of Mehram Ali (supra)' The employment of the expression
"subject to law" clearly demonstrates that the Armed Forces will have to act within the parameters of the
Constitution and the law obtaining. The scope of the above power which is exercisable by the Armed
Forces in aid of the civil power can only be enlarged by amending Article 245 of the Constitution. In this
behalf Mr. Aitzaz Ahsan has invited our attention to the case of A.K. Goplan v. State of Madras AIR (37)
1950 SC 27 in which the Indian Supreme Court took the view that the Courts are not at liberty to declare an
Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution and the
Courts cannot declare limitation under the notion of having discovered something in the spirit of the
Constitution which is not even mentioned in the instrument. But the above view was later on deviated by
the majority in the case of Sint. Indra Nehru Gandhi v. Shri Raj Narain AIR y1975 SC 2299, wherein it was
held that clause (4) of Article 329-A introduced by the Constitution 39th Amendment Act of 1975 was
liable to be struck down on the ground that it violated the principle of free and fair election which was the
essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution.
The above amendment purported to abolish the forum in an election dispute without providing for another
forum for going into the dispute relating to the validity of the election of Smt. Indra Nehru Gandhi. The
same view was reiterated in. the case of Smt Maneka Gandhi v. Union o1 .India and another AIR 1978 SC
597. It will suffice to observe that though in Pakistan the doctrine of the basic structure of the Constitution
has not yet been adopted to strike down a Constitutional amendment, hit in the case of Mohtarma Benazir
Bhutto v. President of Pakistan PLD 1998 SC 388 reference to the basic features of our Constitution has
been made. The above question is not involved in the present case and, therefore, the above question needs
not to be examined.
22. Reverting to the scope of functions and duties of the Armed Forces under above Article 245(1), it may
be observed that even an Act of Parliament will not enable the Armed Forces to perform the judicial
functions unless it is founded on the power conferred by a Constitutional provision. It may be pointed out
that during the Martial-Law days of General Zia-ul-Haq, by the Constitution (Second Amendment) Order,
1979 (President's Order 21 of 1979) (Gazetted on 18-10-1979) a new Article 212-A was added after Article
212 in Part VII of the Constitution whereunder it was provided that "Notwithstanding anything
hereinbefore contained, the Chief Martial Law Administrator may, by a Martial Law Order provide for the
establishment of one or more Military Courts or Tribunals for the trial of offences punishable under the
Martial Law Regulations or Martial Law Orders or any other law, including a special law, for the time
being in force specified in the said Martial Law Order and for the transfer of cases to such Courts or
Tribunals". Somewhat similar provision was added in the Constitution for a period of three years, namely,
Article 212-B by the Constitution (Twelfth Amendment) Act, 1991 (XIV of 1991) with effect from 27-7-
1991, which provided the establishment of Special Courts to ensure speedy trial of cases of persons accused
of such heinous offences specified by law as are referred to them by the Federal Government, or an
authority or person authorised by it.
I may point out that Article 190 of the Constitution has also employed the expression "shall act in aid of the
Supreme Court" by providing that all Executive and Judicial Authorities throughout Pakistan shall act in
aid of the Supreme Court. Can the Executive Authority when called in aid by the Supreme Court under the
above Article substitute or displace it. The object of the above Article 190 seems to be to assist or to help
the Supreme Court in getting its directions, orders and judgments implemented and executed.
It may again be pointed out that the Indian Supreme Court in the case of Naga People's Movement of
Human Rights v. Union of India AIR 1998 Supreme Court 431 (supra) while construing the Armed Forces
(Special Powers? Act, 1958, Assam Disturbed Areas Act, 1955. Act 7 of 1972 and Act 69 of 1986, held
that the power to make a law providing for deployment of the Armed Forces of the Union in aid of the civil
power in the State does not comprehend the power to enact a law which would enable the Armed Forces of
the Union to supplant or act as a substitute for the civil power in the State. But it is not necessary that the
Armed Forces during deployment have to be with the civil authorities of the State concerned or that the
State concerned will have the exclusive power to determine the purpose, the time period and the areas
within which the Armed Forces should be requested to act in aid of civil power. It has further been held that
though under the relevant provisions of the aforesaid Acts the Armed Forces inter alia can arrest and take
into custody any offender to exercise of power conferred by clause (c) of section 4 of the Central Act,
however, they are obliged to make over the arrested person to the officer-incharge of the nearest police
station with the least possible delay together with the report of the circumstances occasioning the arrest, but
the other functions have to be attended to by the State criminal justice machinery namely, the Police, the
Magistrate, the prosecuting agency, the Courts, the Jails etc.
23. Mr. Ch. Muhammad Farooq, learned Attorney-General has urged that the case of the Full Bench of the
High Court of Sindh, namely, Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Karachi 604
(supra) and the Full Court Judgment of the Lahore High Court in the case of Darvesh M. Arbey, Advocate
v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lahore 206 (supra) are
distinguishable, inasmuch as in the above cases the political patty in power attempted to thwart the
agitation and civil commotion which had ignited on account of large scale riggings in the general election
of 7th March, 1977. According to him, the ratio decidendi of the above cases are to be viewed in the
context of the above background. Whereas in the present case, according to him admittedly the invocation
of Article 245 of the Constitution by the Federal Government is bona fide in order to meet extraordinary
law and order situation in the form of terrorism of highest order prevalent in Karachi for more than a
decade.
On the other hand, Dr. A. Basit, Advocate Supreme Court who is representing M.Q.M. in the aforesaid
Constitution Petition No.42 of 1998, has submitted that factually the Government's above action was not
bona fide for the reason that Muslim League (Nawaz Group) was not in a position to continue to hold on
the power in the Province of Sindh if M.Q.M. was to withdraw which intention was expressed. We had not
allowed Dr. A. Basit to go into the factual aspect in detail as we were of the view that the validity of the
impugned Ordinance is to be decided on the touchstone of the Constitutional provisions and not on the
basis of bona fides or mala fides. It may be observed that a law if validly enacted cannot be struck down on
the ground of mala fides, There cannot be two opinions that the representative Government in Sindh had
failed to eradicate terrorism from the Province of Sindh particularly from Karachi. In my opinion in the
case of Syed Jalal Mehmood Shah, ! had held that invocation of Article 245 of the Constitution by the
Federal Government was warranted by the situation which was obtaining in Sindh. The relevant portion
reads as follows:-
" 14. That it may be observed that under paragraph (c) of clause (2) of Article 232 of the Constitution the
Federal Government can assume to itself or direct the Governor of a Province to assume on behalf of
Federal Government all or any of the functions of the Government of the Province, and all or any of the
powers vested in or exercisable by, anybody or authority in the Province other than the Provincial
Assembly. Indeed this power, like any other power vested in a State functionary, is to be exercised in good
faith. It is a matter of common knowledge, of which this Court can take judicial notice that the Provincial
Government of Sindh had failed to restore law and order in the Province during its tenure of nearly two
years, particularly in Karachi where hundreds of people became victim of terrorism and lost their lives. The
acts of terrorism had been going on for quite some period in Sindh particularly in Karachi. Inter alia the
previous Federal Government was dismissed under repealed Article 58(2)(b) of the Constitution by the then
President on the ground that it had resorted to extra-judicial killing in Sindh, which ground was upheld by a
Bench of this Court headed by the then Hon'ble Chief Justice Mr. Justice Sajjad Ali Shah. (The case of-
Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 3881. Thus, prima
facie the Federal Government's above action under paragraph (c) of clause (2) of Article 232 of the
Constitution was warranted by the situation obtaining."
24. The figures of the crimes mentioned in the Government of Pakistan, Interior Ministry's report contained
in paper book marked II (at pages 1 to 8) filed by the learned Attorney-General also support the above
conclusion. It would be advantageous to reproduce the figures of the commission of offences before and
after Governor's taking over executive power under. Article 232(2)(c) of the Constitution.
"POSITION BEFORE GOVERNOR'S RULE
The killings in Karachi due to terrorism and violence increased quiet alarmingly since the formation of
Coalition Government on 21-2-1997. The details are as under:
YEAR KILLED
1996 166 (Av:14/m)
1997 396 (Av:33/m)
1998 (Jan-Oct) 640 (Av:64/m)"
"BOMB BLASTS
There were 65 bomb blasts during last twenty months of Coalition Government killing 59 people and 251
injured."
"GENERAL CRIME
Likewise situation in the interior of Sindh deteriorated to a large extent as reflected below:
YEAR DACOITIES ROBBERIES .
1996(full year) 551 1886

1997 474 1807
1998 454 1833
(31st Oct) (Av: 45/m) (Av:183/m)"
"KIDNAPPING FOR RANSOM/ABDUCTION
YEAR KIDNAPPING PERSONS
FOR RANSOM KIDNAPPED/

(Cases) ABDUCTED
1996 87 911
1997 84 869
1998(31st Oct) 80(Av:8/m) 735(Av:74/m)
'VEHICLE THEFT/SNATCHING
The vehicle theft/snatching broke all records of last five years According to data compiled by C.P.L.C., the
details are as under:
YEAR VEHICLES STOLEN/SNATCHED
1996 3714 (Av:309)/m)
1997 5730(Av:478/m)
1998 (Jan-Oct) 6026 (Av:602/m)
Maximum vehicles stolen/snatched were in October, 1998 which was 742
Similar trend was witnessed in Motorcycle theft:
YEAR MOTORCYCLE THEFTS
1996 4418 (Av: 368/m)
1997 7241 (Av: 603/m)
1998 (Jan-Oct) 6792 (Av: 679/m)"
The above' acts of terrorism also involved killings of inter alia 25 high profile personalities, besides the
killing of a number of personnel of law enforcement agencies.
There were also calls of strike resulting in the loss of business for 22 days and damage to life and property
as under:
Persons killed 20
Persons injured 71
Vehicles burnt 155
Shops burnt 20
Stalls burnt 6
Bank burnt 1
As compared to the above figures, the following are the figures of the killings and other crimes after the
taking over of the executive power by the Governor as reflected in the above report:
"POSITION AFTER GOVERNOR'S RULE
After the imposition of Governor's Rule, killing due to violence has declined an average of 64 persons per
month during the first 10 months to 12 during the last two months:
November, 1998 8
December, 1998 16
January, 1999 (23rd) 7
The break-up of 31 men killed during November and December, 1998 is as follows:
Army 3
Police 2
Others 26
Out of these, 12 were killed in Liaquatabad area, 2 in Gulbahar, 1 in New Karachi, 3 in Sharifabad, 1 in
Buffer Zone (19 in District Karachi Central) 1 in Baldia, 1 in Mangopir, 1 in Mominabad, 1 in Orangi (4 in
Karachi West), 3 in Jamshed Quarters, 1 in New Town, 1 in Korangi, 1 in Shahrai Faisal (6 in District
Karachi East) and 1 in Mehmoodabad, 1 in Preedy (2 in District Karachi South).
Likewise, there has been decrease in other crimes also as reflected below:
Dacoity was reduced from an average of 45 per month during the first ten months to 43 during last two
months of 1998 and only 20 in January, 1999 as on 15-1-1999.
Robbery declined from an average of 183 per month during the first ten months to 148 during last two
months of 1998 and 58 in January, 1999 as on 16-1-1999.
Kidnapping/abduction was reduced from an average of 74 per month during the first ten months to 59
during last two months of 1998 and 25 in January, 1999 as on 15-1-1999.
The car snatching and .theft has declined from an average of 602 per month to 393 per month and
Motorcycle Snatching and Theft decreased from 679 per month to 404 per month during the first 10 months
and last two months of 1998 respectively:
VEHICLE THEFT
VEHICLE NOVEMBER DECEMBER JANUARY

Cars 415 371 189
age Recovery 52 % 56 % 42%
Motorcycles 387 421 203
age Recovery 34 % 35 % 32 % "
25. It may be stated that it seems to be correct that after the taking over of the executive power by the
Governor in Sindh, commission of the crimes has been reduced including the acts of terrorism. This is also
visible if one is to visit Karachi and see the situation obtaining now and talk to the common people, of
which this Court can take judicial notice. According to the learned Attorney-General's submission, the
establishment of the Military Courts in Karachi and other parts of Sindh also contributed in bringing the
normalcy in Sindh. In this behalf, it may be stated that the law and order situation started improving
immediately on the taking over of the executive power by the Governor on 30-10-1998. Whereas the
impugned Ordinance was promulgated on 20-11=1998. According to Mr. M. Akram Sheikh, learned
counsel, the above improvement in. the law and order situation was because of sharpening up of the
administrative response. There are more people to catch and lesser people to influence or interfere with the
process of apprehending and prosecuting accused persons and not on account of establishment of the
Military Courts. Be that as it may, even if we were to accept the above contention of the learned Attorney:
General, the question which needs consideration is that if the establishment of the Military Courts is not
warranted by the Constitution, simpliciter the fact that their establishment had contributed to some extent in
controlling the law and order situation or the factum of delay in disposal of the criminal cases by the Courts
existing under the general laws or under the special laws, as was urged by the learned Advocate-General
Sindh, would justify this Court to uphold their validity. In my humble view, if the establishment of the
Military Courts under the impugned Ordinance is violative of the Constitution, we cannot sustain the same
on, the above grounds or on the ground of expediency. Acceptance of the Doctrine of Necessity by this
Court inter alia in the case of The State v. Dosso and another (PLD 1958 SC (Pak.) 533), turned out to be
detrimental to the evolution and establishment of a democratic system in this Country. It may be observed
that some critics feel that the same had encouraged and caused the imposition of the Martial Law in this
country more than once, which adversely affected the attainment of maturity by the Pakistani nation 'in the
democratic norms. As a fall out, our country had been experiencing instability in the polity. The Doctrine
of Necessity cannot be invoked if its effect s is to violate any provision of the Constitution, particularly
keeping in view Article 6 thereof which provides that "Any person who abrogates or attempts or conspires
to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or
by other unconstitutional means shall be guilty of high treason".
It may be pointed out that the concept of imposition of Martial Law in Pakistan in connection with the
maintenance or restoration of order in any area was visualized till the framing of the present Constitution of
1973, as highlighted in the above two judgments of the Full Benches of Sindh and Lahore High Courts.
26. It may be observed that the present Constitution of the Islamic Republic of Pakistan, 1973, does riot
admit the imposition of Martial Law in any form. This is indicated from the language employed in Article
237 of the Constitution which. empowers the Parliament to make any law indemnifying any person in the
service of the Federal .Government or a Provincial Government, or any maintenance or restoration of order
in any area in Pakistan. But it does not cover indemnification, for acts done during the period of Martial
Law. In contrast to the above provision of the present Constitution, our three late Constitutions of 1956,
1962 and Interim Constitution of 1972, provided for enacting of law for indemnifying any person in the
service of the Federal Government or a Provincial Government or any other person, in respect of any act
done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law
was in force. The relevant Articles of the late Constitutions, above Article 237 of our present Constitution
and Article 34 of the Indian Constitution read, as follows:
"Article 196 (1956 Constitution): Parliament to make laws of indemnity etc.--Nothing in the Constitution
shall prevent Parliament from making any law indemnifying any person in the service of the Federal or a
Provincial Government, or any other person, in respect of any act done in connection with the maintenance
or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence
passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area.
Article 233-A (1962 Constitution): Laws relating to indemnity.-Nothing in this Constitution shall prevent
the Central Legislature from making any law indemnifying any person in the service of the Central or a
Article 278 (Interim Constitution): Laws relating to indemnity.-Nothing in this Constitution shall prevent
the Federal Legislature from making any law indemnifying any person in the service of the Federal or a
CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973
237. Mailis-e-Shoora (Parliament) may make laws of indemnity, etc.-

Nothing in the Constitution shall prevent Majlis-e-Shoora (Parliament from making any law indemnifying
any person in the service of the Federal Government or a Provincial Government, or any other person; in
respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan.
I may also refer to Article 34 of the Constitution of India which corresponds to above Articles of the late
Constitutions, which reads as under:
“34,,. Restriction on rights conferred by this Part while martial law is in force to any area.--
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any
person in the service of the Union or of a State or any other person in respect of any act done by him in
connection with the maintenance or restoration of order in any area within the territory of India where
martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other
act done under martial law in such area."
27. If we were to examine the above-quoted Articles of three late Constitutions in juxtaposition with Article
237 of the present Constitution, it clearly brings out the fact that the imposition of Martial Law in
connection with the maintenance or restoration of order in any area in Pakistan has been done away with in
the present Constitution. However, Article 34 off' the Indian Constitution is :.. line with the above three
Articles of the three late Constitutions.
It may be highlighted that under Bengal Regulation No. 10 of 1804, the Governor General was empowered
to impose Martial Law and to suspend ordinary criminal Courts from functioning in times of war or upon
rebellion against the authority of the Government and to authorise trial by the Courts Martial of persons
taken in arms in open hostility in the act of opposing by force of arms the authority of the Government or in
the actual commission of any overt act of rebellion. Such Courts were competent to inflict death penalty
and to order forfeiture of the property of the persons who were convicted by Courts Martial (for detailed
discussion reference may be made to the case of Muhammad Umar Khan v. The Crown (PLD 1953 Lahore
528 at p. 547).
At this juncture it may be pointed out that there is marked distinction between imposition of Martial Law
which envisages the taking over of the affected area by the Military Authorities completely and invocation
of Article T 245 of the Constitution where the Armed Forces are called, subject to law, to act in aid of civil
power. In this regard, reference may be made to the case of Muhammad Umar Khan v The Crown (PLD
1953 Lahore 528) (supra) which has been referred to by M/s. M. Akram Sheikh and Aitzaz Ahsan as well
as by the learned Attorney-General, in which a learned Full Bench of the Lahore High Court comprising
Muhammad Munir, CJ, S.A. Rahman and M.R. Kayani, JJ. (as their Lordships then were) had dealt with
the scope and character of Martial Law- of the above type. Muhammad Munir, CJ spoke on behalf of the
Court. The background of the above case was that near the end of February 1952, serious disturbances
involving loss of life and property broke out in Lahore. Initially they took the form of processions, shouting
of slogans and carrying ignominious effigies of some of the highest Government dignitaries. The same
developed in the form of riotous mobs and began indulging in attacks, loot, arson and murder. The civil
authorities attempted to suppress the disorder. but the tumult grew in strength and volume and assumed the
form of an open revolt. The civil authorities were unable to cope with the situation. Thereupon, with the
consent of the Central Government Martial Law was proclaimed in the area of the Corporation of the City
of Lahore from 1-30 p.m. on 6-3-1953. Major-General Muhammad Azam Khan, Officer Commanding the
Tenth Division, stationed at the Lahore Cantonment, constituted himself Martial Law Administrator for the
area and took complete control of the situation. He issued a series of Martial Law Regulations and Orders
and set up several Special Court manned by military personnel for the trial and punishment of persons
contravening such Regulations and Orders.
On the allegation that Maulana Abdus Sattar Khan Niazi abetted the murder of Firdous Ali Shah, a Deputy
Superintendent of Police, and on account of speeches delivered during the disturbances violating section
124-A of the P.P.C., he was tried by one of the Special Military Courts and on 7-5-1953, was sentenced to
death on the charge under section 124-A read with Martial Law Regulation No. 8. The charge of murder
was held not to have been proved. His sentence was commuted into life imprisonment by the Martial Law
Administrator.
It may be stated that on 9-5-1953 the Governor General, acting under section 42 of the Constitution Act,
had promulgated an Ordinance (No. 11 of 1953) indemnifying servants of the Crown and other persons in
respect of acts done by them in good faith under Martial Law and validating sentences passed by Special
Military courts. One Muhammad Umar Khan filed an application for the relief in the nature of habeas
corpus under section 491 of the Code of Criminal Procedure, on the basis of averment that Maulana Abdus
Sattar Khan Niazi, then a Member of the Punjab Legislative Assembly, was being illegally detained in
prison in Lahore. He prayed for the relief that Maulana be set at liberty. Section 7 of the above
Indemnifying Ordinance which validated the sentences etc. was also assailed. The above application was
heard by above Bench. In the discourse of the judgment Muhammad Munir, CJ pointed out that in
Constitutional jurisprudence the term "Martial Law" is used at least in four different senses, namely:
(i) It is used with reference to the law relating to discipline in the Armed Forces of the State which is
administered by Tribunals, called Courts Martial. These Courts are constituted for the purpose of regulating
the Government of the Military and their jurisdiction in no circumstances extends to the civilians.
(ii) In . the second sense the word "martial law" means "military Government in occupied territory"
and is used to describe the powers of a Military Commander in times of war in enemy territory.
Muhammad Munir, CJ, in respect of the above category of Martial Law has referred to Duke of
Willington's remark in a debate in the House o`.' Lords, namely, "Martial Law is neither more nor less than
the will of the General who commands the army. In fact Martial Law means no law at all."
(.iii) In the third sense in which it is a part of English Constitutional Law, Martial Law means the rights
and obligations of the Military under the common and statue law of the country to repel force by force
while assisting the civil authorities to suppress riots, insurrections or other disorders in the land. Dicey
described the above type of Martial Law as "the power of the Government or of loyal citizens to maintain
public order, at whatever cost of blood or property may be necessary, Martial Law is assuredly part of the
law of England."
Muhammad Munir, C.J., as regards the above third type of Martial Law, made the following weighty
observation:
' In our country, rights and duties of citizens and servants of the Crown, including the military, can only be
gathered from the scattered provisions of the Pakistan Penal Code, the Criminal Procedure Code and the
Police Act. Every person, whether a Crown servant or not, is justified under the law of this country to assist
others, including Government servants, in the protection of person. and property. This right of a person to
protect the person and property of others from harm is recognized by those sections of the Penal Code
which deal with the right of private defence. In times of disorder a Magistrate can under section 129 of the
Code of Criminal Procedure call in the Military to suppress a riot and under section 130 of the same Code,
in the absence of a Magistrate, a commissioned Military Officer may disperse an unlawful assembly by
force and nothing done in good faith by such officer is an offence. Section 128 of that Code imposes on
every person an obligation to assist the Magistrate when so required, in the dispersal of an unlawful
assembly and an omission to assist in these circumstances is made punishable by section 187 of the
Pakistan Penal Code. Under section 17 of the Police Act, in times of disturbance a police officer not below
the rank ,of an Inspector can apply to the nearest Magistrate to appoint as special police officers as many
residents of the locality as such police officer requires. In times of crisis the Governor-General can by a
proclamation under section 102 of the Constitution Act, declare a state of emergency giving to the
executive wide rule-making powers and greater freedom of action to preserve peace and order.
On comparing the provisions of our own law with those of English Law it will be apparent that the rights
and duties of citizens, including servants of the Crown and the Military, are substantially identical under
both systems. It is, however, a misuse of the term to describe these rights and duties as martial law, they are
no more than a part of the civil law of the land.'
(iv) The common law doctrine of right to use force against force can be extended to justify the use of
necessary force where riots had assumed the form of armed insurrection or open rebellion amounting to
war. On such occasions the Civil Courts may still function, though there may occur conflict between the
Civil Court and a Military Court. In this regard, in the above report reference has been made to the
judgment of Lord Chief Justice Kilwarden in the case of Wolfe Tone (27 How. St. Trials, 613) who was
convicted and sentenced to death on the charge of high treason by the Court Martial, but upon habeas
corpus petition the. Lord Chief Justice issued writ for his production which was resisted by the Military
Authorities. However, the above confrontation came to an end because Wolfe Tone committed suicide in
the jail.
Setting up of Courts during Martial Law was dilated upon in the above report as follows:
"If Martial Law is not law, it is obvious that when the Military step in and take charge of the civil
administration in the disturbed area setting
up their own Courts, any action taken by them unless justified by civil law would be entirely illegal,
making them liable to be sued or prosecuted for all encroachments on rights of person and property
unless, by subsequent legislation, their acts are condoned or excused by indemnity legislation. Now
because the professed justification for the Military to step in is the disturbance of public tranquillity and
the object is to restore civil authority to its normal condition, the scope of the activities of a Military
Commander extends only to taking such action as is necessary for the restoration of law and order, and all
acts that fall within the scope of that activity will certainly be validated for the Martial Law period by an
indemnity bill. A Military Commander, therefore, incurs a serious risk if beyond doing what is necessary
for the restoration of law and order he takes upon himself other functions ' which have nothing to do with
the restoration of normal conditions. "
…………………………….…………………………….…………………………….……………………
……….…………………………….…………………………….………………………
Martial Law means the suppression of ordinary law in any part of the country by Military Authority,
whose sole duty is to restore such condition of things as will enable the Civil Authority to resume charge.
In order to attain that object the Military Officer may issue such orders, and enforce them in such manner,
as may be necessary for that purpose only. His authority is, for the time being supreme, but in practice the
amount of his interference with the civil administration and the ordinary Courts is measured by military
necessity. He should not interfere beyond what is necessary for the restoration of order, and should,
whenever possible, act in consultation with the local civil authorities. Offenders should be handed over to
the ordinary Courts for trial wherever this is possible; but persons charged with offences which are not
offences against the civil law cannot be so handed over. The Military Officer has power to try an offender
and punish him under Martial Law, but he should not exercise the power except where it is necessary for
him to do so for the purpose of restoring order or where it is not possible to keep an accused person in
arrest until he can be handed over for trial by the ordinary Courts. Such occasion may arise if
communications are interrupted during a considerable period, but even then the Military Officer can
generally arrange for the attendance of a civil Magistrate to whom prisoners can be handed over for trial,
and this should be done when possible. If the Military Officer has to try an offender, though this should
only be necessary in very exceptional circumstances, the trial should follow the form of military law; and
a record must be kept of every trial so held, and of every punishment inflicted under Martial Law, any
punishment so inflicted must not be excessive; regarding this the Military Officer should observe the
instructions contained in Chapter III of this Manual."
28. It is evident from the above report that when the Martial Law of the type referred to in the report is
imposed and a Martial Law Administrator takes over a particular area with the power to legislate in the
form of Martial Law Regulations or Orders, he may set up the Martial Law Courts, but in practice the
amount of his interference 'with the civil administration and the ordinary Courts is measured by military
necessity.
The above matter was brought before the then Federal Court of Pakistan by Maulana Abdus Sattar Khan
Niazi by way of a petition for leave to appeal (PLD 1954 FC 187). The case was heard by a Bench
comprising A.S.M. Akram, M. Shahabuddin and A.R. Cornelius, JJ. Akram, J. recorded his separate
opinion, whereas Shahabuddin, J. concurred with the opinion of Cornelius, J. (as his Lordship then was).
Cornelius, J. in his opinion dilated upon the scope of aforesaid section 7 of the Martial Law (Indemnity)
Act, 1953 (XXXII of 1953) (which was passed on 3-11-1953) for validation of the acts of the Army
personnel acting in judicial capacity i.e. awarding sentences etc., and disagreed with Akram, J. as to the
import and meaning of the expression "acting in judicial capacity" in the following terms:
"In the light of these conclusions, it is not necessary to consider at length whether the words 'acting in a
judicial capacity' are merely designed to differentiate acts of the kind in question from other acts of a
purely administrative kind or whether, on the contrary the intention is not, by the employment of these
words, to confine the saving effect of the section to acts which, in their essence, satisfy the minimum
requirements of a judicial determination. I find myself, to my regret, in disagreement with my learned
brother Akram on this point. In my view the words 'acting in a judicial capacity' are not merely words of
indication, but are intended to be, and are in fact, words of limitation. So much appears to me to follow
from giving to each word in the phrase, its full and plain grammatical meaning, but I base this conclusion
also upon the consideration that when the Federal Legislature was considering the question of the extent
to which the acts performed by self-appointed authorities during the extra-Constitutional regime
represented by the Martial Law period, could be maintained in their effect, it may Well have considered
that the saving should be confined to those particular acts, purporting to be acts performed in the
administration of justice, which were in fact performed in compliance with the minimum requirements of
the dispensation of justice."
It may be pointed out that Cornelius, J. in his above opinion termed Martial Law period as self-
appointed authorities during the extra-Constitutional regime. His Lordship while commenting upon
section 7 of the Martial Law(Indemnity) Act, 1953 observed that the saving should be confined to these
particular acts, purporting to be acts performed in. compliance. with the minimum requirements of the
dispensation of justice.
Since under the present Constitution it is not permissible to impose Martial Law of the nature referred to
in the above two reports, the ratio decidendi of the same is not attracted to the present case.
29. The learned counsel for the petitioners have referred to the provisions of the Army Act to contend that
the concept of the Court provided therein cannot fit in within the framework of the Constitution. Whereas
learned Attorney-General has referred to the above provisions to urge that since the Armed Forces have
been called in aid of civil power, the promulgation of Ordinance for establishing Military Courts and the
invocation of the provisions of the Army Act relating to Military Courts are incidental and ancillary to the
invoking of the above Article 245. The learned Attorney-General also submitted that factually no
permanent Military Courts have been established by the Ordinance which can be termed as parallel
Courts to the Civil. Courts. He, therefore, further urged that neither Article 175 nor Article 203 of the
Constitution is violated.
The learned counsel for the petitioners and the learned Attorney-General have referred to the relevant
provisions of the Army Act and the Rules. While dealing with the case of Niaz Ahmed Khan (supra)
referred to hereinabove in para. 16, I have quoted clause, (d) and (dd) of subsection (1) of section 2 of the
Army Act, as amended inter alia by Pakistan Army Act (Amendment) Ordinance No. XVIII of 1977. I
have also pointed out that after the judgment of the. Lahore High Court in the case of Darwesh M. Arbey
(supra), para (iii) of clause (d) and clause (dd) of above subsection (1) of section 2 of the Army Act were
omitted. The effect of the above omission was to limit the scope of application of the Army Act to
persons not otherwise subject to the Act.
It may be observed that section 80 of the Army Act provides four kinds of Courts-Martial, namely, (i)
general courts martial which can be convened by the Chief of the Army Staff or by an officer empowered
in this behalf by warrant of the Chief of the Army Staff (section 81); (ii) district courts martial, which can
be convened by an authority having power to convene a general court martial or by an officer empowered
in this behalf by a warrant of any -such authority (section 82); (iii) field general courts martial, which can
be convened by (a) an officer empowered in this behalf by an order of the Federal Government or of the
Chief of the Army Staff, (b) on active service, an officer commanding a portion of the Pakistan Army, not
below the rank of Brigadier (section 84); (iv) summary courts martial, which can be held by the
Commanding Officer of any corps or unit or any detachment thereof (section 88).
It may further be observed that a general court martial consists of 'not less than five officers each of
whom had held a commission for not less than three whole years and of whom not less than four are of a
rank not below that of Captain (section 85), a district court martial comprises not less than three officers
each of whom had held a commission for a continuous period of not less than two years (section 86), and
whereas a field general court martial consists of not less than three officers (section 87).
The above four types of Courts envisaged under the Army Act have been empowered to award
punishments/sentences of different terms. The learned Attorney-General seems to be correct in
contending that there is no concept of having permanent Military Courts under the Army Act. It envisages
convening of four different types of Courts for particular cases. Personnel of each of the above Courts for
each case are generally different, to be, nominated by the authority competent to convene the Court
concerned. It may also be pointed out that by virtue of sub-rule (1) of Rule 51 of the Army Act Rules the
above Courts are not obliged to record reasons for their finding as they are required to record the finding
by recording "guilty" or "not Guilty" or "not guilty and honourably acquitted". According to Dr, Basit, the
above Courts are part of the legal system but they are not part of the judicial system as envisaged under
the Constitution:
M/s. M. Akram Sheikh and Aitzaz Ahsan submitted that an order of a court-martial Court is not
susceptible to judicial review as it does not record any reason therein. The above contention seems to be
correct as it lacks salient features of an order of a Civil Court covered under Articles 175 and 203 of the
Constitution.
30. Mr. Ch- Muhammad Farooq, learned Attorney-General was at pains to point out that this
Court has already held in the case of Brig (Rtd.) F.B. Ali (supra) and Mrs. Shahida Zaheer Abbasi and 4
others v. President of Pakistan and others (PLD 1996 SC 632) that trial by a Military Court under the
Army Act is not violative of the principle of fair trial nor it is discriminatory- He has also referred to the
judgment of the Federal Court in the case of Abdus Sattat Khan Niazi (supra) wherein inter Alta it was
held that the procedure adopted by the Military Courts tinder the Army Act was not violative of the
requirement of natural justice.
The learned Attorney-Genera; has particularly relied upon the observations from the judgment in the case
of Brig. (Rtd.l F.B. Ali and another v. The State (PLD 1975 SC 506). The above case has also been
referred to by the learned counsel for the petitioners. Since it has direct bearing on the controversy at
issue, I may refer the same in detail. In the above case the facts were that a constitution Petition was filed
in the Lahore High Court for assailing the jurisdiction of the Court Martial convened on 19th July. 1973
to try the petitioners in that case, inter alia, for the following charges:
" 1st Charge--PAA section 59 against all the accused.
The accused PA-24$0, Brigadier (Retd.) F.B. Ali, being a person subject to PAA under the provisions of
section 2(1)(d) of the said Act (accused No. 1), PA-3596, Col. (Retd,) Abdul Aleem Afridi, being a
person subject to PAA under the provisions of section 2(1)(d) of the said (accused No. 2) all attached to
Special Detention Camp, Attock Fort, are charged with:-
Committing a civil offence, that is to say, conspired to wage war against Pakistan, and thereby committed
an offence punishable under section 121-A of the P.P.C.
In that they together, between the period August 1972 and 30th March 1973, at Rawalpindi, Jhelum,
Lahore and elsewhere formed a plot to overthrow the Government established by law in Pakistan by
putting under arrest with the help of troops at their disposal, the President; the Governor of Punjab, the
Ministers, all the Generals assembled in a conference and other officials holding key positions in the
Administration, and thereby to assume power in the country for themselves, by means of criminal force.
2nd Charge.--PAA Section 31(d) (against Brig, (Retd.) F.B. Ali, accused No. 1 only).
Attempting to seduce any person in the Military Forces of Pakistan from his allegiance to the Government
of Pakistan.
In that he, during the period mentioned in the first charge, at various places in Pakistan, attempted to
seduce Maj. Shahid M. Ataullah and other persons in the Military Forces of Pakistan from their allegiance
to the Government, in order to enlist their support for furthering the design of the conspiracy mentioned in
the first charge.
3rd Charge.--PAA Section 31(d) (against Col. (Recd.) Abdul Aleem Afridi, accused No. 2 only).
Attempting to seduce any person in the Military Forces of Pakistan from his allegiance to the Government
of Pakistan.
In that he, during the period mentioned in the first charge, at various places in Pakistan, attempted to
seduce Lt.-Col. Naseer Ahmed, Major Sardar Ali and other persons in the Military Forces of Pakistan
from their allegiance to the Government, in order to enlist their support for furthering the design of the
conspiracy mentioned in the first charge, "
The above petition was dismissed by the High Court inter alia on, the ground that on account of
subsistence of Proclamation of Emergency, the enforcement of Fundamental Rights was suspended, in
view of the Constitution (First Amendment) Act XXXIV of 1974, amending Article 199, the High Court
jurisdiction was barred and that subsection (1) of section 59 of the Army Act was wide enough to give
jurisdiction to the Court Martial to try any person to whom the Army Act had been extended by clause (d)
of section 2 even in respect of civil offences.
Leave to appeal was granted against the above judgment for-the reason that the petitioners raised several
questions of law of general public importance involving the interpretation of the provisions of the
Constitution of 1962, the Interim Constitution and the latest Constitution of 1973 and also the
amendments introduced in the Army Act by Ordinances Nos. III and IV of 1967. This Court while
maintaining the High Court judgment, disagreed with some of the conclusions of the High Court. The
leading opinion was rendered by Hamoodur Rahman, CJ. The relevant portions thereof are referred to
hereinbelow:
As regards the scope and import of clause (d) of section 2 of the Army Act the following was concluded:
"The words of clause (d), introdpced into section 2 of the Army Act by Ordinance No. III of 1967, are
clear enough. The words 'persons not otherwise subject to this Act' clearly embrace all others who are not
subject to the said Act by reason of the provisions of clauses (a). (b), (bb) and (e). The intention of the
framers of clause (J) is clearly that even civilians or persons who have never been, in any way, connected
with the Army should be made subject to it in certain circumstance's gravely affecting the maintenance of
discipline in the army. The nexus required is that they should be persons who are accused of seducing or
attempting to seduce any person subject to the Army Act from his duty or allegiance to Government. In
this case, the appellants were so accused and, therefore, came within the ambit of clause (d). The nexus, if
any required, was provided by the accusation. No other nexus or connection was necessary."
As to the vires of the amendment in the Army Act. the following was held:
"Now it has been contended that since the offence of seducing or attempting to seduce a person subject to
the Army Act from his duty or allegiance to Government is already an offence under section 131 of the
Penal Code. triable by the ordinary Criminal Courts, this is in substance and in reality an amendment of
the Criminal Procedure Code.
This may well be incidentally the consequence of the amendment introduced, in so far as the persons
falling within the new category are concerned, but it cannot be said that this is in pith and substance the
object of the amending legislation. The Pakistan Army Act was a Central Act which could only be
amended by the Central Legislature and the Central Legislature had power to enlarge or restrict its
operation by amendment, and if it was intended to extend the operation of the Act to another specific
category of persons who are accused of certain offences in relation to defence personnel or defence
installations, how can it he said that the object of the Act was not in pith and substance to prevent the
loyalty of the defence personnel from being subverted by outside influence. The legislation, therefore, in
my opinion, came directly within item t of the Third Schedule of the 1962 Constitution. It did not amend
either section 131 or section 139 of the penal Code.
The nexus with the defence of Pakistan was not only close but also direct. It is difficult to conceive of an
object more intimately linked therewith. The prevention of the subversion of the loyalty of a member of
the Defence Services of Pakistan is as essential as the provision of arms and ammunition to the Defence
Services or their training."
As regards the discrimination, the following was concluded:
"Where, however, the law itself makes no classification but leaves the selection to an outside agency or an
administrative body without laying down any guidelines, thus enabling the body or authority to pick and
choose, a legitimate complaint may be made on the ground that the law itself permits discriminatory
application. Such was the position which came under consideration by this Court in the case of Waris
Meah v. The State (PLD 1957 SC (Pak.) 157) where this Court struck down the law on the ground that it
was violative of this particular right. On the other hand, in the case of Jibendra Kishore Achharya v.
Province of East Pakistan (PLD 1957 SC (Pak.) 9), a law which provided for payment of compensation
on a sliding scale to proprietors, which decreased in proportion to the income of the estate acquired. The
larger the income the lesser the scale of compensation. Nevertheless, this Court held the differentiation to
be based upon a valid classification.
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Applying these principles to the facts of the present case, I am inclined to agree with the learned
Attorney-General that there is a valid classification in this case. A category has been selected on a rational
basis, namely, those who seduce or attempt to seduce a member of the armed cervices from his allegiance
or his duty. There is no possibility of any one picking and choosing a particular person so accused for trial
in one manner and leaving others to be tried under the general law by reason of the amendment
introduced by clause (d) in subsection (1) o.` section 2 of the Army Act. All persons accused of an
offence of this nature, whether members of the defence services or civilians, are now triable under the
Army Act, that is to say, that all persons, similarly situated or similarly accused, will now be liable to be
tried under the Army Act in the same manner without any discrimination. This is a valid classification
which is by no means unreasonable or arbitrary having regard to the object sought to be achieved, i.e. the
prevention of subversion of the loyalty of the Armed Forces."
It was concluded that it seems quite settled that if the Court Martial has tried a particular case with
jurisdiction then the ordinary Courts of superior jurisdiction will not interfere in exercise of their power of
judicial review merely on the ground that some rule or procedure has not been followed. However, as
regards the scope of newly-added clause (3) to Article 199 by the Constitution (First Amendment) Act,
1974, somewhat contrary view than what was found favour with the High Court to the above case was
taken, which reads as follows:
"The learned Attorney-General has contended that the words 'relating to' clause (3) are words of wide
connotation and after the amendments made in 1974, they operate as a complete bar as they cover every
conceivable action taken in relation to even a person for the time being subject to the Army Act as the
appellants were. However, wide the connotation of these words may be they cannot possibly act as a bar
where the action impugned is itself without jurisdiction or coram nor, judice or has been taken mala fide
as held by this Court in State v. Zia-ur--Rahman (PLD 1973 SC 49). On the other hand if the action is
with. jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of
almost anything if it is in relation to a person who is even only for the time being subject to a law relating
to the Armed Forces. The action must, however, be one which is taken while he is so subject and not
before he becomes so subject or after he ceases to be so subject. In this view of the matter the trial of the
offence under section 121-A, P.P.C would not, in my opinion be protected being without jurisdiction."
The ratio of the above judgment seems to be. inter alia, as under
(i) That ever, a civilian who is made subject to the Army Act. can be tried by the Military Courts
under the said Act, provided that the offence of which such person is charged with has nexus with the
Armed Forces or Defence of Pakistan.
(ii) That the two accused in the above case were picked up on the basis of valid classification
founded on a rational basis namely, those who seduce or attempt to seduce a member of the Armed
Forces from his allegiance or his duty, and that there was no possibility of anyone picking and choosing a
particular person so accused for trial in one manner and leaving others to be tried under the general laws
by reason of amendment introduced by clause (d) of subsection (1) of section 2 of the Army Act; and
(iii) That the trial under the Army Act for the persons liable to be tried is not violative of any of the
principles of fair trial.
31. The learned Attorney-General has also invited our attention to the following observation of one of us,
namely, Saiduzzaman Siddiqui, J. made by him in his minority opinion in the case of Mrs. Shahida
Zaheer Abbasi (supra):
"I may add that, as observed by Halsbury on page 825, the Courts Martial are parts of the ordinary law of
the land, and must not be confused with Martial Law Courts which are brought into existence on
suspension of the ordinary law. Any criticism or misgivings attaching to the functioning of Military
Courts under Martial Law cannot be imported into a consideration of the fairness of trial held by Courts
Martial established under the relevant Acts for the Army, Navy and Air Force. These Courts Martial are
intended to regulate the discipline and conduct of the personnel of the respective Forces, and of all other
persons who may be made subject to these laws in certain circumstances. They are thus established
institutions with well-known procedures, which cannot be described as arbitrary, perverse or lacking in
fairness in any manner. "
He also referred to the following portion from the case of Maulana Abdus Sattar Khan Niazi v. Crown
(supra) from the opinion of Carnelius, J.:
"In the initial stage of his argument, Mr. Manzur Qadir urged that the requirements of natural justice had
been denied to his client in several respects, and in particular that only one day's notice of the hearing of
the case was given to him and he was required to produce his defence evidence as soon as the trial began.
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In respect of the presentation of his case in defence, the minimum requirements of justice are that an
accused person should be allowed to present his plea, as well as a reasonable opportunity to support it,
and to rebut the evidence led against him, by producing defence witnesses. The procedure actually
followed would seem to satisfy these requirements. "
It is true that, as regards trial by the Military Courts under the Army Act, the above observations have
been made, but they are to be understood in the context in which they have been made. The question at
issue before us is, as to whether by virtue of the impugned Ordinance the four types of Courts envisaged
under the Army Act referred to hereinabove can be substituted for ordinary criminal Courts created under
the Constitution for the trial of civilians for civil offences having no nexus with the Armed Forces or
defence of the country. There is no doubt that in terms of the Army Act even certain civilians can be tried
for the offences covered under the Army Act. In this regard reference my be made to the relevant portion
from the opinion of Hamoodur Rahman, C.J. in the case of Brig. (Rtd.) F.B. Ali (supra) quoted
hereinabove, wherein Hamoodur Rahman, C.J. observed that "the nexus with the defence of Pakistan was
not only close but also direct. It is difficult to conceive of an object more intimately linked therewith. The
prevention of the subversion of the loyalty of a member of the Defence Services of Pakistan is as essential
as the provision of arms and ammunition to the Defence Services or their training". In the instant case the
offences specified in section 6 of the Schedule to the Ordinance have no nexus with the defence services
of Pakistan. The judgment in the case of Brig (Rtd.) F.B. Ali (supra) does not advance the case of the
respondent, on the contrary it clearly lays down that the Army Act can be made applicable to a person
who is not otherwise subject to the Army Act if the offence committed by him has nexus with the defence
services of Pakistan.
32. The learned counsel for the petitioners have heavily relied upon the following portions from the
judgment in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah
Memon and 16 others (PLD 1993 SC 341 at p. 369):
"The Constitution provides for separation of Judiciary from the Executive. It aims at an independent
Judiciary which is an important organ of the State within the Constitutional sphere. The Constitution
provides for progressive separation of the Judiciary and had fixed a time limit for such separation. It
expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or
not, judiciary stands separated and does not and should not seek aid of executive authorities for its
separation. Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is
independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for
blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of
offence in the hands of the Executive Officers. This is merely a semblance of establishing Courts which
are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run
by executive authorities without being under the control and supervision of the judiciary can hardly meet
the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II
of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the
hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry: Such a
procedure can hardly be conducive to the administration of justice and development of the area nor will it
achieve the desired result of bringing law and order, peace and tranquillity or economic prosperity and
well-being. The Constitution envisages independent Judiciary separate from the Executive. Thus any
Tribunal created under the control and superintendence of the executive for adjudication of civil or
criminal cases will be in complete conflict with Articles 175, 9 and 25.
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The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be
equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and
prone to financial dependence and harassment at the hands of the executive. In practice and effect the
separation of judiciary is the main problem of the lower judiciary which under several enactments and
rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that
the judiciary including lower judiciary shall be separated from the executive and 'High Court shall
supervise and control all Courts subordinate to it'. Such control and supervision can be achieved only
when the judiciary is administratively and financially separate from the executive. The next step should
be taken to devise proper scheme and frame rules dealing with financial problems within the framework
of the Constitution. So long financial independence is not achieved, it will be difficult to improve the
working conditions, accommodation, building and expansion to meet the growing needs of the people.
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Magistrates separately were not included in the above Notification nor they have been enforced till today.
It will rot be out of context to mention that in 1952 Justice (Retd.) Din Muhammad, who was the then
Governor of Sindh converted all- posts of City Magistrates, Additional City Magistrates and Resident
Magistrates in Sindh into posts of Civil Judges and 1st Class Magistrates and brought the incumbents in
the cadre of Civil Judges and placed them under direct control of the District Judge and of the High Court.
In other words in the interior of Sindh Civil Judges exercise the power of 1st Class Magistrates but
unfortunately there are still Magistrates in the interior of Sindh exercising executive and judicial powers
jointly'. The structure and its implementation and proper functioning is available and should not pose any
problem to other Provinces. If in Sindh the Ordinance could be implemented within two days of the
promulgation of the Ordinance Xll of 1972, why it has not seen the light of the day in other Provinces for
the last more than twenty years. The mandate and command of Article 175 must be obeyed and
implemented; any laxity in this regard will amount to violation of Constitutional provisions and perhaps
the judicial orders passed by the functionaries under the control and superintendence of the executive may
be challenged, which will create embarrassing situation for the Government and the administration of
justice shall be seriously jeopardised. In view of the fact that more than reasonable time has passed
without any action being taken by the appellant to comply with Article 175, the request of the learned
Advocate-General to grant sufficient time for introducing reforms cannot be acceded to. "
In the above judgment, this Court upheld the judgment of the High Court of Balochistan, whereby
Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968), which provided a parallel
judicial system manned by the personnel belonging to the Executive, was held ultra vires of the
Constitution. The above judgment clearly lays down that any other forum or procedure for the trial of
criminal offences committed by civilians which does not fit in within the scheme of the Constitution i.e.
the separation from the executive and independence of the judiciary cannot be sustained in the present
scheme of the Constitution. Reference was also made by them to the judgment of this Court in the case of
Al-Jehad Trust (PLD 1996 SC 324), wherein inter alia it was emphasised that separation and
independence of judiciary are the hallmark of our present Constitution and, therefore, the appointments in
the. Superior judiciary and other actions relating to the working of the same are to conform with the basic
mandate of the Constitution. The above aspects have been dilated upon in detail in a recent judgment of
this Court in the case of Mehram Ali (supra) the relevant portion of which has been quoted hereinabove in
para. 14.
33. The learned counsel for the petitioners have vehemently contended that since the Armed Forces by
virtue of clause (1) of Article 243 of the Constitution are under the control and command of the Federal
Government and as under the Army Act the power to dismiss, remove and reduce in rank vests in the
Executive, the personnel of the Armed Forces, who are to man the above four types of Courts are under
the direct administrative control of the Executive and that the above Courts and personnel do not qualify
for holding a judicial office in terms of the law enunciated by this Court in the case of Mehram Ali
(supra). They have invited our attention to Chapters III and IV of the Army Act. The former deals with
the termination of service and the latter provides for summary reduction and punishment otherwise than
by sentence of Court Martial. They have particularly invited our attention to section 16 contained in
Chapter III of the Army .Act, which provides that the Federal Government may dismiss or remove from
service any person subject to this Act. There is no doubt that the cumulative effect of the above
Constitutional provision, namely, Article 243 and of the Constitution is that the personnel of Armed
Forces are under the final administrative control of the Federal Government.
It may further be observed that section 3 of the impugned Ordinance provides that as directed by the
Federal Government, the Chiefs of the Staff of the Armed Forces or an officer not below the rank-of
Brigadier or equivalent rank in Pakistan Navy, or Pakistan Air Force authorised by the concerned Chief of
the Armed Forces in this behalf, may convene as many Courts as may be necessary to try offences triable
under the Ordinance including the convening of Courts of appeals to heal- peals arising out of the
decisions made and sentences passed by the Courts so convened. The above provision also indicates that
the Federal Government has full control as to the convening of the Courts under the Army Act for the trial
of the offences under the impugned Ordinance, though the personnel to man such Courts are to be
nominated by the Army Authorities. The impugned Ordinance does not envisage the establishment of
permanent Military Courts but it provides for the trial of civilians for the offences mentioned in the
Ordinance by any of the four types of Courts mentioned in section 80 of the Army Act to be convened for
each case comprising different Army personnel. In pith and substance the above types of Courts cannot be
equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case
of Mehram Ali v. Federation of Pakistan (supra). It may be pointed out that, this Court in the cases of
Government of Balochistan v. Azizullah Memon (supra), AI-Jehad Trust (supra) and Mehram Ali (supra)
has held that the right to .have access to justice through independent Courts is a Fundamental Right and,
therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed
Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law
enunciated particularly in Mehram Ali's case (supra) will be violative of Articles, 9, 25, 175 and 203 of
the Constitution.
34. Mr. M. Akram Sheikh, learned counsel for the petitioner in Constitution Petition No. 37/98, has
referred to the following cases of United States Supreme Court to emphasise that in a democratic set up
Military Courts' cannot try a civilian for a civil offence which is triable by an ordinary criminal Court.
M/s. Aitzaz Ahsan and Dr. A. Basit, learned counsel have also placed reliance on these judgments.
(i) O'Callahan v. Parker (89 S.Ct. 1683, 395 U.S. 258)
In which the facts were that habeas corpus proceedings were brought b, a prisoner who had been
convicted in court-martial. The United States District Court for the Middle District of Pennsylvania
denied relief and prisoner appealed The US Court of Appeals. Third Circuit affirmed and certiorari was
granted. The Supreme Court, Mr. Justice Douglas (who spoke on behalf of the Court), held that crimes of
the petitioner, a soldier, who while on evening pass entered residential part of Honolulu Hotel, where he
allegedly broke into room of young girl and assaulted and attempted to rape her, were not service
connected and the soldier could not properly be tried, therefor by court-martial; but was entitled to trial by
civilian Courts. Whereas the three learned Judges dissented from the above view. It will be advantageous
to reproduce the following observation from Mr. Justice Douglas's opinion:
"We find nothing in the history or Constitutional treatment of Military Tribunals which entitles them to
rank alongwith Article III Courts as adjudicators of the guilt or innocence of people charged with offences
for which they can be deprived of their life, liberty or property Unlike Courts, it is the primary business of
armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to
maintain discipline is merely incidental to an army's primary fighting function. To the extent that those
responsible for performance of this primary function are diverted from it by the necessity of trying cases,
the basic fighting purpose of armies is not served. And conceding to military personnel that high degree
of honesty and sense of justice which nearly all of them undoubtedly have it, still remains true that
Military Tribunals have not been and probably never can be constituted in such way that they can have
the same kind of [395 U.S. 263] qualifications that the Constitution has deemed essential to fair trials of
civilians in Federal Courts. For instance, the Constitution does not provide life tenure for those
performing judicial functions in military trials They are appointed by Military Commanders and may be
removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have
been made toward making courts-martial less subject to the will of the executive department which
appoints, supervises and ultimately controls them. But from the very nature of things, Courts have more
independence in passing on the life and liberty of people than do military Tribunals."
(ii) Reid v. Covert (77 S Ct. 1222. 354 U.S. 1)
In the above case habeas corpus proceedings involving question of court-martial jurisdiction over civilian
dependents of armed services personnel to prosecute them for alleged murder of members of the armed
services were initiated. In one case, the United States District Court for the District of Columbia issued
the writ, and the Government appealed directly to the Supreme Court which reversed through the
judgment reported in 351 U.S. 487. In the other case, the United States District Court for the Southern
District of West Virginia discharged the writ and while appeal was pending to the US Court of Appeals
for the Fourth Circuit, certiorari was granted. The Supreme Court in the judgment reported in 351 U.S.
470, affirmed. On rehearing of both the cases, the Supreme Court held that the provisions of the Uniform
Code of Military Justice extending court-martial jurisdiction to persons accompanying the Armed Forces
outside the continental limits of the United States could not be Constitutionally applied to trial of civilian
dependents of members of the Armed Forces overseas, in time of peace, for capital offences. The
judgment directing grant of writ for release of one prisoner from custody was affirmed, and the ,judgment
denying writ in the other case was reversed and cause remanded. Mr, Justice Black spoke on behalf of the
Court whereas two companion Judges Mr. Justice Clark and Mr. Justice Burton gave their dissenting
opinion. It would be advantageous to reproduce the following extract from the majority view:
"In light of this history, it seems clear that the Founders had no ' intention to permit the trial of civilians in
Military Courts, where they would be denied jury trials and other Constitutional protections, merely by
giving Congress the power to make rules which were 'necessary and proper' for the regulation of the 'land
and naval Forces'. Such latitudinarian interpretation of these clauses would be at war with the well-
established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to
civil authority. The Constitution does not say that Congress can regulate 'the land and naval Forces and all
other persons whose regulation might have some relationship to maintenance of the land and Naval
Forces. There is no indication that the Founders contemplated setting up a rival system of Military Courts
to compete with civilian Courts for jurisdiction over civilians who might have some contact or
relationship with the Armed Forces. Courts-martial were not to have concurrent jurisdiction with Courts
of law over non-military America."
(iii) Ex parte Milligan (71 U.S. 2).
In which the facts were that the Act of March 3, 1863 pertaining to habeas corpus and regulating judicial
proceedings in certain cases inter alia entitled to the discharge if not indicted by the grand jury convened
at the first subsequent term of the Circuit or District Court of the United States for the district. The above
Act authorised the President to suspend the writ of habeas corpus during rebellion, but section 2 thereof
required that the list of the persons held as prisoners of the United States under the authority of the
President. Petitioner Milligan who was held in custody by order of the. President was not excluded from
privileges of Habeas Corpus Act of March 3, 1863, 12 Stat. 696, requiring discharge from custody after
grand jury adjourned without finding indictment or presentment. The petitioner who lived in Indiana was
arrested there and had not been resident of any of the States in rebellion. He was tried and sentenced to
death by the military commission organized during the late civil war in a State not invaded and not
engaged in rebellion, in which the Federal Courts were open. The Supreme Court by majority view held
that the military commission had no jurisdiction to try convict or sentence for any criminal offence, a
citizen who was neither a resident of a rebellious state nor a prisoner of war, nor a person in the military
or naval service and Congress could not invest them with any such power. Mr. Justice Davis delivered the
majority opinion of the Court. Whereas dissenting note was recorded by the Chief Justice to whom three
companion Judges concurred. M/s. M. Akram Sheikh, Aitzaz Ahsan and Dr. A. Basit have extensively
relied upon the majority view particularly on the following extracts: .
"No graver question was ever considered by this Court, nor one which more nearly concerns the rights of
the whole people; for it is the birthright of every American citizen when charged with crime, to be tried
and punished according to law. The power of punishment is, alone through the means which the laws
have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no
matter how great an offender the individual may be, or how much his crimes may have shocked the sense
of justice of the country, or endangered its safety By the protection of the law human rights are secured;
withdraw that protection and they are at the mercy of wicked rulers. or the clamor of an excited people. If
there was law to justify this military trial, it is not our province to interfere: if there, was not, it is our duty
to declare the nullity of the proceedings. The decision of this question does not depend on argument or
judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent
of the struggle to preserve liberty and to relieve those in civil life from military trials.
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Every trial involves the exercise of judicial power; and from what source did not military commission that
tried him derive their authority? Certainly no part of judicial power of the country was conferred on them;
because the Constitution expressly vests it in one Supreme Court and such inferior Courts as the Congress
may from time to time ordain and establish', and it is not pretended that the commission was a Court
ordained and established by Congress. They cannot justify on the mandate of the President; because he is
controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and
there is ' no unwritten criminal code to which resort can be had as a source of jurisdiction.
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It is claimed that martial law covers with its broad mantle the proceedings of this military commission.
The proposition is this: that in a time of war the commander of an armed force (if in his opinion the
exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his
military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to
the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior
officer or the President of the United States.
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It follows, from what has been said on this subject, that there are occasions when martial rule can be
properly applied. If, in foreign invasion or civil war, the Courts are actually closed, and it is impossible to
administer criminal justice according to law, then, on the theatre of active military operations, where war
really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to
preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its
duration; for if this Government is continued after the Courts are reinstated, if is a gross usurpation of
power Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise
of their jurisdiction.”
Whereas Mr. Ch. Muhammad Farooq, learned Attorney-General has referred to the following passages
from the minority view: "We think, therefore, that the power of Congress, in the Government of the land
and naval forces of the militia, is not at all affected by the fifth or any other amendment. It is not
necessary to attempt any precise definition of the boundaries of this power. But may it not be said that
Government P*139 includes protection and defence as well as the regulation of internal administration?
And is it impossible to imagine cases in which citizens conspiring or attempting the destruction or great
'injury of the national forces may be subjected by Congress to military, trial and punishment in the just
exercise of this undoubted Constitutional power? Congress is but the agent of the nation, and does not the
security of individuals against the abuse of this, as of every other power, depend on the intelligence and
virtue of the people, on their zeal for public and private liberty, upon official responsibility secured by
law, and upon the. frequency of elections, rather than upon doubtful constructions of legislative powers?
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We cannot doubt that, in such a time of public danger, Congress had power, under the Constitution, to
provide for the organization of a military commission, and for trial by that commission of persons
engaged in this conspiracy. The fact that the Federal Courts were open was regarded by Congress as a
sufficient reason for not exercising the power; but that fact could not deprive Congress of the right to
exercise it. Those Courts might be open and undisturbed in the execution of their functions, and yet
wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the
guilty conspirators.
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We think that the power of Congress, in such times and in such localities, to authorize trials for crimes
against the security and safety of the national forces, may be derived from its Constitutional authority to
raise and support armies and to declare war, if not from its Constitutional authority to provide for
governing the national forces."
In addition to the above cases' Mr. Aitzaz Ahsan has referred to the case of Lloyd C. Duncan v. Duke
Paoa Kahanamoku (90 Law ed. 688 = 327 US 304). In the above case the facts were that the two
petitioners were sentenced to prison by Military Tribunals in Hawaii. Both were civilians. The question
before the US Supreme Court was whether the Military Tribunals had power to do this. The United States
District Court for Hawaii in habeas corpus proceedings held that the Military Tribunals had no such
power and ordered that they be set. free. The Circuit Court of Appeals reversed and ordered that the
petitioners be returned to prison. The petitioners were charged with the crime which was not connected
with the Armed Forces. Mr. Justice Black who delivered the opinion of the Court, whereby the Circuit
Court of Appeals judgment was set aside, in the discourse of the judgment made the following
observation:
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As early as the 17th Century our British ancestors took political action against aggressive military rule.
When James I and Charles I authorized Martial Law for purposes of speedily punishing all types of
crimes committed by civilians the protest led to the historic Petition of Right which in uncompromising
terms objected to this arbitrary procedure and prayed that it be stopped and never repeated. When later the
American colonies declared their independence one of the grievances listed by Jefferson was that the
King had endeavoured to render the military superior to. the civil power.
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We have always been specially concerned, about, the potential .evils .of summary criminal trials and have
guarded against. them by provision embodied in the Constitution- itself. See Ex parte Milligan, 4 Wall
(US) 2, 18 L ed 281; Chambers v. Florida, 309- US 227, 84 L ed 716, 60 S.Ct. 472. Legislatures and
Courts are not merely cherished American institutions, they are indispensable to our Government.
Military Tribunals have no such standing. For as this Court has said before: ' ....the military should always
be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the
Republic who advocates the contrary. The established principle of every free people is, that the law shall
alone govern; and to it the military must always yield.'
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It is said that the military 'cannot. brook a delay' and that 'the punishment must be swift; there is an
element of time in it, and we cannot afford to let the trial linger and be protracted'. This military attitude
toward Constitutional processes is not novel. Civil liberties and military expediency are often
irreconcilable. It does take time to secure a grand jury indictment, to allow the accused to procure and
confer with counsel, to permit the preparation of a defence, to form a petit jury, to respect the elementary
rules of procedure and evidence and to judge guilt or innocence according to accepted rules of law. But
experience has demonstrated that such time is well spent. It is the only method we have of insuring the
protection of Constitutional rights and of guarding against oppression. The swift trial and punishment
which the military desires is precisely what the Bill of Rights outlaws. We would be false to our trust if
we allowed the time it takes to give effect to Constitutional rights to be used as the very reason for taking
away those rights. It is our duty, as well as that of the Military, to make sure at such rights are respected
whenever possible, even though time may be consumed. "
35. It will not be out of context to point out that Homoodur Rahman, C.J. in Brig (Rtd.) F.B. Ali's case
(supra) after referring two of the above cited cases of US Supreme Court, namely, Lloyd C. Duncan v.
Duke Paoa Kahanamoku (327 USR 304) (supra) and Curtix Reid v. Clarice B. Covert (354 U SR 1)
(supra) at p. 521 of the report observed, as under:
"These decisions are not of much assistance to us, because comparable provisions are not to be found in
our Constitutions. The decisions cited appear to be in accordance with the American Constitutional
provision under which no statute could be framed by which a civilian could lawfully be tried by a Military
Court in time of peace. The position in our country is, however, different. It seems that if the Army Act is
a valid piece of legislation, then it does permit the trial of civilians, in Y certain circumstances, by a
Military Court even in time of peace."
The above observation seems to be correct, but it is subject to qualification as pointed out by Hamoodur
Rahman, CJ in the above case that a civilian can be tried by a Military Court provided that the offence
with which he is charged has nexus with the Armed Forces. In the above Brig. (Rtd.) F.B. Ali's case the
appellants were charged with seducing or attempting to seduce the Armed Forces personnel from their
allegiance to the Government in order to '' enlist their support for furthering the design of the conspiracy
to wage war against Pakistan. In the absence of a nexus between the alleged offence and the discipline of
the Armed Forces or defence, a citizen of Pakistan is entitled to the trial by ordinary criminal Courts in
view of the change brought about in the present Constitution of 1973, which aspect has already been
discussed hereinabove. .
It seems to be well settled legal position in the United States that under the Constitution judicial power
vests in one Supreme Court and such inferior Courts as the Congress may from time to time ordain or
establish and not in am, other authority or functionary. However, in case of foreign invasion or civil war
when the Courts are actually closed and it is impossible to administer criminal ,justice according to law,
then, on the theatre of active military operation where war really prevails there is a necessity to furnish a
substitute for the civil authorities (which stand over thrown) to preserve the safety of the army and the
society and as no power is left bat the military, it is permissible to govern by martial law rules until laws
can have their free course. This is because of the necessity on account of the above situation. The above
legal position may be true for Pakistan in case of actual war when no civil Courts in certain areas may be
functioning. The contrary view. relied upon by Mr. Ch. Muhammad Farooq, learned Attorney-General
quoted hereinabove, in my view, does not reflect the correct Constitutional position.
36. Mr. Ch. Muhammad Farooq, learned Attorney-General has relied upon the following Privy Council
and English cases in support of his contention that in extraordinary situation of law and order, which was
obtaining in Sindh particularly in Karachi at the relevant time, the creation of the Military Courts for trial
of the civilians was warranted, inasmuch as in the following reports inter alia the Privy Council upheld
even the death sentences imposed by Military Courts on the civilians.
(i) D.F. Marais v. The General Officer Commanding the Lines of Communication and the Attorney-
General of the Colony (1901 AC 109).
In which the facts were that the petitioner was arrested on 15-8-1901 by the Chief Constable of the town
of Parl, about 35 miles from Cape Town, who had no warrant and did not know the cause of arrest, but
alleged that he was acting under instructions from the Military Authorities. That on 18-1-1901 he and his
fellow prisoners were removed 300 miles to the town of Beaufort West, and on their arrival were detained
in custody. It seems that on 6-9-1901 the petitioner filed petition in the Supreme Court at Cape Town
seeking his release on the ground that his arrest and imprisonment were in violation of the fundamental
liberties accrued to the subjects of his Majesty. The above prayer of the petitioner was denied on the
ground that the martial law had been proclaimed in the districts both of Paarl and Beaufort West. The
matter was brought before the Privy Council in the form of petition for leave to appeal, which was
declined for the following reason:
"They are of opinion that where actual war is raging acts done by the military authorities are not
justiciable by the ordinary Tribunals, and that war in this case was actually raging, even if their Lordships
did not take judicial notice of it, is sufficiently evidenced by the facts disclosed by the petitioner's own
petition and affidavit.
Martial law had been proclaimed over the district in which the petitioner was arrested and the district to
which was removed. The fact that for some purposes some Tribunals had been permitted to pursue their
ordinary course is not conclusive that war was not raging."
The learned Attorney-General has particularly relied upon the following portion of the. above report:
"Doubtless cases of difficulty arise when the fact of a state of rebellion of insurrection is not clearly
established.
It may often be a question whether a mere riot, or disturbance neither 'so serious nor so extensive as really
to amount to a war at all, has not been treated with an excessive severity, and whether the intervention of
the military force was necessary; but once let the fact of actual war be established, and there is a universal
consensus of opinion that the Civil Courts have no jurisdiction to call in question the propriety of the
action of military authorities. "
(ii) . Tilonko v. The Attorney-General of the Colony of Natal (1906 AC 93).
In the above case the facts were that the petitioner was indicted on 30-7-1906 before a court-martial
claiming to sit under a declaration of martial law for the crimes of sedition and public violence. He
objected to the trial on the grounds that he was not a military man, had not been arrested in the field, had
never taken up arms against the Government and that the state of the country was not such as to justify his
being tried before a court-martial. His further plea was that the Civil Courts before whom he had a right to
be tried had in no way been interrupted in their functions and were then sitting. The Privy Council
declined the petition for leave for the following reason:
"The notion that 'martial law' exists by reason of the proclamation--an expression which the learned
counsel has more than once used--is an entire delusion. The right to administer force against force in
actual war does not depend upon the proclamation of martial law at all. It depends upon the question
whether there is war or not. If there is war, there is the right to repel force by force, . but it is found
convenient and decorous, from time to time, to authorize what are called 'Courts' to administer
punishments, and to restrain by acts of repression the violence that is committed in time to war, instead of
leaving such punishment and repression to the casual action of persons acting without sufficient
consultation, or without sufficient order or regularity in the procedure in which things alleged to have
been done are proved. But to attempt to make these proceedings of so-called 'court-martial', administering
summary justice under the supervision of a military commander, analogous to the regular proceedings of
Courts of Justice is quite illusory. Such acts of justice are justified by necessity, by the fact of actual war;
and that they are so justified under the circumstances is a fact that it is no longer necessary to insist upon,
because it has been over and over again so decided by Courts as to whose authority there can be no doubt.
"
(iii) Bugga and others v. The King-Emperor [(1920) 4? IA 128].

In the above case the facts were 20 of the appellants were convicted for an offence under section 121 of
the Indian Penal ('ode, namely, of waging war or attempting to wage war against the King or abetting the
waging of war against the King, and were sentenced to death and forfeiture of property. The remaining
appellant was convicted under section 412 of the Code for receiving property stolen by dacoits, by the
Commission appointed under the Martial Law Ordinance, 1919, sitting at Lahore. The matter .was taken
up to the Privy Council in the form of petition for leave to appeal, which was declined and Mr. Justice
Viscount who spoke 'on behalf of the Privy Council, inter alia, observed as under:
"It was contended that the Ordinance under consideration, by depriving British subjects in India of the
right to be tried in the ordinary course by the established Courts of law, affected the unwritten laws or
Constitution whereon the allegiance of His Majesty's subjects in India depends, and was accordingly
invalidated by the subsection last referred to; and reference was made to Calvin's Case (7 Rep. 1, 5) and
to the maxim 'Protectio trahit subjectionem et subjectio protectionem'. It is not easy to understand how the
substitution for the ordinary Indian Courts--which are themselves of statutory origin--of another Tribunal
of a judicial character can be said to affect in any way the unwritten laws or Constitution of the country;
but apart from this observation, the argument appears to rest upon a misconception as to the meaning and
effect of the subsection. The subsection does not prevent the Indian Government from passing a law
which may modify or affect a rule of the Constitution or of the common law upon the observance of
which some person conceive or allege that his allegiance depends. It refers only to laws which directly
affect the allegiance of the subject to the Crown, as by a transfer or qualification of the allegiance or a
modification of the obligations thereby imposed."
(iv) Clifford and O'Sullivan [(1921) 2 A.C. 570].
In which the facts were that by a proclamation issued on 10-12-1920 by Viscount French, the Lord-
Lieutenant of Ireland certain counties, including County Cork were proclaimed to be under martial law.
By a proclamation issued on 12-12-1920 by Sir Nevil Macready, Commander-in-Chief in Ireland, it was
declared that all arms, ammunition and explosives in the possession of civilians, who were not in
possession of a permit were to be surrendered by 27-12-1920, and that after that date any unauthorised
person found in possession of arms, ammunition or explosives would be liable on conviction by a
Military Court to suffer death. A Military Governor was also appointed in respect of the martial law area,
who was authorised to issue orders for the holding of Military Courts in such manner as might be
necessary. It appears that in April, 1921, the appellants Clifford and O. Sullivan, two civilians, were
arrested by military forces near Mitehelstown, and on May 3, 1921, they were separately tried by a
Military Court held upon the instructions of General Strickland on a charge of being improperly in
possession of arms and ammunition and were convicted and sentenced to death, subject to confirmation.
On May 10, 1921, the appellants applied in the Chancery Division that a writ of prohibition might be
issued directing the Military Court and Sir Nevil Macready and General Strickland (the respondents) to
prohibit them not to proceed any further with the trial of the appellants or from pronouncing or
confirming any judgment upon them as the result of such trial or from carrying the same into execution or
otherwise interfering with the .appellants, on the ground that the Military Court was illegal and had no
jurisdiction to proceed with the trial or to adjudicate in any matter in relation to the appellants. They were
denied the relief by the Chancery Division as well as by the Court of Appeal. They brought the matter
before the House of Lords. The House of Lords dismissed the appeal. Mr. Justice Viscount Cave, who
spoke on behalf of the ;House of Lords, inter alia. recorded the following reason for the dismissal of their
appeal:
"In the present case the body which it is sought to prohibit, though called a military Court, neither
possesses nor claims any such authority. Its legal position has been sufficiently defined in the above
observations with regard to the right of appeal, and it is plain that it is in law not a Court or judicial
Tribunal of any kind. Nor does it claim to hold any such position. In the affidavit of Mr. Skinner, the
solicitor for the appellants, upon which the application for a writ of prohibition was founded, the
deponent, referring to the officers before whom the appellants had been charged, says: 'The said officers
did not purport to act under any commission from His Majesty to try prisoners, or under any statutory or
common law authority or as a court martial. They purported to act merely as officers carrying out
instructions from Major-General Strickland, the General Officer Commanding at Cork', and this statement
correctly described the position of the officers in question as defined both by the appellants and by the
respondents, and makes it plain that those officers did not purport to act as a Court in any legal sense. If
so, however, wise a view may be taken of the power of Courts to grant prohibition, prohibition will not lie
in this case. A further difficulty is caused to the appellants by the fact that the officers constituting the so-
called Military Court have long since completed their investigation and reported to the commanding
officer, so that nothing remains to be done by them, and a writ of prohibition directed to them would be of
no avail [see In re Poe (5 B. & Ad, 681) and Chabot v. Lord Morpeth (15 Q.B. 446)]. What the appellants
really desire is an order restraining General Macready and General Strickland from confirming and
carrying out the sentences; and it is clear that as against these officers, who are in no sense the officers or
agents of the Military Court, prohibition could not be granted .
My Lords, these considerations are sufficient to show that this appeal must fail; and this being so, I do not
think it either necessary or desirable to discuss the important questions of Constitutional law which have
been argued on the assumption that prohibition might lie."
(v) Rex v. Allen [(1921) 2 IR 241].
In the above case the facts were that on 10-12-1920 as a result of the disorder in Ireland, culminating in
the Macroom massacre, the Lord-Lieutenant proclaimed martial law in certain counties and cities of
Southern Ireland. Under cover of this proclamation on 12-12-1920, Sir Nevil Macready G.O.C. in Chief
of the Forces in Ireland, proclaimed that any unauthorised person other than members of the Armed
Forces found in possession of arms or ammunition, would be liable, on conviction by a Military Court, to
suffer death. On 19-1-1921 John Allen, a civilian, was arrested within the proclaimed area in possession
of arms. and ammunition, and on being convicted by a Military Court, was sentenced to death. On 9-2-
1921 an application was made in the King's Bench Division of Ireland for writs of prohibition, habeas
corpus and certiorari, on the ground that the conviction was in excess of the jurisdiction of the Court.
Chief Justice Molony declined the above petition for the following reason:
"As regards 4, could the Military Courts impose a sentence of death? In considering any question arising
out of the administration of martial law by Military Courts, we must not lose sight of the fact that they are
not, in strictness, Courts at all; but, as Mr. Justice Stephen says, 'merely committees formed for the
purpose of carrying into execution the discretionary powers assumed by the Government' (History of
Criminal Law, Vol. I, p. 216); and their position could not be more accurately stated than it is by Lord
Halsbury in Tilonko v. The Attorney-General of Natal, (1907) A.C. 93-95, where he said: 'If there is war,
there is the right to repel force, by force; but it is found convenient and decorous, from time to time, to
authorize what are called "Courts", to administer punishments, and to restrain, by acts of repression, the
violence that -is committed in time of war, instead of leaving such punishments and repression to the
casual action of persons acting without sufficient consultation or without sufficient order or regularity m
the procedure in which things alleged to have been done are proved But to attempt to make these
proceedings by so-called Courts-martial. administering summary justice under the supervision of a
military commander, analogous to the regular proceedings of Courts of Justice is quite illusory'. "
37. In my view, the above cases have no application to the present controversy, inter alia, for the reasons,
firstly, the Privy Council cases relate to the colonies, the inhabitants of which did not enjoy any
Fundamental Rights as pointed out by the Privy Council in the case of Bugga and others v. The King
Emperor [(1920) 47 I.A. 128] (supra), the relevant portion of which has been quoted hereinabove,
wherein it has been highlighted that the British subjects in India had no right to be tried m ordinary course
by established Courts of Law as the ordinary Courts were the creature of the statute, which had been
substituted by another Tribunal of judicial character by enacting law in respect thereof; and secondly, the
areas of the colonies involved where the trial had taken place were under martial-law and in two of the
above Privy Council cases mentioned in para. 36(i)(ii) the colonies concerned were at war. The facts of
the above two English cases are, more or less, identical inasmuch as in Ireland there was armed rebellion
and the martial-law was imposed in the areas involved. Even otherwise the same do not advance the case
of the Federation. In the case of Clifford and O'Sullivan (supra) the House of Lords observed that "in the
present case the body which it sought to prohibit, though called a Military Court, neither possesses nor
claims any such authority". In other words a Military Court is not in fact and law a Court as is understood
in legal parlance.
The position in Pakistan is entirely different, inasmuch as, firstly, the Fundamental Rights excluding the
Fundamental Rights mentioned iii clause (1) of Article 233 of the Constitution are very much in force,
and secondly, no martial-law has been imposed nor it can now be imposed as pointed out hereinabove in
view of the change in the language of Article 237 of the present Constitution highlighted hereinabove,
wherein the word "martial-law" has been omitted, the legal effect of which is, that the Parliament cannot
make any law indemnifying any person in the Federal Government or Provincial Government in respect
of any act done by him during the martial-law period even for the maintenance and restoration of order.
38. Another submission canvassed at the Bar by the learned Attorney-General was that the convening of
the Military Courts depended on the requirement of aid needed by the civil power and, therefore, they are
not Courts established under law in terms of Article 175(1) of the Constitution, but in fact, it is an act
incidental and ancillary under clause (1) of Article 245 of the Constitution, or to put it differently, it is a
step or measure meant to be taken under the above clause of the above Article by the Federal Government
to carry out Constitutional duties and obligations envisaged by clause (3) of Article 148, namely, to
protect every Province against external aggression and internal disturbances and to ensure that the
Government of every Province is carried on in accordance with the provisions of the Constitution and,
hence, the impugned Ordinance cannot be tested on the touchstone of Mehram Ali's case (supra).
According to him, Military Courts/Tribunals are of the nature, which are exempted from the purview of
Articles 175 and 203 of the Constitution like the Courts and Tribunals referred to in Chapter 3-A, Articles
212 and 225.
The above contention is not tenable as convening of Military Courts for trial of civilians for civil offences
having no nexus with the Armed Forces or defence of Pakistan cannot be treated as an act incidental and
ancillary under clause (1) of Article 245 of the Constitution. It may again be observed that the scope of
clause (1) of Article 245 is to call the Armed Forces to act in aid of the. civil power. The scope of the
above aid to civil power has been discussed hereinabove in detail. It may again be observed that the above
aid to the civil power is to be rendered by the Army as a coercive apparatus to suppress the acts of
terrorism inter alia by apprehending offenders and by patrolling on the roads/streets, where there is civil
disorder or disturbances of the magnitude which the civil power is unable to control.
In my view the power to legislate the impugned Ordinance for establishing/convening Military Courts
cannot be spelt out from clause (1) of Article 245 nor it can be derived from Entry No. 1 read with Entry
No. 59 of Part I of the Fourth Schedule contained in the Federal Legislative List relied upon by the
learned Attorney-General. The above Entries read as follows:
" 1. The defence of the Federation or any part thereof in peace or war; the military, naval and air forces of
the Federation and any other armed forces raised or maintained by the Federation; any armed forces
which are not forces of the Federation but are attached to or operating with any of the Armed Forces of
the Federation including civil armed forces; Federal Intelligence Bureau; preventive detention for reasons
of State connected with defence, external affairs, or the security of Pakistan or any part thereof; persons
subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence
or for the prosecution of war.
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59. Matters incidental or ancillary to any matter enumerated in this Part."
The perusal of the above-quoted Entry No. 1 indicates that none of the items mentioned therein can justify
the legislation of a statute for setting up or ~!, convening the Military Courts for the trial of civilians for
civil offences. The residuary Entry No. 59 also quoted hereinabove providing for matters incidental and
ancillary to any matter enumerated in the above part cannot be treated as a, source of power conferring
competency on the Legislature to legislate the impugned Ordinance. It may be pointed out that factually
Entry No. 55 in the above Federal Legislative List deals with the subject of Courts by providing that
"Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in
this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the
jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers."
The above entry indicates that the Parliament can legislate in respect of jurisdiction and power of all
Courts except the Supreme Court with respect to any of the matters in the aforesaid list but to such extent
as is expressly authorised by or under the Constitution. It also indicates that the jurisdiction of the
Supreme Court can be enlarged but it cannot be curtailed.
It may also be mentioned that in support of the above submissions the learned Attorney-General's second
limb of the argument was that since the expression civil power' includes Legislature. Executive and
Judiciary, the Federal Government can call in aid the Armed Forces even in respect of the Courts. It is
true that the Armed Forces can be called in aid of the Judiciary. This conclusion is supported inter alia by
Article 190 of the Constitution which has already been referred to hereinabove and which imposes
Constitutional duty on all Executive and Judicial Authorities throughout Pakistan to act in aid of Supreme
Court. But, as pointed out hereinabove that calling in aid of civil power does not empower the substitution
or replacement by the Armed Forces of a civil power. We inquired from the learned Attorney-General
that if the Armed Forces are called in aid of the Legislature, whether they can legislate while acting in aid'
He was unable to give any reply to the above query.
39. I may also take up another submission of the learned Attorney-General, namely, that since the
Military Courts dispose of the cases quickly and award severe punishments, it is a very effective deterrent
factor against commission of crimes. The above arguments were supplanted by Mr. Muhammad lqbal
Radd, learned Advocate-General, Sindh, who has referred to pendency of the criminal cases before the
various Courts in the Province of Sindh already referred to hereinabove. The learned Attorney-General in
support of his above submission has referred to the extracts from the following judgments/orders of this
Court.
(i) State through Advocate-General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1).
"3. It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of
dacoities and other offences, the people are feeling insecure. ,The learned trial Court has dilated upon
these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the
Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has
been committed in the manner in which it has been alleged by the prosecution, the technicalities should be
overlooked without causing any miscarriage of justice."
(ii) Zeeshan Kazmi v. The State (PLD 1997 SC 267).
"The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the State
functionaries/agencies which are entrusted with the duty to protect the life, property and honour of
citizens. either themselves actively participate in the commission of the heinous crimes or they provide
protective umbrella to the criminals. Their credibility has been denuded to the extent that the victims of
the crimes do not approach them for their help or protection which they are otherwise entitled to as a
matter of right under the Constitution.
We may observe that it has now become common that the accused persons involved in heinous offences,
if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent
special provisions have been enacted and/or are being enacted in the special statutes prescribing the
minimum amount of bail for example, under section 5(7) of the Offences in Respect of Banks (Special
Courts) Ordinance, 1984, it has been provided that the bail amount would not be less than twice of the
amount involved in the commission of the offences. Keeping in view the above bleak scenario which has
emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the
unprecedented continuous steep inflationary tendency resulting in .the loss of money value, the Courts
should not show any undue leniency while forfeiting bail bond amount. The approach should be dynamic
and progressive oriented with the, desire to discourage the accused persons to jump bail bonds. There is
no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused
person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any
mitigating circumstances."
(iii) Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445).
"We may point out that this Court is not oblivious of the factum that the law and order situation has been
considerably deteriorated and new types of terrorism have emerged due to tremendous progress made in
the field of technology. This Court in more than one cases has held that the approach of the Court while
considering criminal matters should be dynamic and it should take into consideration the surrounding
situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the
Court's conscience is satisfied that factually the convict was guilty of the offence."
It may be stated that the above extracts from the above judgments, of which I happened to be the author,
indicate that this Court is conscious of the fact that the law and order situation has deteriorated and that
the criminal instinct and propensity has penetrated in all walks of life so much so even some of the
personnel of state functionaries/agencies, who are entrusted with the duty to protect life, property and
honour of citizens, either themselves actively participate in the commission of heinous crimes or they
provide protective, umbrella to the criminals. Their credibility has been denuded to the extent that victims
of crimes usually do not approach them for their help and protection to which they are otherwise entitled
to as a matter of right under the Constitution. Keeping in view the above situation, it has been inter alia
observed in the above reports that the offenders accused of heinous crimes should not be allowed to
escape their punishment on mere technicalities if the Court is otherwise satisfied about their guilt.
On the other hand, Mr. Aitzaz Ahsan submitted that the experience of criminal jurisprudence indicates
that the use of force or establishment of Military Courts is no solution of wide spread break down of law
and order in the society. According to him, when State itself adopts methods of avoiding due process, or
to put it differently that, when State reduces itself to a level of criminal by use of violence, more citizens
become criminals. In support of his above submission he has referred to, inter alia, some passages from
the following treatises:
(i) Criminal Law, Criminology and Criminal Administration Edited by K.D. Gaur.
"Punishments were made severer in order to cover up weakness in the detective machinery. In a system
where the agency for detention and machinery for prosecution is weak, the chances of offending with
impunity. are many and bolder spirits will take the risk. Such a position is generally taken as one of the
justification of a policy of terror which is calculated to set against the chances of escape, the dread of the
awful consequences if the delinquent is apprehended. The experience of the 19th century, as already
indicated, has made it clear that severity of punishment has a strictly limited effect. Explanation for this is
to be found to the generally accepted view amongst the psychiatrists that a common pre-disposing factor
in crime is a deep seated and often unconscious grudge or resentment against society working in the mind
of the criminal. The deterrent effect of severity is outweighed by fortification of this resentment and this
resentment rather increases after experiencing the severe punishment. This in turn works to the detriment
of community."
(ii) The Oxford Handbook of Criminology Edited by Mike Maguire etc.
"Socio-Cultural Explanations of Violence.
Gartner (1990) has conducted some cross-national research in developed countries to see that factors best
account for variations in homicide rates. She concludes that more micro-level research is required, but
observes that:
Nations with greater material deprivation, more cultural heterogeneity, more family dissolution, higher
female labour force participation, and greater exposure to official violence generally have higher
homicide rates ... A disproportionate number of teens and young adults was not associated with higher
homicide rates for any age group, among these 18 nations ... Female labour force participation may
influence homicide by raising the motivations for female and child homicide, rather than by weakening
controls. (Gartner 1990: 102).
Beraithwaite (1989) likewise focuses on economic inequality as a primary predictor of homicide rates.
Links between unemployment and criminality are stronger for property crime than for violent crime, but
more sophisticated socio-logical accounts might separate out the unemployed into those who are
psychologically integrated into 'straight society' and those who see themselves as part of an 'underclass'
(and are policed as if they were). Burgess and Draper (1989) examine family violence in evolutionary
terms arguing that under certain conditions child maltreatment has a benefit in helping the fittest survive:
moreover, hostility towards step-children, for example, may be explicable in terms of our being prepared
to act in a more hostile way towards people who share none of our genes, while greater rates of violence
against poor and 'physically challenged' children are understandable in relation to competition for scarce
resources and optimizing future individual reproductive potential. (They explicitly state, however, that
violence may currently be maladaptive.)"
I may point out that, unfortunately, in our country we have a weak agency for detection of crimes and an
inefficient machinery for prosecution which are inter alia the cause of delay in disposal of criminal cases
and higher percentage of acquittal orders. No doubt, that delay also occurs in disposal of criminal cases
on account of lapses on the part of some of the Presiding Officers, but the main reason seems to be heavy
pendency which warrants increase in the strength of the Courts. We will have to streamline and make
more efficient the agency for detection of crimes, the machinery for prosecution and the Courts in I order
to have better deterrent effect on criminals.
40. Mr. Ch. Muhammad Farooq, learned Attorney-General has also urged that in view of clause (2) of
Article 245 of the Constitution regarding the validity of any direction issued by the Federal Government
under clause (1), the jurisdiction of this Court is barred unless it is demonstrated that action is coram non
judice or in excess of jurisdiction or mala fide. He invited our attention to the case of Federation of
Pakistan and another v. Malik Ghulam.Mustafa Khar (PLD 1989 SC 26), wherein this Court while
construing clauses (2) and (5) of Article 270-A of the Constitution, held that notwithstanding the ouster of
jurisdiction by a non obstante clause, the Superior Courts retained the jurisdiction of judicial review in
respect of acts, actions or proceedings which were coram non judice or in excess of jurisdiction or mala
fide. According to him, in view of the extensive terrorism obtaining in the Province of Sindh, particularly
in Karachi, the Federal Government's above action to get the impugned Ordinance promulgated for
empowering convening of the Military Courts for trial of civilian offenders for civil offences is a bona
fide action, which does not suffer from any of the above three jurisdictional defects, and thus this Court
cannot interfere with the above action. In this behalf I may observe that there is marked distinction
between an executive action and a legislative action. The above principle of law enunciated in the case of
Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 $C 26) (supra) generally
covers an executive action. No mala fide can be attributed to the Parliament as it is a sovereign body to
legislate on any subject, for which it has been empowered under the Constitution to legislate. The Court
cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground
that it is violative of a Constitutional provision: In this respect reference may be made to the case of Mehr
Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 SC 11). In the present
case I have already held hereinabove that neither Article 245 of the Constitution nor Entry No. 1 of the
Federal Legislative List read with Entry No.59 empowers the Legislature to legislate a statute which may
establish or convene Military Courts in substitution of the ordinary Criminal and Civil Courts. In this
view of the matter, the above contention of the learned Attorney-General is not germane to the
controversy at issue.
41. It was further contended by the learned Attorney-General that no one has any vested right in a
particular forum for trial specially when procedure provided under the Army Act for holding trial is not
violative of any principle of fair trial as held by this Court inter alia in the case of Brig. (Retd.) F.B. Ali
(supra). The above contention is also devoid of any force. It may again be observed that this Court has
held inter alia in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah
Memon and 16 others (PLD 1993 SC 341) (supra), the relevant portion of which has been quoted
hereinabove that the right to have access to justice through the forums as envisaged by the Constitution is
a Fundamental Right. The above view was reiterated by this Court in the case of Al-Jehad Trust v.
Federation of Pakistan and others (PLD 1996 SC 324) (supra). If the forum provided under the impugned
Ordinance would have been within the parameters laid down by this Court in the case of Mehram Ali and
others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra), the above contention would
have force, but since I have held that the Military Courts do not fall within the compass of the law
enunciated in the above case, the trial by such Military Courts of civilians for civil offences which have
no nexus with the Armed Forces or defence of Pakistan would be violative of the Constitution.
42. It was then submitted by the learned Attorney-General that in view of clause (3) of Article 8 of the
Constitution, the other clauses of the above Article are not applicable as the impugned Ordinance is a law
relating to members of the Armed Forces for the purpose of ensuring proper discharge of their duties
mandated by clause (1) of Article 245 read with clause (3) of Article 148 of the Constitution. In order to
examine the above contention in proper perspective, it may be pertinent to refer to clause (2) and clause
(5) of above Article 8 of the Constitution before dilating upon clause (3) relied upon by the learned
Attorney-General. It may be observed that clause (2) of the above Article enjoins that the State shall not
make any law which takes away or abridges the rights so conferred and any law made in contravention of
this clause shall, to the extent of such contravention, be void. Whereas clause (5) thereof postulates that
the rights conferred by this Chapter (i.e. Chapter relating to the Fundamental Rights) shall not be
suspended except as, expressly provided by the Constitution. If clause (3) of above Article 8 is to be
viewed with reference to the above two clauses, it becomes evident that paragraph (a) of clause (3) does
not empower the Legislature to legislate the impugned Ordinance for providing a parallel judicial system.
The above paragraph (a) of clause (3) provides that the provision of the above Article 8 shall not apply to
any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged
with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or
the maintenance of discipline among them. The above paragraph refers to any law which may be in
existence or which may be enacted in order to enable the Armed Forces or other, forces to discharge their
duties and to maintain proper discipline. It has nothing to do with the question, as to whether the Military
Courts can try civilians for civil offences which have no nexus with the Armed Forces. The Legislature
can legitimately amend the Army Act or even to enact a new law covering the working of the Aimed
Forces, Police or other forces which may include the taking of disciplinary action against the delinquents
including trial within the parameters of such law. In fact the Army Act and the Rules framed thereunder
are complete code for regulating the working of the Army including the maintenance of discipline and for
punishment for civil and criminal wrongs. Not only clause'(3) of Article 8 but clause (3) of Article 199
expressly excludes the jurisdiction of the High Court from passing any order for the enforcement of any
of the Fundamental Rights conferred by Chapter I of Part II of the Constitution on the application made
by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time
being subject to any law relating to any of those Forces, in respect of his terms and conditions of service,
in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a
member of the Armed Forces of Pakistan or as a person subject to such law.
1t will not be out of context to mention that clause (1) of Article 4 provides that to enjoy the protection of
law and to be treated in accordance with law is the inalienable right to every citizen, wherever he may be,
and of every other person for the time being within Pakistan. Whereas clause (2) thereof lays down that in
particular no action detrimental to the life, liberty, body, reputation or property of any person shall be
taken except in accordance with law. The above Article is to be read with Article 9 of the Constitution
which postulates that no person shall be deprived of life or liberty save in accordance with law. If a
person is to be deprived of his life on account of execution of death sentence awarded by a Tribunal
which does not fit in within the framework of the Constitution, it will be violative of above Fundamental
Right contained in Article 9. However, the learned Attorney-General contended that in fact terrorists who
kill innocent persons violate the above Article 9 by depriving them of their lives and not the Federal
Government which caused the promulgation of the impugned Ordinance with the object to punish
terrorists. No patriotic Pakistani can have any sympathy with terrorists who deserve severe punishment,
but the only question at issue is, which forum is to award punishment, i.e. whether a forum as envisaged
by the Constitution or by a Military Court which does not fit in within the framework of the Constitution.
No doubt, that when a terrorist takes the life of an innocent person, he is violating Article 9 of the
Constitution. but if the terrorist, as a retaliation, is deprived of his life by a mechanism other than through
due process of law within the framework of the Constitution, it will also be violative of above Article 9.
43. As regards the violation of Article 25 of the Constitution, it may be observed that the contention of the
learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article,
inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be
referred to the Military Courts. On the other hand, the learned Attorney-General has urged that the
offences triable under the impugned Ordinance are those which are mentioned in section 6 and the
Schedule to the impugned Ordinance and that this Court has already held in more than one case that
different laws can be enacted for different sexes, persons of different age group, persons having different
financial standards and persons accused of heinous crimes. No doubt, that this Court inter alia in the case
of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) has held so, which has been reiterated in
the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra).
However, in the present case the basic question is as to the vires of the impugned Ordinance on the
ground of providing parallel judicial system, but at the same time the impugned Ordinance is also
violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government
under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by
this Court in the case of Brig. (Retd.) F.B. Ali (supra). There is no mandatory provision providing that all
the offences mentioned in section 6 and the Schedule shall be triable by the Military Courts convened
under section 3 of the impugned Ordinance.
44. Another aspect pertaining to the impugned Ordinance which needs to be attended to is the amendment
of the Preamble to the impugned Ordinance by' Ordinance I of 1999 on 30-1-1999, of which this Court
can take judicial notice.
It may again be observed that original Preamble to the impugned Ordinance, provided that "Whereas it is
expedient to enumerate the powers and duties of the Armed Forces acting in aid of civil power for the
achievement of the objects of the Order made under paragraph (c) of clause (2) of Article 232 of the
Constitution of the Islamic Republic of Pakistan on the 30th October, 1998". It may further be observed
that Article 245 of the Constitution was invoked for Karachi on 20-11-1998 through Notification SRO
1304(1)/98, dated 20-11-1998 issued by the Ministry of Interior for maintaining law and order and
security within the limits of the Karachi Division by the Armed Forces through another Notification SRO
1316(1)/98, dated 27-11-1998 was issued for invoking Article 245 of the Constitution for the above
purpose in respect of remaining four Divisions of Sindh, namely, Hyderabad, Mirpur Khas, Sukkur and
Larkana, but the above Article 245 was not invoked in respect of other Provinces of Pakistan or any part
thereof. The original Preamble to the Ordinance described the purpose of the Ordinance as to achieve the
objects of the Order made under paragraph (c)' of clause (2) of Article 232 of the Constitution of the
Islamic Republic of Pakistan on 30-10-1998, whereby the Federal Government had authorised the
Governor to take the executive function of the Province of Sindh. The above two Notifications under
Article 245 of the Constitution pertaining to Sindh were issued to achieve the above objective as stated
above. However, on account of amendment in the Preamble, whereby the words "for the achievement of
the objects of the Order made under paragraph (c) of clause (2) of Article 232 of the Constitution of the
Islamic Republic of Pakistan on 30-10-1998" have been omitted, the scope of the impugned Ordinance
has been extended to the whole of Pakistan and, thus now Military Courts can be established/convened
throughout Pakistan without reference to the objects contained in the original Preamble to the Ordinance.
This factum lends support to the learned counsel for the petitioners' contention that the Federal
Government intends to establish a parallel judicial system throughout Pakistan.
45. Before concluding the above discussion, it will not be out of context to point out that the third proviso
to section 497 of the Criminal Procedure Code is also substantially contributing towards the delay in the
disposal of criminal cases as it entitles an accused person accused of an offence not punishable with death
to obtain bail on the expiry of one year from the date of his arrest, and in case of an offence punishable
with death on the expiry of two years' period from the date of his arrest. Some of the accused persons by
their design ensure that the trials of their cases are delayed, so that they may come out of jails on the
expiry of the above statutory periods. In my humble view, the above provision has been misused and the
same needs to be deleted. I may also observe that even before the incorporation of the above proviso, it
was open to a Court to grant bail in a fit case on the ground of inordinate delay in the trial of a case, but
no accused person was, entitled to claim bail as a matter of right on the expiry of certain period.
46. It may be stated that at the time of conclusion of the arguments, Dr. Basit had invited our attention to
an application under Order V, Rule 2 (Pakistan Supreme Court Rules, 1980) which he presented in the
Court and not in the office and which was not numbered. By the above application, he wanted to
challenge the amending Ordinance XIII of 1999. We declined to entertain the same, and the same is
dismissed.
These are the reasons pursuant to the above short order quoted hereinabove in para 1.
(Sd.)
AJMAL MIAN, C.J
have recorded my separate reasons
(Sd.)
SAIDUZZAMAN SIDDIQUI, J
I agree-However, in view of the importance of the case, am adding a separate note.
(Sd.)
IRSHAD HASAN KHAN, J
agree. However, I may add a note
(Sd. )
RAJA AFRASIAB KHAN, J

I also agree with the Honourable Chief Justice
(Sd.)
MUHAMMD BASHIR JEHANGIRI, J
I agree with Honourable Chief Justice
(Sd.)
NASIR ASLAM ZAHID, J
I agree and have added a brief note
(Sd.)
MUNAWAR AHMED MIRZA, J
I agree may also append a separate note.
(Sd.)
MAMOON KAZI, J
I agree
(Sd.)
ABDUR REHMAN KHAN, J
SAIDUZZAMAN SIDDIQUI, J. ---We disposed of the abovementioned . cases by the following short
order announced on 17-2-1999:--
"After hearing the learned counsel for the petitioners, the petitioners in person, the learned Attorney-
General for Pakistan and the learned Advocate-General, Sindh, for the reasons to be recorded later, we
are-of the view that Ordinance No.XII of 1998 as amended upto date in so far as it allows the
establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6
and the Schedule to the above Ordinance is unconstitutional, without lawful authority and of no legal
effect and that the cases in which sentences have already been awarded but the same have not yet been
executed shall stand set aside and the cases stand transferred to the Anti-Terrorist Courts already in
existence or which may hereinafter be created in terms of the guidelines provided hereunder for disposal
in accordance with the law. The evidence already recorded in the above cases and the pending cases shall
he read as evidence in the cases provided that it shall not affect any of the powers of the Presiding
Officers in this regard as is available under the law. The above declaration will not affect the sentences
and punishments already awarded and executed and the cases will be treated as past and closed
transactions.
2. However, we are not oblivious of the fact that terrorism in Karachi and in other parts of Pakistan has
not only taken toll of thousands of innocent lives but has also affected the economy of the entire country
and it is a matter of paramount importance that this menace is eliminated effectively in the shortest
possible time, for which a solution be found within the framework of the Constitution.
3. Since we are seized of these petitions in exercise of our Constitutional jurisdiction under Article 184(3)
of the Constitution, we lay down the following guidelines which may contribute towards the '
achievement of the above objective:-
(i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be
established under the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A.) or under any law in
terms of the judgment of this Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD
1998 SC 1445):
(ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no
other case be entrusted to it;
(iii) The concerned Special Court should proceed with the case entrusted to it on day to day basis and
pronounce judgment within a period of 7 days as already provided in A.T.A. or as .may be provided in
any other law;
(iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring
that all witnesses will be produced as and when required by the concerned Special Court;
(v) An appeal arising out of an order/judgment of the Special Court shall be decided by the Appellate
Forum within a period of 7 days from the filing of such appeal;
(vi) Any lapse on the part of the Investigating and Prosecuting Agencies shall entail immediate
disciplinary action according to the law' applicable;
(vii) The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court
for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines;
"(viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to
monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure
that if any petition for leave/or appeal with the leave is filed, the same is, disposed of without any delay in
the Supreme Court;
(ix) That besides invoking aid of he Armed Forces in terms of sections 4 and 5 of the A.T.A., the
assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at
all stages including the security of the Presiding Officers, Advocates and witnesses appearing in the cases,
minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the
sentence."
These are the reasons for the above short order. The above petitions under Article 184(3) of the
Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the constitution), have
been filed directly before this Court to question the validity and constitutionality of the Military Courts
set up within the Karachi Division of the Province of Sindh, under the provisions of Pakistan Armed
Forces (Acting in Aid of the Civil Power) Ordinance, 1998 (hereinafter to be referred as 'the Ordinance'),
to try persons charged with offence of 'Civil Commotion' as defined in section 6 of the Ordinance, and
other offences mentioned in the Schedule to the Ordinance.
2. Constitution Petition No.37 of 1998 is filed by Sh. Ltaqat Hussian. an M.N.A. of Sindh, Constitution
Petition No.38 of 1998 is filed by Syed 1qbal Hyder, Chairman of the political party operating under the
name and style of Muslim Welfare Movement of Pakistan, Constitution Petition No.42 of 1998 is filed by
Muttahida Qaumi Movement, a political party, Constitution Petition No.43 of 1998 is filed by Shahid
Orakzai, a free lance journalist and Constitution Petition No.4 of 1999 is instituted by Nisar Khurho,
M.P.A. and Leader of Opposition-in the Provincial AcsemblY of Sindh.
3. We have heard Mr. Muhammad Akram Shaikh, Senior Advocate Supreme Court for petitioner in C.P.
No.37 of 1998, petitioner Syed Iqbal Hyder, in person in C.P. No.38 of 1998, Dr. Abdul Basit, Advocate
Supreme Court for petitioner in C.P. No.42 of 1998, Shahid Orakazi, petitioner in person in C.P. No.43 of
1998 and Mr. Aitzaz Ahsan, Advocate Supreme Court, for petitioner in C.P. No.4 of 1999. The learned
Attorney-General appeared for the Federation while Mr. Iqbal Raad, Advocate-General Sindh,
represented the Sindh Government.
4. The background of the controversies raised in the above petitions may be stated as follows. On 20th
November, 1998, the President of Pakistan promulgated the Ordinance, which provided that it extended to
such areas of the Province of Sindh where Armed Forces are called upon to act in aid of the civil power
under Article 245 of the Constitution. The Ordinance was later amended by Ordinances Nos. XIII of
1998, XVII of 1998 and I of 1999, issued on 26-11-1998, 22-12-1998 and 30-1-1999 respectively. As a
result of these amendments the Ordinance in its modified form, now extends to whole of Pakistan.
Sections 2 and 3 of the Ordinance provide for convening of as many trial Courts and the Courts of appeal
as may be deemed necessary to deal with the cases arising under the Ordinance, in accordance with the
provisions of Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance,
1961, as the case may be, on the direction of Federal Government by the Chiefs of the Staff of Armed
Forces or an Officer not below the rank of a Brigadier or equivalent rank in Pakistan Air Force and
Pakistan Navy, authorised by the concerned Chief of the Staff. Section .4 of the Ordinance authorises the
Courts constituted under sections 2 and 3 ibid, to try any person including those not being the member of
Armed Forces, if charged with commission of any of the offences mentioned in the Schedule and the trial
is to be concluded within 3 days of its commencement. The procedure prescribed for trial of cases under
the Army, Air Force and Navy Acts, is made applicable to the trials before the Court constituted under
sections 2 and 3 of the Ordinance. Under section 5 of the Ordinance, the investigation of the offences
specified in the Schedule, is to be conducted in accordance with the provisions of Criminal Procedure
Code, 1898 (hereinafter to be referred as 'the Code') but in appropriate cases the same may be conducted
by the Armed Forces. Section 6 defines the offence of "civil commotion" and its punishment is prescribed
under section 7 of the Ordinance. Section 8 provides for appeal against the final judgment of the trial
Court. The offences triable under the Ordinance are made . cognizable and non-bailable under section 9 of
the Ordinance. Section 10 of the Ordinance provides that the offences punishable under the Ordinance, if
committed before the enforcement. of the Ordinance, can be tried under the Ordinance, but the
punishment for such offences will be that as prescribed under the law at the time the offence was
committed. Section 10-A, provides for trial in absentia of an absconding accused after issuance of the
proclamation as provided under section 87 of the Code. However, before commencement of such trial, an
Advocate is to be appointed for the absconding accused and the absconding accused shall be deemed to
have not admitted the offence charged with. Section 11 provides for transfer of a pending case relating to
the scheduled offences to the Court constituted under section 3, by the Federal Government. Section 12
provides for indemnity against all legal proceedings in respect of anything done or intended to be done in
good faith under toe Ordinance. Section 13 gives overriding effect to .the provisions of the Ordinance
overall other laws for the time being in force. Section 14 vests the Federal Government with powers to
amend the Schedule by way of addition, modification or omission of any entry in the Schedule provided it
has nexus with the object of the Ordinance through issuance of notifications in the official Gazette.
5. Mr. Muhammad Akram Shaikh, the learned Senior Advocate Supreme
Court in C.P. 37 of 1998 has raised the following contentions:--
(i) That the Ordinance is repugnant to the provisions of Articles 2A, 4, 9 10, 14 and 25 of the
Constitution;
(ii) That the Ordinance militates against the concept of independence of Judiciary enshrined in the
Constitution;
(iii) That trial of civilian before Military Courts is against the accepted norms and principles of
criminal jurisprudence, the world over;
(iv That by extending the jurisdiction of Military Courts established under the Ordinance, a parallel
system of judiciary has been established which cannot be countenanced under the Constitution;
(v) That the Military Courts established under the Ordinance are outside the scope of power of
judicial review of superior Courts which is not sustainable in Constitutional scheme of the Constitution;
(vi) That the Federal Government could not vest the Military Courts with powers of adjudication in
the garb of calling the Armed Forces in aid of civil power under Article 245 of the Constitution.
Dr. A. Basit, the learned Advocate Supreme. Court in C.P. No.42 of 1998 advanced the following line of
arguments:-
(i) That the Federal Government has no power under Article 245 of the Constitution to promulgate
any Ordinance for calling the Armed Forces in aid of civil power, outside the provisions of sections 129
to 132-A of the Code;
(ii) That the expression 'call in aid' used in Article 245 of the Constitution necessarily implies that the
agency called upon to render help is possessed of the capacity and capability to render the aid asked for.
Army being a highly trained and organised force, could only be called in aid of civil power for utilising its
coercive force to quell terrorism, or to control the deteriorating law and order situation beyond the control
of civil authorities. Army cannot be called and entrusted with the responsibility of judicial functions for
which it is neither trained nor it is possessed of such expertise;
(iii) That the Ordinance has created new offences and provided for its punishment retrospectively
which is not permissible under the Constitution;
(iv) That the Courts Martial constituted under the Army Act though may be a part of our legal system,
are certainly not the component of our judicial system;
(v) That Pakistan Army Act is a Code of Conduct meant for maintaining discipline in the Armed
Forces, which cannot be used for regulating the judicial functions; and
(vi) That the trial of civilians before the Military Courts under the Ordinance, is violative of the
guarantees provided under Articles 12 and 25 of the Constitution.
Mr. Shahid Orakzai, the petitioner in C.P. No.43 of 1998, has contended as follows:-
(i) That the Constitution is based on the concept of executive, legislative and judicial federalism
which means non-interference by the Federal Government in the affairs of Provinces. The Federal
Government b~ enacting the Ordinance has violated the above spirit of the Constitution
(ii) That the legislative power of Parliament is subject to constraints mentioned in Article 142 of the
Constitution, which limits its authority to legislate exclusively in respect of items mentioned in the
Federal Legislative List. The Parliament and a Provincial Assembly. both, are authorised to legislate in
respect of items mentioned to the Concurrent List of the Constitution. The Parliament, therefore. has no
power to legislate in respect of items not enumerated in the two lists of the Constitution (Federal and
Concurrent Lists), which lie within the exclusive domain of the Provincial Assembly However, when the
emergency is proclaimed in terms of Article 232(1) of the Constitution the Parliament becomes entitled to
legislate also in respect of items within the exclusive domain of a Provincial Assembly in terms of Article
232(2)(a) of the Constitution. Item No. l of the Concurrent List specifically excludes legislation
respecting 'use of naval, military and
air force in aid of civil power' and, therefore, the Parliament could not competently promulgate the
Ordinance;
(iii) That the object as stated in the Preamble of the Ordinance, is the achievement of the objectives of
the Order dated 30-10-1998 issued under Article 232(2)(c) of the Constitution while the objects stated in
the Order dated 30-10-1998 is to give effect to the objectives of the Proclamation of Emergency issued on
28-5-1998. The Preamble of the Ordinance, therefore, failed to spell out clearly the object of the
legislation;
(iv) That the provisions of section 1 I of the Ordinance regarding transfer o1-. a pending case to the
Courts constituted under the Ordinance are in direct conflict with the provisions of Article 185(2)(b) of
the Constitution; and
(v) . That the direction of the Federal Government under Article 245 of the Constitution to call the Armed
Forces in aid of civil power cannot be given effect to in the absence of clear and specific demarcation of
the area where such aid is needed/required.
Mr. Aitzaz Ahsan, the learned Advocate Supreme Court in C.P. No.4 of 1999 has urged. the following
grounds in support of his petition:-
(i) That the setting up of the Military Courts for trial of civilians is ,no answer, to a widespread
breakdown of law and order situation;
(ii) That the setting up the Courts under the Ordinance, outside the control and supervision of High
Court is violative of Articles 175 and 203 of the Constitution;
(iii) That the Ordinance is violative of Article 25 of the Constitution;
.(iv) That the citizens have inalienable right to due process and civil procedure which stand violated on
account of promulgation of the Ordinance;
(v) That the Ordinance has violated the guarantees provided under Article 9 of the Constitution;
(vi) That the Ordinance has obstructed the right of access to ordinary Civil Courts enjoyed by the
civilian population;
(vii) That the setting up of the Military Courts under the Ordinance is violative of independence of
Judiciary guaranteed under the concept of trichotomy of power enshrined in the Constitution inasmuch as
(a) the aggrieved party cannot seek judicial review of the judgment of Courts set up under the Ordinance
from the superior , Courts, (b) the appointment of Presiding Officers of the Courts set up under the
Ordinance, is solely within the discretion of the Executive, and (c) that the Courts set up under the
Ordinance are not independent of Executives in their functioning; and
(viii)That acting in aid of civil power does not contemplate displacing or supplanting of the existing
system/structure.
Mr. Iqbal Hyder, the petitioner in C.P. No.38 of 1998 adopted a somewhat different line of arguments. He
contended that in the backdrop of the prevailing law and order situation in Karachi, and the failure of the
successive .Governments of Sindh, to provide security and protection to the general population in
Karachi, against terrorists and law breakers, the setting up -of Military Courts in Karachi to try the
persons accused of scheduled offences was the need of the hour but in order to bring the Ordinance in
accordance with the concept of independence of Judiciary and to give effect to the guarantees provided in
the Constitution, the orders/judgments of the Courts set up under the Ordinance be made appealable
before this Court as the jurisdiction of High Courts is barred in such matters both under Articles 245(3)
and 199(3) of the Constitution.
In reply to the above submissions of petitioners, the learned AttorneyGeneral has contended as follows:-
(i) That the Ordinance has been promulgated by the Federal Government competently within the
mandate of the Constitution;
(ii) That the invocation of Article 245 of the Constitution and promulgation of the Ordinance by the
Federal Government providing for convening of Military Courts did not contravene any of the guarantees
provided by Articles 4, 9 and 25 of the Constitution;
(iii) That the Ordinance neither violated the provisions of Articles 175, 202 and 203 of the
Constitution nor it is outside the scope and Scheme of the Constitution.
(iv) That the Ordinance is in the nature of a comprehensive direction/law defining the limits of the
exercise of power by the Armed Forces while acting in aid of civil power, within the parameters of
Article 245 of the Constitution and, therefore, same is immune from challenge as provided under Article
245(3) (ibid);
That the Courts convened under the Ordinance read with the provisions of Pakistan Army Act, are not
Courts within the meaning of Article 175 of the Constitution and, therefore, the ratio laid down by this
Court in the case of Mehram Ali v. Federation PLD 1998 SC 1445 is not applicable in the present case;
(vi) That no person can claim a vested right in respect of forum of trial or the procedure, specifically
when the procedure prescribed under the Army Act for holding of the trial has been held by this Court in
the case of F.B.Ali v. Federation PLD 1975 SC 506 to be in accordance with the principles of a fair trial;
(vii) That Armed Forces While acting in aid of civil power under Article 245 of the Constitution are not
denuded of the power, function and authority lawfully conferred on them under the Army Act and
convening of Courts for, trial of offenders under the Ordinance is only incidental and ancillary power
available to them;
(viii) That .the provisions of the Ordinance do not militate against the principle of trichotomy of power
enshrined in the Constitution;
(ix) That the present cases do not raise any question of public importance with reference to
enforcement of fundamental rights of the petitioners which represent political parties;
(x) That the petitions are not maintainable in view of the provisions of Articles 8(3) and 148(3) of the
Constitution.
The learned Advocate-General, Sindh, while adopting the arguments of learned Attorney-General
contended that the cases relating to terrorist activities pending in the ordinary Courts and the A.T.A.
Courts in Karachi, are not making any progress as the witnesses in these cases are not willing to depose
against the accused due to fear of terrorists. The learned Advocate-General, Sindh also mentioned the
number of case pending in A.T.A. Courts at Karachi. The learned Advocate-General further contended
that sometimes even the prosecution and the Presiding Officers of the Courts also avoid proceeding with
these cases on account of fear of terrorists. The learned Advocate-General, Sindh, also referred to the
number of appeals arising from A.T.A. Courts which are pending before the High Court of Sindh for
quite sometime. On these premixes the learned Advocate-General, Sindh, argued that the Government has
not option but to constitute Military Courts of trial of the accused involved in terrorist activities.
6. Following cases were cited at the bar during the course of arguments in support of the respective
contentions of the parties:-
(1) PLD 1984 Lah. 69 (Iftikhar Ahmed v. Muslim Commercial Bank Ltd.);
(2) Mehram Ali etc. v. The State (PLD 1998 SC 1445);
(3) Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341);
(4) Amin Gul v. State (PLD 1977 Lah. 205);
(5) The State v. Zia-ur-Rehman (PLD 1973 SC 49);
(6) F.B. Ali v. State (PLD 1975 SC 506);
(7) Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324);
(8) Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lah. 206);
(9) Muhammad Umar Khan v. The Crown (PLD 1953 Lah. 528);
(10) Muhammad Latif v. Muhammad Hafeez (PLD 1954 FC 184);
(11) Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105);
(12) AI-Jehad Trust v. Federtion of Pakistan (PLD 1996 SC 324);
(13) Nothern Pipleline v. Marathon Pipleline Co. (458 US 50);
(14) Duncan v. Kahanamoku (327 US 304-358);
(15) Jams F.O. Callahan v. J.J.Parker (395 US 258);
(16) Niaz Ahmad Khan v. Province of Sindh (PLD 1977 Kar. 604);
(17) A.K.Goplalan v. State of Madras (AIR 1950 SC 27);
(18) Maneka Gandhi v. Union of India (AIR 1978 SC 597);
(19) Sint. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299);
(20) Khalid Malik v. Federation of Pakistan (PLD 1991 Kar. 1);
(21) Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66);
(22) Coke v. Charles A Vogeler Company (1901) AC 102);
(23) Van Diemen's Land Company v. Table Cape Marine Board ((1906) AC 92);
(24) Bugga v. The King-Emperor (1920) 47 IA 128;
(25) Rex v. Alen ((1921) 2 IR 241);
(26) Clifford and O'sullivan ((1921) 2 AC 570);
(27) Ex parte Milligan (18 Law Ed. 281.
I will revert to some of these cases during the course of discussion wherever necessary.
7. We are not oblivious of disturbed law and order situation and the ongoing terrorists activities within the
country and specially in the city of Karachi, which has taken its toll both in terms of human lives as well
as disruption of economic activities. We are also not unmindful of the fact that no progress on the
economic front is possible without restoration of peace which is essential to restore the confidence of the
local as well as foreign entrepreneur and investors. The question which, however, arises for consideration
here is, whether the solution to the problems highlighted by the learned Attorney-General and the learned
Advocate-General, Sindh, has to be found within the framework of Constitution or the gravity and
extraordinary nature of the -situation justified extraordinary steps in deviation of the Constitutional
provisions. The answer to the above question is not difficult to find. A Government elected through a
popular vote under a Constitution must not and cannot deviate from a Constitutional path. Howsoever,
grave the situation may arise, the solution to it has to be found within the provisions of the Constitution.
To be fair .to the learned Attorney-General, except for once making a brief reference to the doctrine of
necessity during his arguments, the learned Attorney-General throughout contended that the steps taken
by the Government in setting up Military Courts for trial of civilians were within the framework of the
Constitution. The thrust of the arguments of the learned Attorney-General was that the Federal
Government was competent to call the Armed Forces in aid of the Civil power if a situation had arisen
which was beyond the control of civil administration. According to learned Attorney-General, the setting
up of the Military Courts in Karachi Division in the backdrop of prevailing law and order situation and
the terrorist activities there, for trial of the persons accused of commotion and the scheduled offences was,
therefore, meant to support and revamp the existing legal/judicial system. The fate of these cases,
therefore, depends on the true and correct interpretation and understanding of the scope of Article 245 of
the Constitution which reads as follows:-
245. (1)The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against
external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do
so.
(2) The validity of any direction issued by the Federal Government under clause (1) shall not be
called in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which
the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article
245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any
proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil
power.
(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the
Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for
the period during which the Armed Forces are so acting."
Article 245 as originally enacted in the Constitution consisted of only its clause (I), clauses (2) to (4) were
added in Article 245 subsequently by Act No. XXIII of 1977. The legislative background of addition of
clauses (2) to (4) in Article 245 of the Constitution may be referred here as it has an important bearing in
the understanding of the scope of Article 245.
8. In the aftermath of general elections of 1977 in the country, large scale demonstrations and agitations
broke out throughout the country. These demonstrations were organised by the then opposition parties
jointly under the banner of .Pakistan National Alliance (P.N.A.), to protest against the alleged rigging and
manipulations in the election process by the party in power. .The P.N.A. demanded scrapping of the
results of general elections and re-poll in the country which was denied by Ruling Party. These protests
and demonstrations which were peaceful in the beginning became violent with the passage of time
resulting in substantial loss of properties and human lives. The Provincial Governments were unable to
control the situation arising from these demonstrations and protests. In this backdrop, the Parliament
passed Constitution (Seventh Amendment) Act XXIII of 1977, which inserted amongst other clauses (2)
to (4) after clause (1) in Article 245 of the Constitution and it was made effective from 21-4-1977. On the
day Act XXIII of 1977 came into L effect, the Pakistan Army (Amendment) Ordinance XVIII of 1977
was promulgated which was later replaced by Pakistan Army (Amendment) Act X of 197'; . The
amendments introduced in Pakistan Army Act through, Act X of 1977 amongst other added paragraph
(iii) after paragraph (ii) in clause (d) and f; clause (dd) in section 2(i) of the Army Act. As a result of these
amendments made in the Army Act persons not otherwise subject to Army Act, who were `'° accused of
offences mentioned in paragraph (iii) of clause (d) and paragraphs (i) ,: to (v) of clause (dd) of subsection
(1) of section 2 of the Army Act became ':: exclusively triable by a Court Martial constituted under the
Army Act.
It is not disputed by the learned Attorney-General and is also evident from the preamble of the Ordinance
that the Armed Forces have been called in aid of the civil power under Article 245 of the Constitution for
the purposes of security, maintenance of law and order and restoration of peace. The petitioners have not
questioned the authority of the Federal Government to call the Armed Forces in aid of civil power for the
purposes of security, maintenance of law and order and restoration of peace under Article 245 of the
Constitution by enacting a legislation in this regard. Their objection is confined only to the setting up of
the Military Courts by the Armed Forces for trial of civilians in respect of offences not connected with
Armed Forces, under the Ordinance. The controversy, therefore, is in a very narrow compass, namely,
whether the function assigned to the Armed Forces by the Federal Government to hold trials of civilian
population by setting up Military Courts for offences not connected with Armed Forces, under the
Ordinance, is legally and constitutionally sustainable.
9. Before taking up the main controversy in these cases for consideration,

it will be appropriate to deal first with the contentions of learned Attorney-General regarding
maintainability of the above petitions under Article 184(3) of the Constitution.
The first objection of learned Attorney-General regarding maintainability of these petitions is that no
question of public importance with reference to enforcement of any fundamental rights of the petitioners,
who represent political parties, arises in these cases.
10. The expression "public importance" was interpreted by this Court in the case of Manzoor Illahi v.
Federation of Pakistan (PLD 1975 SC 66), as follow:--
"Now what is meant by a question of public importance The term 'public' is invariably employed in
contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to,
or belonging to, the people; relating to a nation. State, or community. In other words, it refers to
something which is to be shared or participated to or enjoyed by the public at large. and is not, limited or
restricted to any particular class of the community. As observed by the Judicial Committee of the Privy
Council in Hamabai Framiee Petit v. Secretary of State for -India-in-Council (ILR 39 Bom 279) while
construing the words public purpose such a phrase whatever else it may mean must include a purpose that
is an object or aim in which the general interest of the community, as opposed to the particular interest of
individuals, is directly and vitally concerned This definition appears to the to be equally applicable to the
phrase public importance.
The learned Attorney-General is clearly right in saying that a case does not involve a question of public
importance merely because it concerns the arrest and detention of an important person like a member of
Parliament, In order to acquire public importance the case must obviously raise a question which is of
interest to or affects the whole body of people, or an entire community. In other words, the case must be
such as gives rise to questions affecting the legal rights or liabilities of the public or the community at
large even though the individual, who is the subject matter of the case may be of no particular
consequence Seen in this light there can be little doubt as to the public importance of the questions arising
in this case. I think I will not be far wrong in saving that it is not often that a single case raises so many
questions of public importance touching the liberty of the citizen. In all, systems of law which cherish
individual freedom and liberty which provide Constitutional safeguards and guarantees in this behalf any
invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and
availability of those safeguards, must be regarded as a matter of great public importance.”
The above observations in Manzoor Illahi's case were referred with approval in the case of Benazir
Bhutto v. Federation of Pakistan (PLD 1988 SC . 614) as under:-
"Lastly is the consideration of the connotation of the expression public importance which is tagged to the
enforcement of the Fundamental Rights as a pre-condition of the exercise of the power. This should not
be understood in a limited sense, but in the gamut of the Constitutional rights of freedoms and liberties,
their protection and invasion of such freedoms in manner which raises a serious question regarding their
enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's
case touching his human rights of liberty and freedom, or of a class or a group of persons as they would
also be legitimately covered by this expression. Reference in this connection can be made to the
observations of Anwarul Haq, J., as he then was, in Manzoor Elahi v. Federation of Pakistan (PLD 1975
SC 66 at page 145), as under:-
The learned Attorney-General is clearly right in saying that a case does not involve a question of public
importance merely because it concerns the arrest and detention of an important person like a Member of
Parliament. In order to acquire public importance, the case must obviously raise a question which is of
interest to, or affects, the whole be such as gives rise to questions affecting the legal rights or liabilities of
the public or the community at large, even though the individual, who is the subject-matter of the case,
may be of no particular consequence.
Seen in this light, there can be little doubt as to the public importance of the questions arising in this case.
I think I will not be far wrong in saying that it is not often that a single case raises so many questions of
public importance touching the liberty of the citizen. In all systems of law which cherish individual
freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any
invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and
availability of those safeguards, must be regarded as a matter of great public importance. "
In Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632), 'after quoting the
abovementioned passages from Manzoor Illahi v. Federation of Pakistan and Benazir Bhutto v.
Federation of Pakistan (supra), with approval, the following further observations were made by one of us
(Saiduzzaman Siddiqui, J.) while laying down the best in determining the element of "public importance"
in a case arising under Article 184(3) of the Constitution:--
"From above-quoted passages, it is quite clear that whether a particular case involved the element of
'public importance' is a question which is to be determined by this Court with reference to the facts and
circumstances of each case. There is no hard and fast rule that an individual grievance can never be
treated as a matter involving question of public importance. Similarly it cannot be said that a case brought
by a large number of people should always be considered as a case of public importance' because a large
body of persons is interested in the case: The public importance of a case is determined as observed by
this Court in Manzoor Ellahi's case (supra), by decision on questions affecting the legal rights and
liberties of the people at large, even though the individual who may have brought the matter before the
Court is of no significance. Similarly, it was observed in Benazir Bhutto's case (supra), that public
importance should be viewed with reference of freedom and liberties guaranteed under Constitution, their
protection and invasion of these rights in a manner which raises a serious question regarding their
enforcement, irrespective of the fact, whether such infraction of right, freedom or liberty is alleged by an
individual or a group of individuals."
10. In the light of the above stated legal position, I now proceed to examine whether any question of
public importance arises in these cases. The petitioners in the above cases have alleged that as a result of
establishment of Military Courts for trial of civilian population and promulgation of Ordinance XII of
1998, the right of the people in general to be tried by the Ordinary Courts established by law for trial of
civil offences has been taken away which is guaranteed under the Constitution. It is also alleged that the
creation of Military Courts for trial of civil population militates against the independence of Judiciary.
The above questions raised in the petitions not only concern the entire civil population of the country but
they also affect the rights and civil liberties of the entire population guaranteed under the Constitution. I
am, therefore, of the view that the questions raised in these petitions are of great public importance.
The second limb of this argument of learned Attorney-General is that no question of enforcement of any
of the Fundamental Rights of the petitioners arises in these cases. To maintain a petition under Article
184(3) of the Constitution, it is not necessary that infraction of any fundamental right of the petitioner/
individual must be established. The question of infringement of the fundamental right of the individual is
relevant in proceedings under Article 199 of the Constitution with reference to his locus standi to
maintain the proceeding- In contradistinction to the proceedings under Article 199 of the Constitution, the
question of locus standi of the petitioner is hardly of any significance in a petition filed under Article
184(3) of the Constitution. The
stress in proceedings under Article 184(3) of the Constitution is more on the "public importance" of the
question raised in the proceedings. Therefore, sometimes a complaint regarding violation of the
fundamental right of an individual may give rise to a question which may affect the entire community or
the whole population, thus making it a case fit for cognizance under Article 184(3) of the Constitution
while in another case the violation of the fundamental rights of a large number of people may not affect the
whole community or the entire population thereby rendering the question not fit for adjudication under
Article 184(3) of the Constitution. The condition . that the petition filed under Article 184(3) of the
Constitution must relate to the enforcement of any of the fundamental rights, does not necessarily mean or
refer to the enforcement of the fundamental right of the petitioner or an individual who moves the Court
under Article 184(3) of the Constitution. Reference to enforcement of fundamental rights in Article 184(3)
(ibid), implies a fundamental right in enforcement whereof the whole community or public-at-large is
interested.
In the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), a ten-member Bench of this Court
while considering the scope of proceedings under Article 184(3) and comparing it with the proceedings
under Article 199 of the Constitution observed as follows:--
"82. Another very important and distinguishing feature of these cases is that they were not filed under
Article 199 of the Constitution which applied exclusively to the proceedings brought before the High Court.
These cases were filed under Article 184(3) of the Constitution which confers exclusive jurisdiction on this
Court. The proceedings under Article 199 of the Constitution before the High Court are subject to various
constraints mentioned in the said Article. However, the proceedings before this Court under Article 184(3)
of the Constitution differ in various ways from the proceedings before the High Court under Article 199 of
the Constitution. For instance, a person may be non-suited by the High Court in proceedings under Article
199 of the Constitution on the ground that he has no personal grievance, and therefore, he is not an
aggrieved person. A petitioner before this Court under Article 184(3) of the Constitution, may not have a
personal grievance in the case, but if he satisfies the Court that question raised by him is of public
importance and it relates to enforcement of fundamental rights guaranteed under the Constitution of a
reasonably large section of people, he can successfully maintain the petition. The proceedings before this
Court under Article 184(3) of the Constitution are in the nature of a public interest litigation in
contradistinction to the proceeding before the High Court where the litigant seeks redress of his personal
grievance and injury. Therefore, the scope and nature of proceedings, before this Court under Article
184(3) of the Constitution differ in many ways from the proceedings before the High Court under Article
199 of the Constitution. The trappings and constraints provided in Article 199 of the Constitution on the
exercise of power by the High Court, are therefore, not applicable to this Court under Article 184(3) of the
Constitution. "
In the case before us, the petitioners have alleged that their right of access to an independent and impartial
civilian judicial forum for adjudication of their right, which is guaranteed under the Constitution, has been
taken away on account of establishment of Military Courts. It is also contended that establishment of
Military Courts militates against the concept of independence of Judiciary which is one of the essential
features of the Constitution. "Right of access to justice to all" has been held to be a fundamental right
guaranteed under Article 9 of the Constitution in the case of Sharaf Faridi v. Islamic Republic of Pakistan
(PLD 1989 Karachi 404). This principle was reiterated by this Court in the case of Government of
Balochistan v. Azizullah Memon (PLD 1993 SC 341) ad it was held that "right of access of justice to all"
means "that every citizen should have equal opportunity and right to approach the Courts without any
discrimination". Following the dictum laid down in the cases of Sharaf Faridi and Azizuliah Memon, this
Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), observed as follows:--
"18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is
a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard,
reference may be made to the following observation:--
'The right of access to justice to all is a well-recognised inviolable right enshrined in Article 9 of the
Constitution. This .right is equally found in the doctrine of due process of law. The right of access to justice
includes the right to be treated according to law, the right to have a fair and proper trial and a right to have
an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in
Constitution of United States, Second Edition, Vol.II at page 1709 where the term 'due process of law' has
been summarized.'
The above view has been affirmed by this Court in the case of Government of Balochistan through
Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341).
19. I am inclined to agree with the above view as I have already observed hereinabove that without
having an independent Judiciary, the Fundamental Rights enshrined in our Constitution will be meaningless
and will have no efficacy or beneficial value to the public-at-large."
The above observations made in Sharaf Faridi v. Islamic Republic of Pakistan. Government of Balochistan
v. Azizullah Memon and Al-Jehad Trust v. Federation of Pakistan (supra), were quoted. with approval in
the case of Malik Asad Ali v,, Federation of Pakistan (PLD 1998 SC 161) decided by a tenmember Bench
of this Court and it was. finally observed "In our view right of access to impartial and independent
Court/Tribunal is a fundamental right of every citizen. The existence of this right is dependent on the
independence of Judiciary".
11. Examined in the light of the observations made in the abovementioned cases, I am of the view that the
questions raised in these petitions, that the civil population has a right to be tried by an independent and
impartial Civil Court established under the authority of law, has been negated by the establishment of
Military Courts for trial of civilian population and that the establishment of Military Courts militates
against the concept of independence of Judiciary, are not only questions of great public importance but they
also relate to the enforcement of fundamental rights of the entire civil population guaranteed under the
Constitution. 1, accordingly, hold that the above petitions are maintainable under section 184(3) of the
Constitution.
The next objection of the learned Attorney-General to the maintainability of these petitions is, that in these
petitions the validity of the Ordinance has been challenged which is protected under Article 8(3) of the
Constitution. It is further contended by the learned Attorney-General that the steps so far taken by the
Federal Government are in discharge of its Constitutional obligation under Article 148(3) of the
Constitution which cannot be called in question in any Court.
In so far the later part of the above argument of learned Attorney General, that the Federal Government
having acted in discharge of its Constitutional obligation under Article 148(3) ibid, its actions could not be
called in question before any Court is concerned, we have neither been pointed out any provision in the
Constitution by the learned Attorney-General nor we ourselves are able to discover anything in the
language of Article 148 or in any other Article in the Constitution which provided such immunity to the
actions of the Federal Government. It the learned Attorney-General is relying on clause (3) of Article 245
of the Constitution which suspends the jurisdiction of High Court under Article 199 of the Constitution for
such period the Armed Forces Act in aid of civil power, the provision clearly is not attracted to proceedings
under Article 184(3) of the Constitution before this Court. To deal with the first part of the above
contention of learned Attorney-General, it is necessary to consider the scope of Article 8 of the
Constitution, which reads 'as follows:-
"8: (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the
rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law
made in contravention of this clause shall, to the extent of such contravention, be void.
(3) . The provisions of this Article shall not apply to-
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are
charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their
duties or the maintenance of discipline among them; or
(b) any of the--
(i) laws specified in the First Schedule as in force immediately before the commencing day or as
amended by any of the laws specified in that Schedule;
(ii) other laws specified in. Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law ok provision is
inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained to paragraph (b) of clause (3). within a period of two years
from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First
Schedule into conformity with the rights conferred by this Chapter.
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period
not exceeding six months.
Explanation.--If in respect of any law Majlis-e-Shoora (Parliament) is the appropriate Legislature, such
resolution shall be a resolution of the National Assembly.
(5) The right conferred by this Chapter shall not be suspended except as expressly provided by the
Constitution."
The contention of learned Attorney-General in substance is that the Ordinance enumerates the powers and
duties of the Armed Forces acting in aid of civil power as is evident from the preamble of the Ordinance. It
is, accordingly, argued by the learned Attorney-General that the Ordinance is a law relating to Armed
Forces which has been promulgated to ensure proper discharge of their duties while acting in aid of civil
power and as such even if its provisions are found to be to derogation of any of the rights conferred by
Chapter I of Part II of the Constitution, it cannot be questioned in view of the provisions of Article R(31 of
the Constitution.
Clause (1) of Article 8 declares all laws, customs or usages having the force of law void to the extent they
are inconsistent with the rights conferred by Chapter I (Articles 8 to 28) of Part II of the Constitution.
Clause (2) of Article 8 ibid, prohibits the State to enact any law which takes away or abridges the rights
conferred by Chapter I, Part II and further declares that any law made by the State in contravention of the
above prohibition will be void to the extent of such contravention. Sub-clause (a) of clause (3) of Article 8,
with which we are concerned here, is in the nature of a proviso or an exception to clauses (1) and (2) of
Article 8 (ibid). It provides that any law enacted to ensure the proper discharge of the duty or maintenance
of discipline amongst the members of the Armed Forces, a Police Force or any other force charged with the
duty of maintaining public order, will be out of the purview of Article 8 of the Constitution. It is well-
settled rule of interpretation that the proviso or an exception to the main enacting part is to be construed
strictly. Therefore, unless the case falls strictly within the letter and spirit of the proviso or exception, it will
be covered by the main enacting part. A careful reading of sub-clause (a) of clause (3) of Article 8 (ibid),
shows that in order to take a legislation out of the purview of clauses (1) and (2) of Article 8 of the
Constitution two conditions must be satisfied. Firstly, the legislation must relate to Armed Forces or a
police force or a force charged with the maintenance of public order and, secondly, the purpose of
legislation must be to ensure proper discharge of their duties or maintenance of discipline among them.
Here we are only concerned with interpretation of the word "duties" used in Article 8(3)(a) of- the
Constitution with reference to armed forces which have been called in aid of civil power. The word "duties"
in this context would mean duties which can be lawfully assigned to or discharged by the armed forces
either under the Constitution or under any law. There is no difficulty in holding that the Ordinance satisfies
the above first condition as the legalation relates to Armed Forces. However, the Ordinance fails to satisfy
the second condition mentioned in Article 8(3)(a) (ibid). The learned Attorney-General has relied on the
preamble of the Ordinance which states "whereas it is expedient to enumerate the powers and duties of the
Armed Forces acting in aid of civil power, under Article 245 of the Constitution of Pakistan for the purpose
of security, maintenance of law and order, and restoration of peace", in support of his contention that the
Ordinance also satisfies the second condition mentioned in Article 8(3)(a) (ibid). No doubt, the preamble of
the Ordinance does State that the object of legislation is to enumerate the powers and duties of armed forces
acting in aid of civil power for the purposes of security, maintenance of law and order, and restoration of
peace, but the preamble can neither restrict nor control the meaning of the enacting part of the Statute. If
the enacting part of the Statute goes beyond the preamble it is the enacting part which prevails and not the
preamble. The preamble of the Ordinance shows that the Armed Forces have been called in aid of civil
power under Article 245 of the Constitution for purposes of security, maintenance of law and order, and
restoration of peace. Now if we go to the enacting part of the Ordinance which consists of sections 1 to 14,
it shows that the Armed Forces have been vested with powers to convene Courts for trial of civilians
charged with the offences specified in the Ordinance, Can the provision in the Ordinance vesting the
Armed Forces with power to try civilians for offences nor connected with Armed Forces, be termed as a
law which ensures proper discharge of their duties? To answer this question, we must look to the Scheme
of the Constitution which is based on the principle of trichotomy of power, meaning thereby that the power
is divided between Executive, the Legislature and the Judiciary. Each of these three limbs of the State
enjoys complete independence in their own sphere. Since the Armed Forces admittedly are not part of the
judicature, the Ordinance vesting the Armed Forces with power to hold trial of civilians in respect of
offences which ,are not connected with Armed Forces, is not immune from scrutiny under Article 8(3)(a) of
the Constitution. The preliminary objection raised by the learned Attorney-General to the maintainability of
these petitions, accordingly, fails.
13. 1 now take up the main controversy arising in these petitions, whether setting up of Military Courts for
trial of civilians for offences not connected with the Armed Forces, is Constitutionally valid? As stated
above, our Constitution is based on the theory of trichotomy of power which makes the three limbs of the
State, the Legislature, the Executive and the Judiciary, independent of each other in their respective
spheres. Chapter I of Part VII of the Constitution deals with the judicature. The judicature according to
Article 175(1) of the Constitution, consists of the Supreme Court, a High Court for each Province and such
other Courts as may be established by law. The Courts created under Article 175(1) (ibid) exercise such
jurisdiction which is conferred on them either by the Constitution or by or under any law as provided in
Article 175(2) ibid. The judicature stands separated from the executive as provided in Article 175(3) of the
Constitution. Creation of Courts outside the control and supervision of Supreme Court or the High Courts,
therefore, not only militates against the independence of Judiciary but it also negates the principle of
trichotomy of power which is the basic feature of the Constitution.
14. Chapter 2 of Part XI (Articles 243 to 245) of the Constitution deals with the Armed Forces of Pakistan.
The command and control of Armed Forces vests with the Federal Government under Article 243 of the
Constitution and the President, who is declared to be the Supreme Commander of the Armed Forces, has
been given power to raise and maintain the Military, Naval and Air Forces of Pakistan and Reserve Forces
subject to law. The President is also authorized to grant commission in the Forces, besides appointing
Chairman Joint Chief of Staff Committee, the Chief of Army, Naval and Air Staff and determine their
salaries and allowances. Article 244 provides for oath of every member of armed,, forces which is as
follows:-
"MEMBER OF THE ARMED FORCES
[Article 244]
(in the name of Allah, the most Beneficent, the most Merciful.)
I, -------------------------, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold
the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not
engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in
the Pakistan Army (or Navy or Air Force) as required by and under the law.,
[May Allah Almighty help and guide the (A'meen)."
Article 245 defines functions of Armed Forces. A careful study of Articles 243 to 245 of the Constitution
leaves no doubt that the Armed Forces are part of the executive authority of the State. It, therefore, follows
that Armed Forces cannot be assigned the function of Judiciary which is separated from the Executive as
envisaged by Article 175(3) of the Constitution.
15. The learned Attorney-General attempted to distinguish the establishment of Military Courts by
describing them as temporary in nature and `not falling within the purview of Courts established under
Article 175(1) of the Constitution. The argument is self-defeating. If the Military Courts, as contended by
the learned Attorney-General, are not established Courts as contemplated by Article 175(1) of the
Constitution, they cannot be conferred jurisdiction to try an accused which is part of the function of
Judiciary. To hold trial of a person accused of an offence is undoubtedly a judicial function which cannot
be performed but by a Court which i0 a part of the judicature. The concept of establishment of temporary
Courts or Tribunals to perform judicial functions outside the hierarchy of judicature canvassed by the
learned Attorney General is not permissible in our Constitutional Scheme. The learned Attorney General,
however, mentioned Federal Shariat Court, Service Tribunals and Election Tribunals as some of the species
of the Courts/Tribunals performing judicial functions outside the hierarchy and free from the control and
supervision of High Courts and Supreme Court. The above Courts/Tribunals referred by the learned
Attorney-General are firstly, the creature of the Constitution and not established under a sub-Constitutional
legislation. Secondly, from the judgments of each one of these Courts, the matter can be brought before the
superior Judiciary in one form or the other. For instance from the order of Service Tribunal an appeal lies to
the Supreme Court of .Pakistan under Article 212(3) of the Constitution. The judgments and orders passed
by Federal Shariat Court are appealable before Supreme Court under Article 203-F of the Constitution.
Similarly, from the order/judgment of the Election Tribunal an appeal is provided to the Supreme Court
under section 67(3) of Representation of the People Act, 1976. Therefore, no parallel can be drawn between
the Military Courts, which have been conferred exclusive jurisdiction and their judgments are made
immune from attack before the superior Courts, under the Ordinance, and the Federal Shariat Court, the
Service Tribunal and the Election Tribunal established under the authority of the Constitution and whose
judgments are not immune from scrutiny before the Supreme Court. The question relating to establishment
of Courts/Tribunals outside the supervision and control of superior Judiciary was considered at length in a
recent decision of this Court reported as Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). After
exhaustive review of the Constitutional provisions and the case-law on the subject, the following
observations were made:-
" 11. From the above case-law the following legal position obtaining in Pakistan emerges:
(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the
Supreme Court, a High Court for each Province and such other Courts as may be established by law.
(ii) That the words "such other Courts as may be established by law" employed in clause (1) of Article
175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the
above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court
(Chapter 3-A of the Constitution). Tribunals under Article 212, Election Tribunals (Article 225). It must
follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the
Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the
Constitution. .
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and
control over the subordinate Judiciary vests in High Courts, which is exclusive in nature, comprehensive in
extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the
Executive (which is founded on the Islamic judicial System) in order to ensure independence of Judiciary
and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of
the High Court and or the Supreme Court does not fit in within .the judicial framework of the Constitution:
(vi) That the right of 'access to justice to all' is a fundamental right, which right cannot be exercised in
the absence of an independent Judiciary providing impartial, fair and just adjudicatory framework i.e.
judicial hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being
under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly
meet the mandatory requirement of the Constitution.
(vii) That the independence of Judiciary is inextricably linked and connected with the process of
appointment of Judges and the security of their tenure and other terms and conditions."
Lengthy arguments were, addressed at the bar on the interpretation of the expression 'acting in aid of civil
power' used in Article 245 of the Constitution. The learned counsel for the petitioners jointly contended that
the Armed Forces when called to act in aid of civil power, cannot act in supersession or in substitution of
the established Civil Authorities. The role of Armed Forces in such circumstances. should he one of aiding,
supporting or revamping the civil authority which has sought for aid of the Armed Forces. The learned
Attorney-General on the other hand, though did not dispute that Armed Forces when called to act in aid of
civil power could not act in supersession or substitution of civil authority, very .vehemently argued that
establishment of Military Courts is a temporary phenomenon necessitated by the grave situation created by
the terrorists in the city of Karachi and, therefore, establishment of these Courts should not he treated as a
displacement or substitution of normal judicial process which will stand revived as soon as the present
situation is brought under control On these premises, the learned Attorney-General forcefully argued that
the setting up of Military Courts in Karachi be viewed in this perspective and treated as a step to support or
revamp the judicial system which had lost its effectiveness in the prevailing circumstances. We fully share
the anxiety of - the Government expressed by the learned Attorney-General to deal, effectively, quickly and
firmly with the terrorists and their activities in the Province of Sindh and specially in Karachi, and to this
end in view, we suggested a scheme to improve the working of the existing judicial system within the
framework of the Constitution, making it a part of our short order in these cases. However, as earlier
pointed out in this judgment, a Government established under the Constitution must not deviate from a
Constitutional path and must find solution to all its problems within the framework of the Constitution.
Therefore, to justify the establishment of Military Courts .support must he found from the provisions
contained in the Constitution.
16. It is not for the first time that the Government has invoked Article 245 of the Constitution to meet a
threatening law and order situation beyond the control of civil administration. In earlier part of this
judgment, I briefly referred to the law and order situation created as a result of agitation by the then
opposition parties in the aftermath of the general elections held in the country in 1977. The then Provincial
Governments of Sindh and Punjab were unable to control thc, lain and order situation created as result of
these agitations by political parties and, therefore, Summary Military, Courts were set up to deal with the
agitators in purported exercise of power under Article 245 of the Constitution by making suitable
amendments in the Pakistan Army Act, 1952. This action of the Government was challenged before the
High Courts of Lahore and Karachi respectively under Article 199 of the Constitution The judgments of
Lahore and Karachi High Courts in these petitions are reported as Darwesh M. Arbey v. Federation of
Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed Khan v. Province of Sindh (PLD 1977 Karachi 604)
respectively. Darwesh M. Arbey's case was decided by a learned Bench of Lahore High Court consisting of
Aslam Riaz Hussain, C.J., Karam Ellahi Chohan, Shameem Hussain Kadri, Zakiuddin Pal and Javid Iqbal,
JJ. Aslam Riaz Hussain, C.J. recorded the leading opinion in the case, while Karam Ellahi Chohan,
Shameem Hussain Kadri and Zakiuddin Pal, JJ. also recorded their separate concurring notes. Aslam Riaz
Hussian, C.J. (as he then was) in his leading judgment while considering the amendment in Pakistan Army
Act, 1952 and constitutionality of Summary Military Courts set up thereunder, observed as follows:-
"In this connection the most pertinent enactment is Act X of 1977 whereby some of the provisions of the
Pakistan Army Act, 1952, have been amended. The relevant portions have already been reproduced to para.
13. Army Act, 1952, was amended so as to add a new paragraph (iii) to clause (d).. The effect of this
amendment is that the entire civil population of the Lahore District which was previously not subject to the
Jurisdiction of the Pakistan Army Act, has been subject thereto and can now be tried under the Army Act
for a large number of offences under the Pakistan Penal Code and other Penal Acts, mentioned in that
...paragraph.
By another amendment in the same Act. Vide section 4, exclusive jurisdiction has been conferred on Courts
Martial, to try, convict and.; sentence, the civilians of Lahore District for the above-noted offences. As a
result of these two amendments, the ordinary Criminal Courts of Lahore no longer have the jurisdiction to
try the civilians or the civil population of the Lahore District for such offences unless, of course, any
particular case is transferred to them by an authorised Army Officer in his arbitrary discretion.
It could be forcefully contended that such sweeping amendments. bringing the entire civil population of the
Province (or any parts thereof selected by the relevant Chief Ministers, in their arbitrary discretion, within
the ambit of the Pakistan Army Act and making it (the civil population) subject to its provisions is totally
against object and reasons for which that Act was enacted. The Pakistan Army Act is primarily meant for
maintaining the internal discipline of the personnel of the Armed Forces or the civilian directly connected
with them, e.g., camp fellows etc. No doubt some categories of civilians who were not previously subject to
the Army Act were made subject to it by an earlier amendment whereby clause (d) with paragraphs (i) and
(ii) were added to section 2(1) of the said Act, i.e., persons who seduce or attempt to seduce any person
subject to the said Act (i.e. a member of the armed forces) from his duty or allegiance to the Government,
or any person accused of an offence in relation to any defence installation, ship or air crafts etc. Evidently
such person can be said to have some connection with the Armed Forces. But to make the entire civil
population of the country, or a province or any part thereof, subject to the Pakistan Army Act and triable
by. Courts Martial, may be termed as a fraud upon the Statute.
Even if this aspect of the matter is ignored we feel that it is sufficient to note, for the purpose of the
question under consideration, that no nexus whatsoever has been provided by the amendment in question
between the offences made exclusively triable by the Courts-Martial by virtue of this amendment and the
object for which the Armed Forces have been called in the District of Lahore, i.e. to restore or maintain
security and. law and order. The result is that the Armed Forces are now trying civilians for cases, like the
murder of a nurse named Ghazala by her paramour and other similar cases with which they had no concert,
whatsoever. Moreover, even under Common Law of England, when the Armed Forces are called in (under
the said law) to quell a disturbance, to put down an insurrection or to control violence, they are given
powers to try, convict and sentence offenders only when law and order situation has deteriorated to such an
extent that the ordinary Courts are unable to function. But in the present case when the Courts were
admittedly open and functioning without any hindrance from any section of the population, the Armed
Forces have, as a result of this enactment (Act X of 1977) been placed in a position where Courts Martial
set up by them have superseded the ordinary Criminal Courts. The mere fact that an army officer authorised
in this behalf can transfer a case to the ordinary Court in his discretion, does not improve the status of the
ordinary Court, but, in fact, goes to show that they have been subordinated to the discretion of such an army
officer. It is, thus, obvious that instead of acting in aid of the civil power the, Armed Forces are acting in
supersession and displacement of the same.”
Karam Ellahi Chouhan, J. (as he then was) in his concurring opinion while examining the constitutionality
of the setting up of Summary Military Courts for trial of civilian population, observed as follows:-
"11. It was next contended by the learned Attorney-General that a person had no vested right of being tried
under a particular procedure or under a particular law or by a particular forum and, therefore, he cannot
legitimately take any exception, for instance, in the present context to his trial by Courts-martial under the
Army Act instead of trial by Civil Courts. Instances were not lacking where various special tribunals were
constituted for different offences and the same were held as having been lawfully constituted. In Article
175 (1) it is written that there shall be a Supreme Court of Pakistan. a High Court for each Province and
such other Courts as may be established by law- In this state of law, if the Parliament enacted the Pakistan
Army (Amendment? Act X of 1977 providing for trial of offenders, committing offences cited therein, in
the area where Armed Forces had been called in aid of civil power, i.e. Martial Law are, by Courts-martial,
under the Pakistan Army Act instead of Civil Courts, there was nothing unconstitutional or illegal in that
Act. In my opinion, general power of the Parliament to establish special Tribunals or Courts may
straightaway be conceded but the point in the instant case, however, is different. Here the matter is not to be
approached from the point of view of any vested right of trial under any particular forum, but from the
point of view of the competency of the concerned Tribunal itself to try the offender. If the Armed Forces,
when they are called in aid of civil power in any particular area, are themselves unqualified to be bestowed
any judicial power, e.g. of the kind in dispute here, under Article 245, then the defect and infirmity lies in
them and at that end and place and not anywhere else. The aforesaid infirmity or lack of competency cannot
he cured by invoking the concept of absence of vested right of an offender in any particular procedure. The
correct approach is to see whether despite the power of Parliament to constitute Special Tribunals and
Courts. can a Court Martial be constituted as a Court of trial for offenders for even such ordinary civil
offences which are not connected with the disturbance of the law and order situation in the area where the
Army was called simply in aid of civil power and not for any purpose beyond that. Since the scope and
sphere of action of Army in this exercise is strictly limited to aiding the civil power it is this infirmity
which disqualifies it to act in supersession of the Civil Courts and even an Act of Parliament will not enable
them to perform such judicial functions unless scope of Article 245 is first suitably amended for this
purpose " . .
Shameetn Hussian Kadri, J. (as he then' was) while examining the scope of Article 245 of the Constitution
in his separate opinion, observed as under
"Article 245 of the Constitution confers two duties on the Armed Forces of Pakistan, namely, to defend
Pakistan against external aggression or threat of war, and, subject to law, act to aid of civil power, when
called upon to do so. While acting in defence of the country on the direction of the Central Government the
will of the Commander will prevail in the occupied territories, once such direction is issued. But when they
are called upon to act in aid of civil power. they have to act subject to law and not according to the will of
the Commander. Islamic history will show that when Commanders were deputed for 'Ghazvat' by the Holy
Prophet, the Great General, they were directed 'do not destroy crops and gardens, do not kill old men,
women and children, do not destroy the places of worship of non-Muslims. Our Army has to look to the
conduct and performance of the renowned Muslim Generals instead of looking towards Field Martial
Montgomery, Romel, Churchill and others. The other function of the Army is to respond to the call when
made to come in aid of civil power for any necessity of restoration of civil order and to meet the calamity,
flood, earthquake or national disaster of any kind."
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In my humble view the real test is as to whether factually the Armed Forces of Pakistan have acted in aid of
civil power in pursuance of Article 245. In fact there are two phrases, which are necessary for consideration
in Article 245 i.e. (i) Armed Forces are acting in aid of civil power and (ii) subject to law. Words 'in aid'
have been used to Article 190 of the Constitution which is reproduced as under:-
'All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court'
Can, it be said that the Executive and Judicial Authorities while acting in aid of Supreme Court supersede
or divest the Supreme Court of all the judicial powers or replace it by their own authority. The plain answer
is 'No'. The other phrase 'subject to law' clearly indicates that the Armed Forces have to function subject to
law and that is obviously in aid of civil power. Civil power is in contradistinction to Military power or
Army power, Civil power, I have already discussed has three limbs namely, executive power, legislative
power and judicial power. Can the Armed Forces acting in civil aid take upon themselves all these three
functions and can they style themselves as Martial Law Administrators. The answer is obviously in the
'Negative'."
Zakiuddin Pal, J. another learned Member of the Bench which decided Darvesh M. Arbey's case expressed
his view on the interpretation of Article 245 of the Constitution in these terms:-
"The learned counsel for the respondents have not been able to show any Article in the Constitution
indicating that when the Armed Forces are called to restore law and order, they are to act in rep]-cement
and supersession of civil authorities. Imposition of any type of Martial Law means suspension of ordinary
Courts and functioning of all civil authorities and temporary or otherwise rule by the Armed Forces of the
country or any part thereof through Military Tribunals, Legislative measures, directions etc. The provision
of Article 245 does not authorise the Armed Forces to act in such manner. If they replace or supersede the
civil power, issue directions or instructions to that, take over the ordinary administration of the area where
they have been called to render aid to the civil authority, take such measures and issue such directions
which aim at legislation and law making, then such activities of the Armed Forces would not be within the
scope of Article 245. The said Article authorises the Armed Forces to act in aid and not in supersession of
civil authority."
Niaz Ahmed Khan v. Province of Sindh (supra) was decided by a learned Bench of five Judges of High
Court of Sindh consisting of Abdul Kadir Shaikh, C.J., Agha Ali Hyder, Fakhruddin G. Ebrahim, 1.
Mahmud and Z.A. Channa, JJ. Abdul Kadir Sheikh. C.J., who wrote the leading opinion in that case after
considering the meaning and scope of 'Martial Law' held that there was no scope for a 'Martial Law' of the
type the Duke of Willington had in mind, which meant neither more nor less than the will of the General
who commanded the Army, under our Constitution. The learned C.J. then compared Article 245 of the
Constitution with Article 8 of the Constitution of United States of America and after referring to the
opinion of Chief Justice Hughes of American Supreme Court in Sterling v. Constantine (287 US 378)
observed as follows:
"Page 640:
I wholeheartedly adopt these principles of law as can be made applicable within the framework of our
Constitution, and would hold that if High Court finds that limits of executive authority have been
transgressed. And that in view of the character of the injury relief under clause (1) of Article 199 of the
Constitution is essential in order to afford protection to which the aggrieved party is entitled, I would
withhold it because the injury is attributable to an order passed by the Armed Forces acting in aid of Civil
Power in terms of clause (1) of Article 245, unless I find that specific bar or limitation in this behalf has
been placed in the other clauses of Article 199, or Article 245 or elsewhere in the Constitution itself. I have
already observed earlier that an embargo has been placed by the Constitution under Article 245 by the
words 'subject to law'. This excludes any scope of an invasion by the Armed Forces which may amount to
transgression of law and, therefore, no act on the part of the: Armed Forces would be justified in the garb of
aid to civil power unless it is shown to be under the law.
The quantum of aid to be given and the manner in which this assistance is to be rendered by the Armed
Forces, as ,a matter of Constitutional duty, depends upon the nature of the direction issued by the Federal
Government in this behalf. Therefore, no action in the garb of aid to civil power by the Armed Forces is
permissible, unless it is also within the four corners of the law."
The learned Chief Justice then proceeded to examine the validity of the amendments made in Article 245 of
the Constitution by Act XXIII of 1977 and after a lengthy discussion concluded as follows:
"The curtailment of Civil Courts' jurisdiction on the failure of civil power to operate due to domestic
disturbances beyond its control and the Militia called in to execute the laws of the land is an accepted
position in many Constitutional jurisdictions, and if the Constitution (Seventh Amendment) Act, 1977 has
just brought in what is otherwise accepted in the parallel systems of basic laws governing State and indeed
what finds place in certain Constitutions, I do not see how an argument is available that the Power of
superior Courts in Pakistan has been trampled upon by the newly-added clause (3) of Article 245 to the
extent that having regard to the general scheme of the Constitution providing for trichotomy of powers, the
Judiciary has been offended to the extent which is not permissible by the inherent juristic philosophy of the
Constitution. I have already held that the encroachment upon High Courts' jurisdiction under Article 199 is
a stopgap arrangement meant to last so long as the Armed Forces are acting in aid of civil power. I may add
here that by its very nature the curtailment of High Courts' jurisdiction cannot be of lasting nature, for, the
express words 'for the time being' signify beyond doubt that the Makers of the Constitution did net mean to
deprive High Court of its jurisdiction for any length of period which may be viewed as permanent or even
semi-permanent. It is also inherent in the scheme of Article 245 that the direction to call upon the Armed
Forces to aid civil power is to last for such period as is essential and the newly added clause (4) further
fortifies the view that the curtailment of High Court's jurisdiction is for short and temporary period as any
proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces
start acting in aid of civil power is to remain suspended for the period during which the Armed forces are so
acting. I am, therefore, clearly of the view that the provisions contained in the newly added clause (3) of
Article 245 by their very nature are of temporary character, and the Makers of the Constitution taking into
consideration the position that has prevailed under English Common Law considered it fit, in their wisdom
to insert these provisions in our Constitution.
I have already noticed in the earlier part of this judgment that use of Armed Forces in aid of civil power in
case of failure of the machinery of the civil power may be needed by Civil Courts themselves for the
purpose of performing their own functions, or otherwise the function of the Civil Court may itself be
threatened. I am, therefore, clearly of the view that the provisions contained in the newly added clauses of
Article 245 do not offend against the inherent framework of the Constitution. "
17. As a result of the above conclusions, the learned Chief Justice finally held that the petition filed in that
case to question the action of Government must remain suspended by virtue of clause (4) of Article 245 of
the Constitution for such period as the Armed Forces were acting in aid of civil power in terms of Article
245 (ibid), in Karachi Division and the Revenue District of Hyderabad. This view of the learned Chief
Justice was endorsed-by all the remaining four learned Judges of the Bench which decided Niaz Ahmed's
case. It is not necessary to examine the correctness or otherwise of the view expressed by the learned
Judges in Niaz Ahmed's case here, as the ratio laid in that case was that the petition filed before the High
Court of Karachi to question the action of Government must remain suspended till such time and Armed
Forces were acting in aid of civil power under Article 245 of the Constitution, which is not the point in
issue before us in these cases.
The learned Attorney-General has relied upon Ex parte D.F. Marais ((1902) AC 109); Tilonko v. The
Attorney-General of the Colony ,of Natal (1907) AC 93; Bugga v. The King-Emperor ((19201 47 IA 128);
Clifford and O'Sullivan ((1921) 2 AC 570); and Rex v. Alen ((1921) 2 IR 241), in support of his contention
that setting up of Military Courts for trial of terrorists and persons charged with offences under the
Ordinance was not open to any exception. To deal with the argument of learned Attorney-General, it is
necessary to examine these cases in some details.
The first noted case. Ex parte D.F. Marais was a petition for special leave to appeal before the Privy
Council from the judgment of Supreme Court of the Cape of Good Hope, South Africa, a British Colony.
The petitioner in this case was arrested by the Chief Constable of the town of Paarl under instructions From
Military Authorities and was later removed 300 miles away to the town of Beaufort West where he was
detained. He petitioned to the Supreme Court in ('ape Town alleging that his arrest was in violation of the
fundamental liberties secured to the subject of His Majesty. The Supreme Court declined the application
holding that Martial Law was proclaimed in both the Districts of Paarl and Beaufort West and, therefore,
Courts could not exercise jurisdiction over petitioner so long as Martial law lasted. Before the Privy
Council it was argued on behalf of the petitioner that regular Courts were open and functioning and,
therefore, the petitioner could not be tried by Military Authorities and case reported as Ex parte Milligan
((1866) 4 Wallace US Rep. 2, 137), wherein Supreme Court of US held that Congress could not invest
Military Commission with jurisdiction to try citizens for offences in a state not invaded and not in rebellion.
and in which Federal Courts were open was relied Reg. v. Nelson t 1866) Cockburn Rep p.69 and Reg. v.
Eyre (21866) Finalson rep.74 was also referred in support of the contention by the petitioner before the
Privy Council. The petition for leave to appeal was refused as follows:-
"The question was as fully argued before their Lordships by the learned counsel as it could have been
argued if leave to appeal had been given, and their Lordships did not think it right to suggest any doubt
upon the law by giving special leave to appeal where the circumstances render the law clear. They are of
opinion that where actual war is raging acts done by the Military Authorities are not justifiable by the
ordinary Tribunals, and that war in this case was actually raging, even if their Lordships did not take
judicial notice of it, is sufficiently evidenced by the facts disclosed by the petitioner's own petition and
affidavit.
Martial law had been proclaimed over the district in which the petitioner was arrested and the district to
which he was removed. The fact that for some purposes some tribunals had been permitted to pursue their
ordinary course is not conclusive that war was not raging. That, question came before the Privy Council as
long ago as the year 1830.
In Elphinstone v. Bedreechund (1) the Supreme Court at Bombay had given a large sum as damages against
the appellant for the tseizure of certain treasure at Poonah. During the time of the seizure no actual
hostilities were carried on in the immediate neighbourhood of Poonah, but the great battle of Kirkee had
been fought, and Poonah had been taken possession of by the British forces. The treasure was seized on
July 17,' 1818. At Poonah some Courts had been open from the previous February, and it was argued and
held by the Bombay Courts that it must be held to be a time of peace, and that the Military Authorities were
responsible in damages for seizure of the treasure.
to this the Attorney-General. Sir James Scarlett, replied that a military commander may allow the usual
Courts of justice that existed in the country before the invasion to continue their jurisdiction upon such
subjects as may not be reserved for the consideration of the commander; but his does not deprive the
commander of his power, or free the country from Military Government.
Lord Tenterden in giving judgment said: ' We think the proper character of the transaction was that of
hostile seizure made, if not flagrant, yet nondum cessante bello, regard being had both to the time, the
place, and the person, and, consequently, that the Municipal Court. had no jurisdiction to adjudge upon the
subject,' and the judgment was accordingly reversed.
The truth is that no doubt has ever existed that where war actually prevails the ordinary Courts have no
jurisdiction over. the action of the Military Authorities.
Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly
established.
It may often be a question whether a mere riot, or disturbance neither so serious nor so extensive as really
to amount to a war at all, has not been treated with an excessive severity, and whether the intervention of
the military force was necessary: but once let the fact of actual war be established, and there is a universal
consensus of opinion that the Civil Courts have no jurisdiction to call in question the propriety of the action
of Military Authorities."
Tilonko v. The Attorney-General of the Colony of Natal, the second mentioned case, was also a petition for
leave to appeal from the judgment of Military Court before the Privy Council. The petitioner in this case
was indicted before a Court Martial. He objected to his trial on the grounds that he was not a military man,
had not been taken in the field, had never taken up arms against the Government. that the state in the
country was not such as to justify his trial before a Court Martial and that the Civil Courts before whom he
had a right to be tried had in no way been interrupted in their functions and were then sitting. The Privy
Council repelled the argument as under:--
"The foundation upon which for the petitioner has proceeded is a totally inaccurate analogy between the
proceedings of 'a Military Court sitting under what is called the Mutiny Act, and proceedings which are not
constituted according to any system of law at all. It is by this time a very familiar observation that what is
called 'martial law‟ is no law at all. The notion that 'marital law' exists by reason of the proclamation an
expression which the learned counsel has more than once used---is an entire delusion. The right to
administer force against force in actual war does not depend upon the proclamation of martial law at all. It
depends upon the question whether there is war or not. If there is war, there is the right to repel force by
force, but it is found convenient and decorous, from time to time, to authorize what are called 'Courts' to
administer punishments, and to restrain by acts of repression the violence that is committed in time of war,
instead of leaving such punishment and repression to the casual action of persons acting without sufficient
consultation, or without sufficient order or regularity in the procedure in which things alleged to have been
done are proved. But to attempt to make these proceedings of so-called 'courts martial,' administering
summary justice under the supervision of a military commander, analogous to the regular proceedings of
Courts of justice is quite illusory. Such acts of justice are justified by necessity by the fact of actual war:
and that they are so justified under the circumstances is a fact that it is no longer necessary to insist upon.
because it has been over and over again so decided by Courts as to whose authority there can be no doubt.
But the question whether war existed or not may. of course, from time to time be a question of doubt, and if
that had been the question in this case, it is possible that some of the observations of the learned counsel
with regard to the period of trial, and the course that has been pursued, might have required consideration.
But no such question arises here. An Act of Parliament has beer passed in Natal which in terms enacts the
legality of the sentences in question, and provides that they shall be deemed to be sentences passed in the
regular and ordinary course of criminal jurisdiction. This Board has no power to review these sentences, or
to inquire into the propriety or impropriety of passing such an Act of Parliament. The only thing for persons
who are subject to such an Act of Parliament to do is to obey. The question in this case arises under the
Natal Act of Parliament in respect of offences committed in Natal Act or Parliament in respect of offences
committed to Natal, which Act has been assented to by the Governor and. Natal, which Act has been
assented to by the Governor and, having force of taw, is binding on their Lordships. The language of the
Act appears to their Lordships to be subject to no question of doubt or ambiguity at all.
Section 6 enacts that, 'All sentences passed by any Courts Martial or by any Court or person administering
martial law under the authority of the Governor or of the commandant of militia in Natal, or by any military
officer purporting to exercise authority in that behalf, since the date of the aforesaid proclamation of
February 9, 1906, including fines and other punishments inflicted by military officers in the field, are
hereby confirmed and made and declared to be lawful, and in so far as the same shall not have been already
carried into effect, shall be deemed to be final sentences passed by duly and legally constituted Courts of
this Colony, and no appeal shall lie in respect of same, but they shall be and remain in force and shall be
carried out in the same manner as the sentences of the Courts of law in this Colony."
Under these circumstances their Lordships feel that it is impossible to entertain any question of appeal, and
they will, therefore, humble advise His Majesty to dismiss the petition. “
Bugga v. The King-Emperor was an appeal by special leave before the Judicial Committee of House of
Lords against the judgment of a Commission appointed under Martial Law Ordinance, 1919 functioning at
Lahore Twenty one persons, who were appellants in this case were convicted of offence under section 121
of Indian Penal Code by the Commission and sentenced to death and forfeiture of their properties. The
appellants contended before the Judicial Committee that the Ordinance under which they were tried applied
to offence committed before April 13 but nor later than March 30 and that if Ordinance I\' of 1919 applied
to them, the Ordinance was invalid under section 65(2) and (31 of the Government of India Act, 1915 The
argument was repelled by the Judicial Committee as follows:-
"It was contended that the Ordinance under consideration, by depriving British subjects in India of the right
to be tried in the ordinary course by the Courts of law, affected the unwritten laws or Constitution whereon
the allegiance of His Majesty's subjects in India depends, and was accordingly invalidated by the subsection
last referred to; and reference was made to Clavin's case (1) and to the maxim ' Protectio trahit
subjectionem et subjectio protectionern.' It is not easy to understand how the substitution for the ordinary
Indian Court which are themselves of statutory origin of another tribunal of a judicial character can be said
to affect in any was the unwritten laws or Constitution of the country; but apart from this observation, the
argument appears to rest upon a misconception as to the meaning and effect of the subsection. The
subsection does not prevent the Indian Government from passing a law which' may modify or affect a rule
of the Constitution or of the common law upon the observance of which some person may conceive or
allege that his allegiance depends. It refer only to laws which directly affect the allegiance of the subject to
the Crown, as by a transfer or qualification of the allegiance or a modification of the obligations thereby
imposed. 'in the case of In re Ameer Khan (2) the meaning of a similar provision in the Act of I R33 (3 & 4
Will 4, c. 85. s.43) was discussed at length. and Phear. J. stated his opinion as follows. 'But I think it right
to say that in my judgment the words 'whereon may depend, etc.,' do not. refer to any assumed conditions
precedent to be performed by or on behalf of the Crown as necessary to found the allegiance of the subject,
but to laws or principles which prescribe the nature of the allegiance--viz., of the relations between the
Crown on the one hand and the inhabitants of particular provinces, or particular classes of the community.
on the other; and obviously such laws and principles as these are not touched by the local Acts which are
impeached before us.‟
Since that Judgment was pronounced the provision so interpreted has peen re-enacted substantially in the
same terms in the Act of 1915; and many statutes and ordinances have been passed in India which were
similar in effect to the regulation then under consideration. If their Lordships were to adopt the argument
now pressed upon them, they would be casting doubt upon a long course of legislation and judicial decision
which must be presumed to have been known to and in the view of the Imperial Parliament when the Act of
1915 was passed: see Reg. v. Burah. (.1) Reference may also be made to the recent case of Besant v.
Advocate-General of Madras (2), where a like argument was rejected by the Board. This argument,
therefore, cannot prevail.
Turning now to section 65, subsection (3), of the Act of 1915, that subsection is as follows: 'The Governor
General in Legislative Council has not power. without the previous approval of the Secretary of State-in-
Council, to make any law empowering any Court, other than a High Court, to sentence to the punishment of
death any of His Majesty's subjects born in Europe, or the children of such subjects; or abolishing any High
Court."
Upon this enactment it was argued that Ordinance IV, if it subjects any persons whatever to be tried for his
life by a Commission in lieu of the ordinary Courts of law or Courts-martial, is an infringement of the
provision which prevents the. Governor-General-in-Council from empowering any Court other than a High
Court to sentence to death any of His .Majesty' subjects born in Europe, and accordingly that the Ordinance
is void not only as to persons falling within subsection (3) but altogether. The answer to this contention; is
to be found in section 2 of the Government of India (Amendment) Act, 1916, which provides that there
shall be inserted at the end of section 84 of the Act of 1915 the following words: "A law made by airy
authority in British India and repugnancy to any provision of this or any other Act of Parliament shall, to
the extent of that repugnance, but not otherwise, be void."
It appears to their Lordships that if the Ordinance in question in this case contravenes section 65, subsection
(3), of the Act of 1915, it may properly be described as 'repugnant' to that section so far as European born
subjects are concerned, and if so it is void to the extent of that repugnant but not otherwise. This argument,
therefore, also fails."
Clifford and O'Sullivan was an appeal before the House of Lords from an order of the Court of Appeal in
Ireland. That appellants, who were civilian, were arrested by Military Force and were separately tried
before Military Court convened under the instructions of General Strickland on charge of being improperly
in possession of arms and ammunition and were convicted and sentenced to death subject to confirmation.
The appellants applied to Chancery Division of a Writ of Prohibition against the Military Court, Sir Navid
Macrealy and General Stickland, which was refused by Powell, J. Upon an appeal to the Court of appeal in
Ireland, an objection was taken that the order of Powell, J. was not made in a criminal case, therefore, under
section 50 of the Supreme Court of Judicature Ireland Act, 1877, the appeal was not competent. In appeal
before the House of Lord, 3 questions were raised (1) Whether the Military. Court had any jurisdiction to
deal with the charge against the appellants? (2) Whether prohibition was the appropriate remedy(?) and (3)
Whether any appeal lays from the order passed by Chancery Division.
The House of Lords did not decide the first question but on the other two questions, Viscount Cave
expressed as follows:-
"The so-called 'Military Court', Whose proceedings were in question before Powell, J., was not and did not
claim to be a Court or Judicial Tribunal in any legal sense of those terms. It was not a Court Martial, that is
to say, a Tribunal regularly constituted under military law, but a body of military officers entrusted by the
commanding officer with the duty of inquiring into certain alleged breaches of his commands contained in
the proclamation, and of advising him as to the manner in which he should deal with the offences; and its
'sentences', if confirmed, will derive their force not from the decision of the Military Court, but from the
authority of the officer commanding His Majesty's forces in the field. Its true position was described by
Lord Halsbury in Tilonko v. Attorney-General of Natal (1) on the following terms.: 'The right to administer
force against force in actual war does not depend upon the proclamation of martial law at all. It depends
upon the question whether there is war or ,not. If there is war, there is the right to repel force by force, but it
is found convenient and decorous, from time to time, to authorise what are called 'Courts' to administer
punishments, and to restrain by acts of repression the violence that is committed in time of war, instead of
leaving such punishment and repression to the casual action of persons acting without sufficient
consultation, or without sufficient order or regularity in the procedure in which things alleged to have been
done are proved to make these proceedings of so-called . 'Courts martial,' administering summary justice
under the supervision of a military commander, analogous to the regular proceedings of Courts of Justice is
quite illusory,' and as the so-called Military Court was not a Court in any legal sense, so the charges against
the appellants which were brought before that body were not in any legal sense charges of crime. It is true
that the unauthorised carrying of fire-arms and ammunition was in fact an offence against the law, both
under the Firearms Act, 1920, and under the Restoration of Order in Ireland Regulations (see Regulation 9-
AA and the order of the competent Military Authority in Ireland, dated September 28, 1918, and continued
in force by the Order in Council of August 13, 1920, para. 1, subsection (5): but the appellants were not
charged with an offence against the Act or the Regulations, and the Military Court could and did not
purport to deal with them under those enactments. They sit, not as a tribunal for hearing charges of crime,
but as a military committee for considering a matter arising under the proclamation and advising the
commanding officer thereon: and, although in the interest of the prisoners brought before them they
followed the forms of law, their proceedings were in no sense criminal proceedings. I think it follows ,from
these considerations that Powell, J., in reviewing the proceedings of the so-called Military Court, was not
adjudicating in a criminal cause or matter and according that an appeal lies from his decision."
Lord Dunedin Lord Atkinson and Lord Shaw of Dunfermlne concurred with the above opinion of Viscount
Cave. Lord Sumner, though wrote a separate opinion but in the end he also upheld the preliminary
objection.
Rex v. Allen, the last case relied by the learned Attorney-General is a decision by the King's Bench of
Ireland. The facts as stated in the report are that on 10-12-1920 in consequence of disorder which
culminated in the Macroom massacre, Martial Law was proclaimed in certain cities of South Ireland. The
Chief of Forces in Ireland, proclaimed that any authorised person found in possession of arms or
ammunition, would be liable to conviction by a Military Court, to suffer death. John Allen, a civilian. was
arrested within the proclaimed area in possession of arm and ammunition and on being convicted by a
Military Court was sentenced to death. Application for issuance of Writ of Prohibition, habeas corpus and
certiorari was made to King's Bench Division of Ireland on the ground that conviction was in excess of the
jurisdiction of the Court. Following four questions were framed by the Court for decision in the case:--
(1) Was there a state of war in the area included in the proclamation justifying application of Martial
Law?
(2) What are the powers of Executive Government in dealing with an armed insurrection?
(3) Could Military Court Act, having regard to the fact that Courts of Justice in the area were open ?
(4) Could the Military Courts impose a sentence of death (a) having regard to the provisions of restoration
of Order Act, 1920, and the Regulations made thereunder and the Fire-arms Act, 1920, which imposed
minor penalties for the same offence; (b) having regard to the fact that the accused was not caught in actual
conflict or in fresh pursuit?
On point No. 1, the Court found that at the time of issuance of Proclamation a state of war actually existed
and continued to exist at the time of arrest of John Allen. On point No.2, the Court after reviewing the
historical background of insurrection and rebellion in the United Kingdom in the past, and the prevailing
conditions in the Ireland, observed as follows:-
"It is also clear on the authorities that when martial law is imposed, and the necessity for it exists, or, in
other words, while war is still raging. this Court has no jurisdiction to question any acts done by the
military authorities (Ex parte Marais, (1902) AC 109), although after the war is over persons may be made
liable, civilly and criminally, for any acts which they are proved to have done in excess of what was
reasonably required by the necessities of the case: Governor Wall's Case (18021 ?R St. Tr. 51); Wright v.
Fitzgerald (1978) 27 St. Tr. 759); Reinstord v. Browne (2 N. Ir.Jur. Repts. 179); Ex parte Milligan (1866), 4
Wall, U.S. 2)--unless these acts have in the meantime been covered by an Act of Indemnity."
On point No.3, the Court observations were as follows:-
"This point was raised in a net form in' Wolfe Tone's case (1798) 27 St. Tr.614) but in consequence of his
death was never decided. Wolfe Tone was charged with high treason, in that he, being a natural born
subject of the King, had traitorously entered into the service of the French Republic, then at open war with
His Majesty, and had been taken bearing arms against his King and country. He was tried by Court-martial,
acting under martial law, and was convicted and sentenced to death. On the morning fixed for his
execution, Mr. Curran applied to this Court for a writ of habeas corpus on the ground that he had no
commission under His Majesty, and that, therefore, no Court martial could have cognizance of any crime
imputed to him while the Kings's Bench sat in the capacity of the great criminal Court of the land. The
Court granted the writ without argument, but in consequence of the death of the prisoner, no return was
even made to it, and the question was, therefore, never discussed or decided. The Irish Parliament,
however, in the following year, in the Act of 39 Geo. 3, c. 11, to which we have previously referred,
removed any doubt that might have existed on the point by specially enacting that persons might be
punished according to martial law, whether the ordinary Courts of Justice should or should not at such time
be open.
In 1838 the then Attorney-General and Solicitor-General, Sir John Campbell, afterwards Lord Campbell,
and Sir R.M.Rolfe, afterwards Lord Cranworth, gave an opinion in reference to the state of arrest then
prevailing in Canada to the effect that when -the regular Courts were open so that criminals might be
delivered over to them to be dealt with according to the ordinary law, there was not any right in the Crown
to adopt any other course of proceedings ... ... ... ...Cases and Opinions on Constitutional Law, p.199). It
may, however, be doubted whether they contemplated such a system of guerilla warfare as that now
described.
The matter did not arise again for decision until the case of ex parte Marais (1902 AC 109), where it was
strenuously argued by Mr. Haidane that once it appeared that the ordinary course of law could be and was
being maintained, a state of war did not exist; and martial law in that case could not be applied to civilians.
The Board, however, which consisted of the Lord Chancellor, Lord Halsbury, Lord Macnaghten, Lords
Shand, Lord Davey, Lord Robertson, Lord Lindley, and Sir Henry de Villiers, did not accept this view; and
the Lord Chancellor, in giving judgment, laid it down in clear language that the fact that for some purposes
some tribunals had been permitted to preserve their ordinary course was not conclusive that war was not
raging. This case has, no doubt, been criticised on the ground that some of the language employed in the
judgment was too wide, but it is a clear authority for the net point it decides, and we must give effect to it."
The observations of the Court on point No.4 are not relevant for the controversy arising in the cases before
us and, therefore, need not be referred.
From the facts and observations of the Courts in the cases reproduced above, it is quite clear that these
cases proceeded on the assumption that Martial Law was validly declared by the Authorities and a state of
actual war or rebellion existed at the time of proclamation of Martial Law which justified constitution of
Martial Law Courts. No such circumstances are pleaded in the present cases and as such the cases relied by
the learned Attorney-General are distinguishable.
18. The circumstances in the present cases cannot be equated with the imposition or proclamation of
Martial Law. The scope and character of Martial Law was considered by a Full Bench of Lahore High
Court consisting of Muhammad Munir, C.J., S.A. Rehman and M.R. Kiyani, JJ. in the case of Muhammad
Umer Khan v. Crown (PLD 1953 Lah. 528). The following observations from the . judgment of
Muhammad Munir, C.J., are reproduced here which are relevant for the issue under consideration in these
cases:-
"In Constitutional jurisprudence, martial law is used at least in four different senses. In the first sense, it is
used with reference to the law relating to discipline in the Armed Forces of the State which is administered
by Tribunals, called Courts Martial. These Courts are constituted for the purpose of regulating the
Government of the military and their jurisdiction in no circumstances extends to the civilians. In our
country, martial law in this sense means the law administered by Courts Martial constituted under the Army
Act, the Naval Discipline Act and the Air Force Act. '
In the second sense, the word 'martial law' means 'military Government in occupied territory' and is used to
describe the powers of a military commander in times of war in enemy territory. In this sense, martial law
is recognized by Public International Law as a part of the jus belli. The Duke of Willington had this kind of
martial law in mind when in a debate in the House of Lords he said:-
'Martial Law is neither more nor less than the will of the general who commands the army. In fact martial
law means no law at all.'
Distinction between this form of martial law and the other two, which will presently be defined, has been
well brought out by an American Writer, Mr,. Magoon, in his Reports on the Law of Civil Government in
Territories subject to Military Occupation. He says:-
'A Military Government takes the place of a suspended or destroyed sovereignty, while martial law, or,
more properly, martial rule, takes the place of certain governmental agencies which for the time being are
unable to cope with the existing conditions in a locality which remains subject to the sovereignty. The
occasion of Military Government is the expulsion of the sovereignty theretofore existing, which is usually
accomplished by a successful military invasion. The occasion of martial rule is simply public exigency
which may rise in time of war or peace. A Military Government since it takes the place of a deposed
sovereignty, of necessity continues until a permanent sovereignty is again established in the territory.
Martial rule ceases when the district is sufficiently tranquil to permit the ordinary agencies of Government
to cope with existing conditions.'
In the third sense in which it is a part of English Constitutional Law, martial law means the rights and
obligations of the military under the common and statute law of the country to repel ,force by force while
assisting the civil authorities to suppress riots, insurrections or other disorders in the land. In American
Constitutional Law, Martial Law in this sense is a form of the police power of the State and means law
which has application when the military arm does not supersede civil authority but is merely called upon to
aid such authority in the execution of its civil functions. This form of martial law is well-recognized by the
Law of England and there are several ancient statutes which make it incumbent not only on the citizens but
also Crown servants, including the army, to assist civil authorities in suppressing disorders to the 'land.
Cases illustrative of this law are Rex v. Kenneth (I) and Rex v Pinnev (2). but its best exposition is to be
found in Lord C.J. Tindal's charge to the Bristol Grant Jury On the Special Commission, on the 2nd of
January, 1832, 172 ER 966. He said:-
…………………..…………………..…………………..…………………..…………………..……………
……..…………………..…………………..…………………..…………………..…………………..………
…………..…………………..…………………..…………………..………
In seeking to discover the source and reason of martial law, the best course to adopt is to find an answer to
a few simple questions.. In case of war or invasion do the military have a right to act suo motu? If so, do
they have the same right where there is a not, insrrection, revolt or rebellion which, if not suppressed
immediately, may become a successful revolution? If the answer to both these questions be in the
affirmative, a third question, and that is the most important question, immediately presents itself, namely,
what are the powers of the military when called upon to act in any such contingency? Can they, for the
purpose of suppressing the riot or rebellion, make their own Rules and Regulations, set up their own Courts
to enforce such Rules and Regulations and, thus. infringe the right of freedom of person and of enjoyment
of property to which citizens are entitled under the ordinary law in peace time'? If Constitutional
jurisprudence furnishes an answer of these questions, that is martial law sui generis.
Most Constitutional writers affirm that where civil power is` deposed, suspended or paralysed by domestic
disturbances, the military are entitled to step in to fill up the void but these writers are equally clear in their
opinion that while so acting the legality or excusability of any action taken by the military will be judged
by 'necessity' and that such judgment will lie with the Civil Courts ex post facto. Thus martial law is the
lam of military necessity, actual or presumed in good faith. Whether where the defence of necessity and
good faith cannot be t founded on civil law, e.g., right of private defence or the use of force to disperse
unlawful assemblies and there is no indemnity bill, it will be recognized by Civil Courts is an open question
though observations `r occur in several cases clearly indicating that such necessity will he recognized as a
good defence Phillip v. Eyre (supra); Tilonko v. Attorney-General of Natal (supra) If martial lam is a law
and its limits are prescribed by necessity, then:
(1) Not only the Crown has the prerogative to proclaim martial law but without any such proclamation
the military can take over whereby war, insurrection, rebellion or tumult civil authority is deposed,
suspended or paralysed.'
(2) All acts done by the military which are either justified by the civil law or were dictated by necessity
and done in good faith will be protected. even if there be no bill of indemnity.
(3) While Presentive action for the duration of the martial law will be valid, punitive action will
generally be invalid.
(4) Martial law will cease ipso facto. with the cessation of the necessity for it; and
(5) . sentences of confinement by Military Courts will expire with the expiry of the martial law.
If martial law is not law, it is obvious that when the military step in and take charge of the civil
administration in the disturbed area. setting up their own Courts, any action taken by them unless justified
by civilian would be entirely illegal. making them liable to be sued or prosecuted for all encroachments on
rights of person and property unless, by subsequent legislation, their acts are condoned or excused by
indemnity legislation. Now because the professed justification for the military to step to is the disturbance
of public tranquillity and the object is to restore civil authority to its normal condition, the scope of the
activities of a military commander extends only to taking such action as is necessary for the restoration of
law and order, and all acts that fall within the scope of that activity will certainly be validated for the
Martial Law period by an indemnity bill. A military commander, therefore, incurs a serious risk if beyond
doing what is necessary for the restoration of law and order he takes upon himself other functions which
have nothing to do with the restoration of normal conditions. He may take property, liberty and even life, if
in good faith he considers such taking necessary, and if he does so it is not because he has any legal right to
do it, but because he may reasonably expect the Legislature to ratify what he has done in good faith. And
while this condition of affairs exists there is universal consensus of opinion that Civil Courts cannot call
into question the legality or propriety of his action. Durante Bello, therefore, the will of the military
commander is as supreme in the area as if he were in military occupation of the enemy territory the only
difference being that whereas the subjects of a belligerent country, who reside in occupied territory, have
no legal right against the military, the persons on whom the military commander exercises jurisdiction in
his own country in times of peace have rights with which he can interfere only in the expectation that after
the termination of the state of affairs his actions would be ratified by the Legislature. As Willes, J.
remarked in Phillips v. Eyre (supra) 'there may be occasions in which the necessity of the case demands
prompt and speedy action for the maintenance of law and order at whatever risk. and where the Governor
may be compelled, unless he shrinks from the discharge of paramount duty, to exercise de facto powers
which the Legislature would assuredly have confided to him if the emergency could have been foreseen,
trusting that whatever he has honestly done for the safety of the State will be ratified by an Act of
indemnity and oblivion'. It would, therefore, follow from this that the moment Martial Law is withdrawn all
orders of the military, including sentences of imprisonment which were intended to continue after the
cessation of the Martial Law cease to have force and effect unless they are kept alive by legislation."
19. Martial Law as explained in International Encyclopedia of Social Sciences also means, an inherent
attribute of sovereignty, the right of every government to take whatever steps are necessary for its own
preservation.' The question which arises for consideration, however. is, whether the above concept of
Martial Law is to be taken as inherent in the working of every Constitutional Government's in my humble
view, a Government functioning under a written Constitution derives its powers and strength from the
provisions of the Constitution. Therefore, unless the Constitution either expressly or by necessary
implication recognizes these concepts of Martial Law, the same cannot form part of the Constitutional
Scheme. It is significant that in the two previous Constitutional documents, the Constitution of Islamic
Republic of Pakistan, 1956 and the Constitution of Republic of Pakistan, 1962 under which the country was
governed in the past, specific provision under Article 196 and Article 223-A respectively, existed which
authorised the Parliament to enact laws indemnifying any person in the service of Federal or Provincial
Governments or any other person in respect of act done in' connection with the maintenance or restoration
of order in any area in Pakistan where Martial Law was in force, validating any sentence passed,
punishment inflicted, forfeiture ordered or other acts done under Martial Law in such area. Even the Interim
Constitution of 1972 contained similar provision indemnifying the acts done during Martial Law, under its
Article 278. However, when the Constitution was framed the words 'Martial Law' were deliberately omitted
from Article 237 which authorised the Parliament to enact law indemnifying the acts of person in the
service of the Federal Government or Provincial Government. or any other person, in respect of acts done
in connection with the maintenance or restoration of order in any area in Pakistan. Not only that, Article 6
of the Constitution defined High Treason, as an act to abrogate or attempt or conspire to abrogate or subvert
the Constitution by use of force or by other unconstitutional means and punishment for it is to be prescribed
under an Act of the Parliament- The then Law Minister while introducing the Constitution, 1973 Bill in the
National Assembly of Pakistan on 17-2-1973 made these remarks to his speech:--
"We have suffered the dictators, and when President Zulfikar Ali Bhutto, sometime back before this very
august House, on a different occasion, said: 'Let us proceed to make the Constitution' these were his words
at the time of making the Interim Constitution, and with the making of the Constitution the course of
Martial Laws; the ' apprehensions of taking the control of the country by usurpers and dictators and
exploiter's shall be buried once and for all' he was hundred per cent. correct. "
20. In view of the preceding discussion, Martial Law in its above jurisprudential concept, cannot he treated
as part of the Constitutional Scheme of the Constitution. Accordingly . it follows that while invoking the
provisions of Article 245 of the Constitution the consequences flowing from imposition or proclamation of
Martial Law would not follow. The question then arises what is S the role of Armed Forces called in aid of
the civil power under Article 245 of R the Constitution. The key words in Article 245 of the Constitution
are "act in aid of civil power". The expression civil power as contended by the learned Attorney-General
mean the total structure of the State. The words "civil power" have been interpreted by all the learned
Judges in Darwesh M. Arbev's case as "consisting of the Executive, the Legislature and the Judiciary". The
Judiciary which is one of the limbs of the State and is separate and independent from Executive, is
functioning normally and the Courts established under the Constitution and established by law are open and
discharging their functions as usual. The Armed Forces have been called by the Federal Government to
meet the challenge of deteriorating law and order situation. It is axiomatic that one who is called in aid
cannot act in supersession or substitution of the one which called it in aid. The expression "act in aid"
necessarily implies continuation and existence of the one which called the other to act in its aid. To act in
aid only means to provide strength and support and not to substitute or supplant. Therefore, even if it is
assumed that the Armed Forces were called in aid of the Civil Courts, -they could not supplant, supersede
or act in substitution of the Civil Courts. While acting in aid of Civil Courts, they could only perform those
acts which would provide strength and support to the existing system of Civil Court.
In the case of Naga Peoples' Movement of Human Rights v. Union of India (AIR 1998 SC 431). the
Supreme Court of India while considering the `cope of expression "in aid of the civil power" in Entry 2-A
of List I and in Entry 1 of List 11 of the Indian Constitution. observed as follows:-
"The expression 'in aid of the civil power' in, Entry 1 of the State List and in Entry 2-A of the Union List
implies that deployment of the Armed Forces of the Union shall be for the purpose of enabling the civil
power in the State to deal with the situation affecting maintenance of public order which has necessitated
the deployment of the Armed Forces in the State. The word 'aid' postulates the continued existence of the
authority to be aided. This would mean that even after deployment of the Armed Forces the civil power will
continue to function. The power to make a law providing for deployment of the Armed Forces of the Union
in aid of the civil power in the State does not comprehend the power to enact a law which would enable the
Armed Forces of the Union to supplant or act as a substitute for the civil power in the State."
The Indian Supreme Court in the above case while considering the scope of authority of Armed Forces
when called for maintenance of public order, further observed as under:-
"Maintenance of Public Order involves cognizance of offences, search, seizure and arrest followed by
registration of reports of offences (F.I.Rs.), investigation, prosecution, trial and, in the event of conviction,
execution of sentences. The powers conferred under the Central Act only provide for cognizance of
offences, search, seizure and arrest and destruction of arms dumps and shelters and structures used as
training camps or as hide-outs for armed gangs. The other functions have to be attended by the State
criminal justice. machinery viz. the police, the Magistrates, the prosecuting agency, the Courts, the jails etc.
This would show that the powers .that have been conferred under section 4 of the Central Act do not enable
the Armed Forces of the Union to supplant or act as substitute for the civil power of the State and the
Central Act only enables the Armed Forces to assist the civil power of the State in dealing with the
disturbed conditions affecting the maintenance of public order in the disturbed area. "
21. As a result of the above discussion, I hold that the establishment of Military Courts under the Ordinance
for trial of civilians for offences mentioned in the Schedule to the Ordinance, is invalid, unconstitutional
and outside the scope of Article 245 of the Constitution. Consequently, the convictions made and sentences
awarded by the Military Courts which are not yet executed, are declared illegal and without lawful
authority. These cases and all other cases pending before the Military Courts stand transferred to the Anti-
Terrorist Courts already in existence or which may hereinafter to be created in terms of the guidelines
provided in the short order passed by us in the cases on 16-2-1999. The evidence already recorded in the
cases before the Military Courts, shall be read as the evidence in those cases provided it shall not affect any
of the powers of the Presiding Officers in this regard as is available under the law. The', convictions made
and sentences awarded by the Military Courts which have been executed will be treated as past and closed
transactions. The Government will take all necessary steps for implementation of the guidelines provided in
our short order dated 17-2-1999. As I have reached the conclusion that establishment of Military Courts for
trial of civilians was invalid ands unconstitutional, the other contentions raised by the petitioners in these
cases need not be attended to.
The petitions and miscellaneous applications filed therein, accordingly, stand disposed of in the terms
stated above.
(Sd.)
SAIDUZZAMAN SIDDIQUI, J.
IRSHAD HASAN KHAN, J.---I have gone through the illuminative judgment proposed to be delivered by
my learned and Hon'ble Mr. Justice Ajmal Mian, C.J., who has skilfully discussed the questions raised in
the above Constitution Petitions, relating to establishment of Military Courts in the country, particularly, in
the Province of Sindh. I respectfully agree with the judgment proposed to be delivered by him in support of
the Short Order, unanimously rendered by this Court on 17th February, 1999. However in view of the
importance of the case, I would add the following note.
2. The President of Pakistan issued Proclamation of Emergency, published in the Gazette of Pakistan,
`Extraordinary, on 28th May, 1998, which reads thus:-
"PROCLAMATION OF EMERGENCY"
Islamabad, the 28th May, 1998.
"No. 7-3/98-Min.l.--Whereas the President is satisfied that a grave emergency exists in which the security
of Pakistan is threatened by external aggression and by internal disturbance beyond the power of Provincial
Governments to control.
2. NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 232 of the
Constitution of the Islamic Republic of Pakistan, the President is pleased to issue hereby this Proclamation
of Emergency.
MUHAMMAD RAFIQ TARAR,
THE PRESIDENT"
3. This was followed by the Order of Emergency, suspending the right to move any Court for the
enforcement of the fundamental rights specified therein, in the following terms:
"ORDER"
WHEREAS clause (2) of Article 233 of the Constitution of the Islamic Republic of Pakistan provides that
while a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move
any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II of the
Constitution as may be specified in the Order, and any proceeding in any Court which is for the
enforcement, or involves the determination of any question as to the infringement of the Rights so
specified, shall remain suspended for the period during which the Proclamation is in force;
"AND WHEREAS a Proclamation of Emergency is in force;
"NOW, THEREFORE. in exercise of the powers conferred by the said clause (2) of Article 233, the
President is pleased to declare that the right to move any Court, including a High Court and the Supreme
Court for the enforcement of all the Fundamental Rights conferred by Chapter I of Part II of the
Constitution, and all proceedings pending in any Court which are for the enforcement, or involve the
determination of any question as to the enforcement, of any of the said Rights, shall remain suspended for
the period during which the said Proclamation is in force."
MUHAMMAD RAFIQ TARAR, PRESIDENT."
4. The two Houses of the Parliament in their joint sitting held on 10th June, 1998, approved the Order made
by the President on the 28th May, 1998 under clause (2) of Article 233 of the Constitution of the Islamic
Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), through the following resolutions:-
"RESOLUTIONS"
"2. Further discussion on the following resolutions moved by Mian Muhammad Yasin Khan Wattoo,
Minister for Parliamentary Affairs on the 6th June, 1998:-
(i) "That the joint sitting approves under clause (7) of Article 232 of the Constitution the Proclamation of
Emergency issued by the President on the 28th May, 1998,. under clause (1) of Article 232 of the
Constitution".
(ii) "That the joint sitting approves the Order made by the President on the 28th May, 1998, under clause
(2) of Article 233 of the Constitution".
5. On 13th July, 1998, the President varied the Order made on 28th May, 1998 in the following terms:--
"No.43/1/198-Min.I.--In exercise of the power conferred by clause (2) of Article 233 of the Constitution of
the Islamic Republic of Pakistan, the President is pleased to vary the order tirade on the 28th May, 1998, as
follows:
"In the said Order, in the third paragraph for the words "all , the Fundamental Rights conferred by Chapter I
of Part. II" the words and figures " the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 13,
23, 24 and 25" shall be substituted."
6. On 20th November, 1998, the President of Pakistan promulgated Ordinance No.XII, 1998 to enumerate
the powers and duties of the Armed Forces acting in aid of civil power, in the exercise of his power under
paragraph (c) of clause (2) of Article 232 of the Constitution, called as the Pakistan Armed Forces (Acting
in Aid of the Civil Power) Ordinance, 1998 (hereinafter referred to as the Ordinance;. which came into
force on the said date under subsection (31 of section 1 thereof. It would be advantageous to reproduce the
preamble of the Ordinance, which reads thus:--
"Whereas it is expedient to enumerate the powers and duties of the Armed Forces acting in aid of civil
power for the achievement of the objects of the Order made under paragraph (c) of clause (2) of Article 232
of the Constitution of the Islamic Republic of Pakistan on the 30th October, 1998;
"And whereas the National Assembly is not in session and the President is satisfied that circumstances exist
which render it necessary to take immediate action;
"Whereas, it is expedient to enumerate the powers and the duties of Armed Forces acting in aid of civil
power, under Article 245 of the Constitution of Pakistan for the purpose of security, maintenance of law
and order and restoration of peace;
"NOW, THEREFORE, in exercise of the power conferred by clause (1) of Article 89 of the Constitution of
the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following
Ordinance."
7. Section 2 of the Ordinance defines 'Court' to mean and include trial Courts and Courts of appeal which
are convened under Pakistan Army Act, 1952 (Act XXXIX of 1952) (hereafter called the Army Act),
Pakistan Air Force Act 1953 (Act VI of 1953) and Pakistan Navy Ordinance, 1961 (Ordinance XXXV of
1961).
Section 3 relates to convening of Courts whereby as directed by the Federal Government, the Chiefs of the
Staff of the Armed Forces or an officer not below the rank of Brigadier or equivalent rank in Pakistan
Navy, Pakistan Air Force authorised by the concerned Chief of the Armed Forces in this behalf, may
convene as many Courts as may be necessary to try offences triable under' this Ordinance including the
convening of Courts of appeals to hear appeals against the decisions made and sentences passed by the
Court.
Powers of the Court have been laid down under section 4 of the Ordinance to the following effect:-
"( l) A Court convened under section 3 shall have the power to try any person including a person who is not
a member of !he Armed Forces who has committed any offence specified to the Schedule to this Ordinance
in any area in which the Armed Forces are acting in aid of civil power and pass any sentence authorised by
law within three days.
(2) For the trial offences under this Ordinance procedure provided in the Pakistan Army Act, 1952,
Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961, and the rules made thereunder shall
apply. "
Section 5 says that the investigation for all offences specified in the Schedule to this Ordinance shall be
conducted in accordance with the provisions of the Code of Criminal Procedure (Act V of 1898) (hereafter
called the Code), and, in appropriate cases the same may be supervised by the Armed Forces under the
direction of Federal Government.
Section 6 thereof describes "Civil Commotion", punishment for which has been defined to mean creation of
internal disturbances in violation of law or intended to violate law, commencement or continuation of
illegal strikes, go slows, lock-outs, vehicles snatching/lifting, damage- to or destruction of State or private
property, random firing to create panic, charging Bhatha, acts of criminal trespass (illegal Qabza),
distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended or create unrest
or fear or create a threat to the security of law and order or to incite the commission of an offence
punishable under Chapter VI of the Pakistan Penal Code (Act XLV of 1860).'
Section 7 prescribes punishment of rigorous imprisonment for a term which may extend to seven years, or
with fine, or with both, for creating civil commotion.
Under subsection (1) of section 8 of the Ordinance, the final judgment of a Court shall be appealable before
a Court of appeals convened under section 3 ibid_ Subsection (2) thereof provides that copies of the
judgment of the Court shall be supplied to the accused and the public prosecutor or the defending officer
free of cost: on the day the judgment is pronounced, and the record of Court shall be transmitted to the
Court of appeals within two days of the decision. Subsection (3) is to the effect that an appeal under
subsection (I) ibid may be preferred by a person sentenced by a Court of appeals within three days of the
passing of the sentence. Subsection (4) says that the Attorney-General or a Prosecutor, on being so directed
by the Federal Government, may file an appeal against an order of acquittal or a sentence passed by a Court
within three days of such order. Subsection (5) provides that an appeal shall be heard and decided by the
Court of appeals within three working days from the day of its presentation, which decision shall be final
and shall not be called in question before any Court.
Section 9 provides that all offences triable under this Ordinance shall be cognizable and non-bailable and
that trial Courts and Courts of appeals shall not release any accused on bail.
Section 10 prescribes punishment for offences committed before the promulgation of this Ordinance. It
provides that where a person has committed an offence before the commencement of this Ordinance which
if committed after the date on which this Ordinance comes into force would constitute an offence under this
Ordinance. Hereunder he shall be tried under this Ordinance but shall be liable to punishment as authorized
by law at the time the offence was committed.
Section 11 provides that where a person has committed an offence before the commencement of this
Ordinance and the case relating thereto is pending trial in any Court, the same may be transferred to the
Court constituted under section 3 of this Ordinance, under a direction of the Federal Government.
Section 12 is an indemnity clause whereby no suit, prosecution or other legal proceedings shall lie against
any person in respect of anything which is in good faith done or intended to be done under this Ordinance.
Section 13 is a non obstante clause. It says that the provisions of this Ordinance shall have effect
notwithstanding anything contained in any other law for the time being in force.
Section 14 empowers the Federal Government to the effect that by notification in the official Gazette, it
may amend the Schedule to this Ordinance so as to add any entry thereto or, modify or omit any entry
therein for or in relation to offences having a nexus with the objects of this Ordinance.
"SCHEDULE to the Ordinance, reads as under:-
Any offence punishable under this Ordinance.
Offences punishable under Chapter XVI of the Pakistan Penal Code, 1860, except under sections 318 to
322, 326 to 328, 337 to 337J, 337M to 338C---
(i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon: or
(ii) if the victim is a member of police, Armed Forces or Civil Armed Forces or is a public servant, or
(iii) if there are more than one victim: or
(iv) if the victim was subjected to cruelty. brutality, torture, or burning.
3. Offences punishable under sections 295A, 298A, 364, 364A, 365, 365A, 392 to 402 of the Pakistan
Penal Code (Act XLV of 1860).
4. An offence punishable under subsection (4) of section 10 of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 (VII of 1979).
5. Offences punishable under the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965).
6. Offences punishable under sections 7 and 9 of the Anti-Terrorists Act, 1997 (XXVII of 1997).
7. An attempt or conspiracy to commit or any abetment of any of the offences under this Ordinance or this
Schedule."
On the same date, a Notification No. S.R.0.1304 (1)/98, published in the Gazette of Pakistan,
Extraordinary, was issued by the Ministry of Interior, calling upon the Armed Forces of Pakistan "to act in
aid of civil power", which reads thus:-
"In exercise of the powers conferred by Article 245 of the Constitution of the Islamic Republic of Pakistan,
the Federal Government is pleased to call upon the Armed Forces of Pakistan 'to act in aid of civil power'
and exercise such powers and perform such functions as may be deemed necessary for maintaining law and
order and security within the limits of the Karachi Division. "
On 27th November, 1998, the said Ministry issued another Notification O.S.R.0.1316(1)/98, published in
the Gazette of Pakistan Extraordinary, whereby jurisdiction of the Armed Forces "to act in aid of civil
power" was extended so as to include Hyderabad, Mirpurkhas, Sukkur and Larkana Divisions of the Sindh
Province, which reads thus:-
"In exercise of the powers conferred by Article 245 of the Constitution of the Islamic Republic of Pakistan,
the Federal Government is pleased to call upon the Armed Forces of Pakistan 'to act in aid of civil power'
and exercise such powers and perform such functions as may be deemed necessary for maintaining law and
order and security within the limits of Hyderabad, Mirpurkhas, Sukkur and Larkana Divisions of the Sindh
Province."
This was followed by another Ordinance No XIII of 1998, called the Pakistan Armed Forces (Acting in Aid
of the Civil Power) (Amendment) Ordinance, 1998. whereby section 5 of the Ordinance was substituted as
under:-
"5. Investigation.--The investigation of all the offences specified in the Schedule to this Ordinance shall be
conducted in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), and
in appropriate cases the same may be conducted by the Armed Forces. "
8. On 22-12-1998, another Ordinance No.XVII of 1998, called the Pakistan Armed Forces (acting in aid of
the Civil Power) (Second Amendment) Ordinance, 1998, was promulgated whereby subsection (1) of
section 4 of the Ordinance was amended in the following terms:--
"2. Amendment of section 4 Ordinance XX of 1998.--In the Pakistan Armed Forces (Acting in Aid of the
Civil Power) Ordinance, 1998 (XII of 1998), in section 4, in subsection (1) for the word 'three' the word
'eight' shall he substituted."
The above Ordinances were followed by Ordinance No.l of 1999, called the Pakistan Armed Forces
(Acting in Aid ' of the Civil Power) (Amendment) Ordinance, 1999 on 30th January, 1999, whereby the
Ordinance was made applicable to the whole of Pakistan and a new section 10-A was inserted in the
Ordinance to the- following effect:-
"10-A. Abscondence of accused.--Any accused person may be tried in his absence if the Court convened
under section 3, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought
about with a view to impeding the course of justice:
Provided that the accused person shall not be tried under this section unless a proclamation has been
published in the manner specified in section 87 of the Code of Criminal Procedure, 1898 (Act V of 1898),
requiring him to appear at a specified place within three days from the date of publishing such
proclamation:
Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an
Advocate to defend the accused person who is not before the Court.
Explanation.---An accused who is tried in his absence under this section shall be deemed not to have
admitted the commission of an offence for which he has been charged.”
9 Pursuant to the impugned Ordinance and the directions of the Federal Government under Article 245 of
the Constitution, the Armed Forces of Pakistan established Military Courts in Karachi, purporting "to act in
aid of civil power" in the area of Sindh Province. The petitioners herein through the above Constitutional
petitions seek to challenge the establishment of such Military Courts for the trial of offences laid down in
the Schedule to the Ordinance.
10. These petitions were admitted to regular hearing by short order dated 8-1-1999 of this Court, which
reads thus:-
"Dr. A. Basit. learned Advocate Supreme Court, drops all his other points except those challenging the
creation of the Military Courts in the present petition. This petition may be fixed alongwith the other
petitions in which the creation of the Military Courts has been challenged. After notice to the respondents,
Attorney-General and Advocates-General, the respondents will have, right to raise the question of
maintainability of the petitions.
"2. As regards the stay application, the learned Attorney-General states that he will seek instructions from
the Federation and the Provincial Governments on the question as to whether a statement can be made to
the effect that the death sentences would not be executed till the question- as to the validity of the creation
of the Military Courts is resolved. The case will be taken up on 11-1-1999. The learned Attorney-General
further submits that he will instruct the Authorities concerned that till 11-1-1999 no execution of the death
sentences will be carried out."
On 11-1-1999, another short order was passed to the following effect:
"The petitions relating to the challenge of the establishment of Military Courts will be fixed for regular
hearing after notice to the respondents and to the learned Attorney-General and the Advocate-General of
the Province of Sindh. Till the hearing, the respondents shall not execute the death sentences already
awarded or which may be awarded hereafter. To come up on 1st February, 1999. "
11. Now I would first advert to the submissions made by each of the learned counsel for the parties, who
have taken great pains in assisting this Court for resolution of the dispute raised in the above petitions.
12. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, appearing on behalf of Sh.
Liaqat Hussain, petitioner in Constitution Petition No.37/1998, pleaded that the petitioner being a Member
of the National Assembly is under a Constitutional obligation to preserve, protect and defend the
Constitution and to perform his functions as such, always in the interest of sovereignty, integrity, solidarity,
well being and prosperity of Pakistan and has, in this behalf, made before the House an oath as set out in
the Third Schedule of the Constitution, therefore, he is aggrieved by the promulgation of the Ordinance and
establishment of the Military Courts in the Province of Sindh, operation of which has now been extended to
the whole of Pakistan vide Ordinance No.I of 1999. In support of the petition, Mr. Muhammad Akram
Sheikh, formulated the following points:-
(i) The impugned Ordinance is repugnant and ultra vires of the Constitution. The repugnancy is two-fold: it
militates against the sphere allocated to the Legislature as also, it usurps and sets at naught the
independence of Judiciary, guaranteed under the Constitution.
(ii) Military Courts are not set up anywhere in the world for trials of the civilians. Under the Constitution,
this is an inalienable right of every citizen to be tried by an ordinary Court of law functioning under the
hierarchy of the Judicial organ of the State.
(iii) The guarantee to life as contemplated by Article 9 of the Constitution is breached when a person is
tried by a forum/Tribunal not established under the Constitution. The law creating the forum/Tribunal must
conform to the Constitutional guarantees, which is lacking in the impugned legislation.
(iv) The Proclamation of Emergency has no nexus with the power of the Armed Forces "to act in aid of
civil power" in terms of Article 245(1) of the Constitution.
(v) The Ordinance has been promulgated on the pretext of dealing with a situation on 20th November,
1998, prevailing in the Province of Sindh although its applicability has now been extended to the whole- of
Pakistan by virtue of Ordinance I of 1999.
(vi) By extending the operation of the Ordinance to the whole of Pakistan, it leaves no room for doubt that
the Government is replacing the present judicial system completely and effectually. This deviation is bound
to reach everywhere. ,
(vii) The Ordinance is in breach of the law as declared by this Court in the case of Sardar Farooq Ahmed
Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57), inasmuch as, this Court upheld the
Proclamation of Emergency but suspension of fundamental rights has been held ultra vires of the
Constitution.
(viii) Article 245 of .the Constitution does not confer any power on the Federal Government to call Armed
Forces "to act in aid of civil power" by setting at naught the judgment rendered by this Court in the case of
Sardar Farooq Ahmed Khan Leghari (supra).
(ix) The Military Courts as they are functioning and rendering judgments cannot be put under judicial
review because they are not bound to record reasons in support of their judgments.
13. Elaborating his submissions generally, Mr. Muhammad Akram Sheikh, pleaded that the Military Courts
were not visualized to be amenable to the superintendence of the superior Courts. The, constitution of the
Military Courts amounted to setting up of a parallel system of Judiciary. Persons tried by the Military
Courts would be deprived of the equal protection of laws since the procedure for the Military Courts was
totally different -from the ordinary procedure. The Ordinance violated the fundamental rights of the
petitioner as it was contrary to the requirements of Articles 9, 10, 14 and 25 read with Article 4 of the
Constitution. No judicial power could be conferred on Military Courts. The procedure for trial as visualized
in the Ordinance was unfair and against the requirements of due procedure of law. The Ordinance ran
contrary to the scheme of Articles 232 and 233 of the Constitution. The act of setting up Military Courts
was mala fide. The Ordinance and the setting up of the Military Courts was against the Federal spirit and
unfair to the people of Pakistan and in particular, the Province of Sindh, which has elected the petitioner as
an M.N.A. The impugned acts were also contrary to the basic concepts of human rights as recognized by all
civilized systems.
14. Reiterating his submissions, Mr. Muhammad Akram Sheikh further submitted that the Constitution
visualized trichotomy of powers in accordance with all democratic civilized systems of law. The
Constitution did not countenance the establishment of any Courts which were not subordinate to the
superior Courts i.e. the High Courts and this Court. By setting up Military Courts to 'try all citizens, even if
they were not members of the Armed Forces, in case they committed the offences set out in the Schedule,
the Government had set up a parallel system of judiciary. He contended that setting up of Military Courts to
try civilians was clearly beyond the scope of the Constitution. The matters regarding which Courts or
Tribunals other than the ordinary Courts could be set up are laid down in Article 212 of the Constitution.
This Article as well as the entire Constitution nowhere visualized that there could be any Military Court to
try ordinary citizens. The scheme of the Army Act itself was that it applies only to persons "subject to the
Act" who were defined in section 2 of the said Act. These persons were only those who were serving under
the Army in some capacity. There were similar provisions in the Pakistan Air Force Act, 1953 and the
Pakistan Navy Act, 1961.
15. Mr. Muhammad Akram Sheikh, has drawn our attention to the various provisions of the Constitution to
contend that the impugned Ordinance is against fundamental rights. He pleaded:-
(i) The. setting up of Military Courts is against their right to equal protection of law. While citizens in other
Provinces have access to the ordinary Courts of law, the citizens living in Sindh have been placed under the
jurisdiction of Military Courts.
(ii) This procedural structure on its very face is contrary to the rights of citizens living in Sindh as
guaranteed by Article 25 of the Constitution. It is submitted that a person facing trial under the Ordinance
would be facing a gross discrimination vis-a-vis persons facing the same kind of charge if not being tried
under the Ordinance. Other than the offence under section 6 of the Ordinance, the remaining offences
mentioned in the Schedule are existing offences. In an ordinary trial the Code of Criminal Procedure, 1898,
applies. This procedure visualizes that an accused person would have notice of the allegations against him
alongwith copies of the material to be used against him at least 7 days before the framing of the charge. The
trial itself has to proceed on the basis of the judgment of the trying officer regarding adequacy of
opportunity for the prosecution as well as the defence. In case of conviction an appeal may be filed within
30 days. The appeal itself is to be decided after a hearing. All these features are absent, under the
Ordinance. It can, therefore, be seen that one set of citizens of Pakistan for having committed the same
offence would be tried in a fair manner.
(iii) The impugned Ordinance, and establishment of Military Courts thereunder are in conflict with the
fundamental norms as set up in Article 4 of the Constitution. Article 4 of the Constitution lays down that no
person shall be deprived of life, liberty and property contrary to the requirements of due process of law
both substantive and procedural. The entire procedure for trial of criminal offences prescribed in the
impugned Ordinance does not even remotely satisfy the requirements of due process of law.
(iv) The basic spirit of a fair criminal trial is absolutely absent. The procedure visualised in the Ordinance is
against the basic dictates of a reasonable opportunity for a fair hearing. It does not visualise adequate notice
of the case, adequate opportunity to prepare for defence or adequate opportunity to prepare an appeal and
argue the same.
(v) The impugned Ordinance and the act of setting up of Military Courts are contrary to the requirements of
Article 9 as well as Article 10 of the Constitution. It is submitted that under Article 10 as well as under
section 349 of the Code, a citizen has the right to consult and be defended by a Legal Practitioner. No such
right is visualised for Courts Martial under the laws set out in section 2 of the impugned Ordinance.
(vi) The impugned Ordinance is highly discriminatory in its operation. It denies the citizens of Pakistan
equality before law. Section 6 read with section 7 prescribes seven years' rigorous imprisonment even for
labour related actions such as "go-slows" and "lock-outs". It visualises the same punishment for even
making graffiti or wall-chalking intended to create unrest or fear. The entire offence is extremely vague.
The Government has created an entirely different penal code for the people of Pakistan.
(vii) The impugned Ordinance purports to have been made under paragraph (c) of clause (2) of Article 232
of the Constitution for achievement of the objects of the order made thereunder on 30-10-1998. The proviso
to the said paragraph itself lays down that the Federal Government cannot suspend the operation of any
provision of the Constitution relating to High Courts. The establishment of Military Courts in so-called
furtherance of Article 245 has when read with the said Article, the effect of totally ousting the jurisdiction
of the High Courts under Article 199 of the Constitution.
(viii) The impugned Ordinance purportedly made in furtherance of the objects of Article 232 completely
ignores the provisions of Article 233 of the Constitution. Article 233 only visualises that if otherwise
justified, the Federation may make law in derogation of Articles 15, 16, 17, 18 and 24. Nowhere does it
visualise that the scope of Articles 4, 9, 10 and 25 can be curtailed or diluted. This is precisely what has
been done by virtue of the impugned Ordinance.
(ix) The act of the Federation of promulgating the Ordinance, setting up of. Military Courts and calling in
of the Armed Forces in the Province of Sindh, when examined together are against the spirit of federalism.
(x) The impugned acts amount to sabotaging the operations of a Constitutional democratic system. The
Federation by deciding to rule through the executive arm of the Army is sending out a clear signal that the
Executive is incapable of exercising its fiat under the ordinary laws.
(xi) The impugned acts amount to a statement of no confidence by the Government against the Judiciary of
the Province of Sindh and now the whole of Pakistan by virtue of the amended Ordinance. Such thoughtless
acts have only the result of eroding judicial power. The ordinary Courts are infinitely more competent than
any other specially created Courts to dispense justice and uphold the rule of law, provided crimes are
investigated professionally without any discrimination and cases are prosecuted in a professional manner
and, above all, laws are not bent for the political expediency of those who govern the people. It is,
therefore, evident that the impugned acts are a serious encroachment of the judicial power; and
(xii) The impugned acts are not only against the independence of the Judiciary. supremacy of the Judiciary
regarding exercise of judicial powers, fundamental rights of citizens but are also against fundamental
concepts of human rights. It is submitted that all charters of human rights always have; as one of the
fundamental articles that all citizens should have access to the ordinary Courts and shall be treated equally
under the law. Article 7 of the Universal Declaration of Human Rights adopted by the United Nations
declares:
"All are equal before the law and are entitled without any discrimination to equal protection of the law. All
are entitled to equal protection against any discrimination in violation of the Declaration and against any
incitement to such discrimination."
16. Mr. Muhammad Akram Sheikh further submitted that expression "civil power" had also been used in
the following legislative instruments:-
"Provincial Legislative List appended to Government of India Act, 1.935 - List II, Entry I.
" 1956 Constitution. Ist Entry in the Provincial Legislative List.
"Article 257 of the Indian Constitution - Entry No. 1, List No.III.
"Article 245 of Pakistan Constitution.
"Concurrent Legislative List -- Item No. 1."
In support of his contentions, Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, relied on
the decisions rendered in cases of Darwesh M. Arbey v. Federation of Pakistan (PLD 1977 Lah. 846); The
State v. Ziaur Rehman (PLD 1973 SC 49); Government of Balochistan v. Aziz Ullah Memon (PLD 1993
SC 3411: and Mehram Ali v. Federation of Pakistan (1998 SCMR 1156).
He referred some cases from the American jurisdiction as well, to substantiate his standpoint.
17. Syed lqbal Haider, petitioner in person in Constitution Petition No.38 of 1998, pleaded that
establishment of Military Courts and enforcement of Army Act, under the impugned Ordinance and thereby
convening of Courts, powers of the Courts, investigation, creating new offence of 'civil commotion',
punishment for creating civil commotion, appeal, punishment for offences committed before promulgation
of the Ordinance, transfer of pending cases, which are reflected in sections 2(1)(2)(3), 3, 4(1)(2), 5, 6, 7,
8(1)(4)(5), 9(1)(2), 10 and 11 of the Ordinance, 1998, are in conflict with Articles 2A, 8, 9, 14, 25, 175 and
203 of the Constitution as well as against the spirit of Article 89 of the Constitution; against the Federal
Legislative List and the ratio laid down in the following judgments rendered by the superior Courts of this
country:-
Darwesh M. Arbey v. Federation of Pakistan PLD 1980 Lahore 206;
Sharaf Faridi v. Federation of Pakistan PLD 1989 Karachi page 404;
Iftikhar Ahmad v. Muslim Commercial Bank.
KLR 1983 Civil Cases 297;
Asma Jillani v. Government of Punjab PLD 1972 SC 139;
State v. Ziaur Rehman PLD 1973 SC 49;
Niaz Ahmad Khan v. Province of Sindh PLD 1977 Karachi 604;
Qadeer Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486;
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416;

Tanveer Hussain Zaidi v. Federal Government of Pakistan 1991 CLC Karachi 261;
Mehram Ali Khan v. Federation of Pakistan PLD 1998 SC 1445;
Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan 1998 SCMR 1616.
Syed Iqbal Haider argued that the above sections of the Ordinance be struck down and appropriate
directions be issued to the Federal Government to suitably amend the Ordinance so as to bring it under the
control and supervision of the High Court and directions be also issued for providing an appeal to the
superior Courts against the sentences awarded under the Ordinance.
18. Dr. A. Basit, learned Advocate Supreme Court appearing on behalf o1 M.Q.M. in Constitution Petition
No.42 of 1998, made the following submissions:-
(i) That the impugned Ordinance under the colour of which Military Courts have been established in
Karachi, is repugnant to the Constitution and, therefore, void.
(ii) The impugned Ordinance permits trial of an ordinary civilian for criminal offences committed even
prior to its promulgation by Military Courts which are to be convened in terms of Army Act. This infringes
the Fundamental Rights of accused persons who are to be put for trial before the Military Courts in so far as
they are deprived of equal protection of law which has been guaranteed to every citizen by Article 25(1) of
the Constitution.
(iii) In any case, the impugned Ordinance violates the guarantee extended by Article 12(1) of the
Constitution regarding retrospective effect of penal statutes.
(iv) Despite determination to the effect that proclamation of emergency was validly made on 28-5-1998, the
Presidential Order relating to suspension of Fundamental Rights has been adjudged to be void. Thus, all
Fundamental Rights including those invoked above are enforceable even at present.
(v) Even otherwise, Proclamation of Emergency has no integral nexus with the power made available to the
Federal Government under Article 245 of the Constitution. In this view of the matter, the issue whether or
not the situation of emergency still subsists is irrelevant.
(vi) Article 245 contemplates a situation where Armed Forces 'act in aid of civil power'. Action in aid of
civil power will not justify authorization of trial of ordinary citizens by Military Courts.
(vii) Civil Power does not include judicial power
(viii) In any case, Armed Forces do not have the resources to come to the aid of civil power in the field of
trial of criminal offences. It shall be seen that meaningful aid can only be given in terms of resources which
are possessed by Armed Forces. Judicial expertise is not one of the resources possessed by the Armed
Forces which can be placed at the disposal of civil power.
(ix) Military Courts and Special Criminal Law applicable to enrolled personnel in Pakistan Army has the
exclusive orientation of maintaining discipline. It is not geared at all to any other situation except the one
mentioned above. Thus, neither the penal provisions of Army Act nor the hierarchy of Courts set up under
it are extendable in any such manner which may be construed as 'coming in aid of civil power,' even when
confronted with a prolonged period of urban terrorism existing in Karachi..
(x) The peculiar characteristic of Military Courts convened under the Army Act are such that it is not
possible to extend them for the trial of ordinary citizens even in cases where internal disturbances of a
serious nature are taking place. These are not judicial trials. Judicial Review by superior Courts is not
possible, as, Military Courts do not specify grounds and reasons but only record convictions.
(xi) Military Courts are not adapted to be an adequate or effective method of suppressing either sporadic
episode or systematic terrorism over prolonged period. Anti-Terrorism Act has been enforced and Special
Courts are already functioning.
(xii) Parallel system of Courts is repugnant to Article 175 of the Constitution. Engrafting judicial review by
superior Courts will not cure the inherent defects or deficiencies.
(xiii) In any case, Military Courts convened under the Army Act are such Tribunals which cannot be
brought within the judicial hierarchy recognized by the Constitution. These are not proper Courts. The law,
which these Courts administer, has the exclusive aim of maintaining Army discipline. Judicial Procedures
have been adapted to the exigencies of service in the Armed Forces. There is no nexus between suppression
of terrorism and these especially adapted procedures. Army can use coercive power available to it in the
field. It can reinforce civil armed forces. However, there is no sense in substituting ordinary Courts. Thus,
even if an Appeal or Review from the judgments and sentences of Military Courts is provided in the
impugned Ordinance, it can still not be validated. Military Courts are Special Tribunals to preserve
discipline in the Army. They cannot be adapted to the trial of any civilian even though accused of
Terrorism;
(xiv) In the Constitutional history of Pakistan, Military Courts have not been recognized /approved as a
lawful method of responding to situations of serious internal disturbances. Reference is made to Anti-
Qadiani Agitation in Punjab. Bangladesh Agitation in East Pakistan in 1970, Balochistan insurrection and
even the Civil Martial Law imposed at the end of Zulfiqar Ali Bhutto's Regime in 1977 in Lahore.
(xv) In the Constitutional history of India where imposition of Martial Law is contemplated by the
Constitution, Military Courts of Karachi type have not been set up even in extremely disturbed areas, such
as Kashmir, Punjab during the Khalistan Agitation, Assam etc,
(xvi) In other -countries which have experienced internal disturbances over prolonged periods such as Sri
Lanka, England, Algeria, etc., Military Courts of the Karachi type have-not been set up.
(xvii) A comparative study of the Constitution of similarly situated countries as Pakistan, reveals that
emergency provisions do not contemplate authorization of trial of civilians by Military Courts.
(xviii) Emergency situations are contemplated by the Constitution and the methods and manners of
response thereto are an essential part of every Constitutional dispensation. It is not permissible to travel
beyond them.
(xix) The stand that the situation in Karachi is of such a nature or character as to be beyond the
contemplation of the emergency provisions in the existing Constitution is false, as well as dangerous. This
encourages deviation from the Constitution. No Constitution can be interpreted in any such manner as to
extend approval for methods of dealing with the emergency situation beyond the purview and ambit of
emergency provisions in the existing Constitutional dispensation.
(xx) However drastic the Karachi situation may be and even if it is systematic terrorism, extra
Constitutional prescription cannot be accepted.
(xxi) Extending the analogy from medicine, to set up Military Courts for Karachi is to deliberately
administer an ultimate drug like Cortisone to a patient who is not terminally ill. Thus, setting up of Military
Courts in Karachi can be seen as giving cortisone drug to an otherwise healthy patient rather than giving
him an anti-biotic in addition to food.
The crux of his submissions is that the impugned Ordinance is ultra vires of the Constitution and the
Military Courts convened under the Army Act cannot be lawfully established.
19. Dr. A. Basit also referred to the provisions of section 129 of the Code of Criminal Procedure relating to
use of military force .for dispersing an assembly, if any such assembly cannot be otherwise dispersed at the
instance of the Executive Magistrate. Powers in this respect are conferred on any Executive Magistrate or
officer-in-charge of a police, station when the public security is manifestly endangered and no Executive
Magistrate can be communicated with, any commissioned officer of the Armed Forces may disperse the
assembly with the help of the officers under his command. Section 130 of the Code also provides for use of
Armed Forces to disperse assembly which cannot be otherwise dispersed under section 131 of the Code.
Section 130 also laid down the duty of the officer commanding troops required by Magistrate to disperse
assembly. Section 131 of the Code states the powers of Commissioned Military Officers to disperse
assembly. Section 131-A provides power to use military force for public security and maintenance of law
and order. Proviso to subsection (1) to section 131-A of the Code clearly states that such powers shall not
include the powers of a Magistrate. Subsection (3) of section 131 provides that in rendering assistance
relating to exercise of powers specified in subsection (1), i.e. the power of the appropriate Government to
direct any officer of the Armed Forces or civil armed forces to render such assistance under his command
for public security and maintenance of law and order. However, the officer shall, as far as may be, follow
the restrictions and conditions laid down in the Code. Section 132 provides that prosecution against any
person for any act purporting to be done under the Act shall be instituted in any Criminal Court, except
with the sanction of the Provincial Government; and
"(a) no Magistrate or police officer acting under this Chapter in good faith
(b) no officer acting under section 131 in good faith;
(c) no person doing any act in good faith, in compliance with a requisition under section 128 or section
130 (or section 131-A); and
(d) no inferior officer or soldier, (sailor or airman in the Armed Forces) doing any act in obedience to
any order which he was bound to obey.
shall be deemed to have thereby committed an offence."
20. Dr: A. Basit submitted that pursuant to the impugned Ordinance, the civilians accused of certain
offences mentioned in the Schedule thereto are liable to be tried by the Military Courts established under
the Army Act, without, containing any nexus between the offences mentioned and the purpose for which
the Army has been called purportedly "to act in aid of civil power". It was submitted that the Federal
Government was indisputably competent by virtue-of Article 245 to direct the Armed Forces "to act in aid
of civil power" i.e. to restore law and order but not in derogation and replacement thereof. It was submitted
that the establishment of Military Courts has in fact resulted in replacement of the ordinary criminal Courts
in respect of offences, which have been taken cognizance of by the Military Courts and may be taken
cognizance of in future, therefore, the establishment of the Military Courts under the impugned Ordinance
is ultra vires. It was reiterated that the law contemplated by Article 245 is already in existence as the one
contemplated by sections 128 to 131-A of the Code, where the use of military force to aid the civil power to
disperse an unlawful assembly, and for public security and maintenance of law and order, has been
provided but proviso to subsection (1) to section 131-A of the Code clearly stipulates that the powers
conferred on the Armed Forces for the purposes mentioned in section 131-A ibid i.e. for public security and
maintenance of law and order, shall not include the powers of a Magistrate. It was also argued that the
Military Courts can be established only when a Military Commander replaces the civil power by abrogating
the Constitution and assumes the powers of law givers, makes his own Regulations and Orders and set up
his own Tribunals: In other words Martial Law is imposed in the country.
Reliance was also placed on the cases of Muhammad Umar Khan v. Crown PLD 1953 Lah. 528, Miss
Asma Jillani (supra) and Ziaur Rehman (supra), to contend that the present operation undertaken by the
Armed Forces pursuant to Article 245(1) of the Constitution cannot be termed as Martial Law. The
Constitution still holds the field. Civilian Government is to power under the Constitution. Article 5(2)
clearly ordains that obedience to the Constitution and the law is the. inviolable obligation of every citizen
wherever he may be and of every other person for the time being within Pakistan. He further argued that
delays in Courts invariably occur during disposal of civil and criminal cases due to various factors, bath
inside and outside the Courts but there is no major fault with the existing legal system. However, to restore
law and order and curb terrorism, long and short term measures are required but not by creating a parallel
judicial system in the country. On the contrary, appropriate legal reforms and administrative/police reforms
should be introduced within the existing judicial system for tackling the problems of violence and terrorist
acts in the society.
Dr. A. Basit also referred to sections 94, 95 and 96 of the Army Act and observations of Hamoodur
Rehman, J. in the case of Brig. F.B. Ali PLD 1975 SC 506) to the following effect:-
"It is necessary to multiply these cases, because, it seems quite settled that if the Court Martial has tried a
particular case with jurisdiction, then the ordinary Courts of superior jurisdiction will not interfere in
exercise of their power of judicial review merely on the ground that some rule of procedure has not been
followed. "
He also referred to the provisions of sections 8, 11, 17, 41, 45 and 59, to contend that the Courts Martial
contemplated under the Army Act form part of the legal system but are not part of the judicial system. He
also referred to section 5 of the Anti-Terrorism Act, 1997, wherein use of Armed Forces and Civil Armed
Forces was permitted to combat terrorism in accordance with the procedure laid down in the Act. The
precise submission was that the Anti-Terrorism Act, 1997 (XXVII of 1997), is since in existence, which
provides for the prevention of terrorism, sectarian violence and speedy trial of heinous M offences and
matters connected therewith and incidental thereto, there was no need to make a parallel law as the one
contemplated. under the impugned order He further argued that it is, no doubt, the duty of the Federal
Government to protect every Province against external aggression and internal disturbances and to ensure
that the Government of every Province is carried out in accordance with the provisions of the Constitution
as contemplated under clause (3) of Article 148 of the Constitution but in exercise of its power vesting
under the above Article and Article 245 the Armed Forces can only come 'in aid of civil power' and not to
replace the civil power. The Army 'in aid of civil power' should play its Constitutional role by going to the-
area by actually conducting the operation in the field if so directed by the Federal Government and not by
convening Military Courts. To combat the terrorism operating in Karachi, the power of the Army should be
used ' in aid of civil power' but they have no Constitutional role to establish Military Courts in replacement
or in derogation of Civil and Criminal Courts in the country.
21. Mr. Shahid Orakzai, referring to the provisions of Articles 89(2), 142. 232(2), 234(2) and 234(5) of the
Constitution contended that the impugned Ordinance has violated the demarcation of legislative powers of
the Federation and the Provinces given in Chapter I of Part V, read with Item No. l of the Concurrent
Legislative List and that Article 232 of the Constitution does not empower the President/Federal
Government to bypass the Concurrent Legislative List. Reference was also made to Items 1 and 2 of the
said List of the ,Constitution td contend that the above items do not contain any provision whereunder the
Army could 'act in aid of civil power'. Particular reference was also made to Item No. l thereof which is to
the following effect:
"Criminal law,- including all matters included in the Pakistan Penal Code on the commencing day, but
excluding offences against laws with respect to any of the matters specified in the Federal Legislative List
and excluding the use of Naval, Military and Air Forces in aid of civil power. "
He argued that the Governor's rule could not be enforced in various areas of Pakistan, like Northern Areas,
FATA and PATA, therefore, the Military Courts cannot be constituted under Article 245 of the
Constitution elsewhere in the country- He further contended that under the Constitution, the Governor's rule
did not give any power to the Governor or the Federal Government to carry out the fresh legislation. The
precise submission was that the impugned Ordinance neither falls within the purview of Federal nor
Provincial laws envisaged b) Article 142 of the Constitution and is, therefore, ultra vires of the
Constitution.
22. Mr. Shahid Orakzai, next pleaded that the command and control of the Armed Forces vested in the
Federal Government, their physical obedience to a command thereof is conditional to the oath as envisaged
by Article 244 of the Constitution in terms whereof they are under a Constitutional obligation to, beat true
faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people, that, "I
will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve
Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law". The impugned
Ordinance is discriminatory and violative of the provisions of
Article 12(1)(a)(b) and Articles 13(a) and 25 of the Constitution. Mr. Shahid further submitted
that the impugned Ordinance as well as the amended Ordinance does not specify the area in
which the Armed Forces of Pakistan are acting in aid of civil power in pursuance of Article 145
of the Constitution but notwithstanding that the impugned Ordinance has been issued, which has
the effect of depriving the concerned High Court to exercise any jurisdiction under Article 1 99
of the Constitution vested in it, the Armed Forces of Pakistan are engaged in holding Military
Courts purporting "to act in aid of civil power" purportedly to pursuance of Article 245 of the
Constitution. The impugned Ordinance is also ultra vires of the Constitution, inasmuch as.
section I I of the Ordinance enables the transfer of pending cases to the Military Courts,
although. the High Court alone has jurisdiction to withdraw for trial before itself any case from
any Court subordinate to it wherein the accused person has been sentenced whereby order of
acquittal of an accused person has been reversed by the High Court and sentenced him to death
or to transportation for life or imprisonment for life or, on revision has enhanced the sentence to
a sentence as aforesaid and that, in any case, Article 185(2) of the Constitution provides a direct
appeal to this Court from any judgment, decree, final order or sentence of a High Court whereas,
in the instant case, the right of appeal before this Court has been snatched away notwithstanding
the provisions contained in Item No.55 of the Federal Legislative List, which provides-
"Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in
this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of
the .jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers."
Mr Shahid Orakzai further contended that the impugned Ordinance has been promulgated purportedly
for achieving the objects of the Order made under paragraph (c) of clause (2) of Article 232 of the
Constitution on 30th October.. 1998, but the aforesaid order does not specify any object as such. It
merely enumerates incidental and consequential occasions that may be taken by the Federal
Government, in pursuance of the Proclamation. It was next argued that the establishment of the
Military Courts was ultra vires of the Constitution, in that, any Court/Tribunal, exercising judicial
functions is under the control and supervision of the High Court as contemplated by Article 203 of the
Constitution.
23. Mr. Aitzaz Ahsan, learned Advocate Supreme Court appearing for Mi, Nisar Khurho, in
Constitution Petition No.4/1999, formulated the following points in support of the petition-"
"(a) It is fundamental concept of criminal jurisprudence that Military Courts are not an answer to a
civil law and order situation. This is not a solution to a widespread breakdown of law and order. It has a
contrary effect and creates more violence.
(b) Any law for setting up Courts that are not under the control and superintendence of the High Court,
is ultra vires of the Constitution.
(c) The Pakistan Armed Forces (Acting in Aid of the Civil Powers) Ordinance, 1998, is violative of
Article 25 of the Constitution.
(d) A citizen has inalienable right to due process and civilian procedure and the impugned Ordinance
violates the procedural due process contained in Article 9 of the Constitution.
(e) The Ordinance obstructs the fundamental right of access to ordinary Courts and norms of justice;
(f) The Constitutional trichotomy of power can be maintained if--
(i) an aggrieved party can seek review by superior Judiciary of the trial judgment, as a matter of right;
(ii) the process of appointment of Judicial Officers invested with the authority of trial is not within the
discretion of Executive but the Judges of the Military Courts were totally under the control of the
Executive, and
(iii) Judiciary is independent of the Executive.
24. Mr. Aitzaa Ahsan, elborating his submissions submitted that the Military Courts were under the
control and supervision of the Executive and are, therefore, in conflict with Articles 175. 203 and 209
of the Constitution Reliance was placed on the case of Government of Balochistan v. Aziz Ullah
Memon (PLD 1993 SC 341). In the precedent case, the respondents therein had challenged the vires of
the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II, 1968), being hit by Articles 2, 9,
14, 21. 25 and 175 of the Constitution. The provisions of the Ordinance were applicable to the
Balochistan alone. It was struck down by this Court in its entirety on the main ground that is was in
conflict with fundamental rights guaranteeing equality before law, equal protection of law and Article
175. which guarantees separate and independent Judiciary.
25. Mr. Aitzaz Ahsan has also drawn our attention to the definition clause contained in section 2,
section 3 relating to convening of Courts and section 4(2) which prescribes procedure in the trial of
offences under the Ordinance and the provisions contained in section 80 of the Army Act, which
prescribes the kinds of Courts Martial. Section 81 empowers to convene general Court Martial; section
82 prescribes power to convene District Court Martial; section 84 provides power to convince Field
General Court Martial; section 85 and section 8 of the Army Act containing definitions and, in
particular, paragraph (12) of section 8, which defines 'officer', meaning thereby a person, other than a
junior commissioned officer, commissioned, gazetted or in pay as an officer of the Pakistan Army and
includes, in relation to a person subject to this Act when serving under such conditions as may be
prescribed, an officer of the Pakistan Navy and an officer of the Pakistan Air Force, to contend that the
provisions of the Ordinance are vague on the face of it, inasmuch as, it does not disclose the nature of
the Court that may be convened by the Chief of the Army Staff or a Brigadier. He further submitted
that Courts Martial created under the Act are subordinate to the Executive, inasmuch as, the power of
dismissal or removal from the service of any person subject to the Army Act vested with the Federal
Government. Section 31 provides for Mutiny and insubordination. The offences under this section are
not tried by the Summary Courts Martial without reference to superior authority, as provided in the
proviso to section 99 thereof. Section 32--Offences in relation to superior officers provides with regard.
to any person subject to the Act, who uses or attempts to use criminal force to. or commits an assault
on, his superior officer, knowing or having reason to believe him to be such; or is grossly insubordinate
or insolent to his superior officer, knowing or having reason to believe him to be such; or impedes a
provost marshal or any person lawfully acting on his behalf, or any member of the service police, or
when called upon, refuses to assist a provost marshal or any person lawfully acting on his behalf or any
member of the service police in the execution of his duty, is tried by a Court Martial and on conviction
thereof, may be punished to fourteen years' R.I. and if not on active service to five years' R.I. or less
punishment as may be prescribed in the Army Act. Section 89 of the Army Act relates to dissolution of
Courts Martial. Particular reference was made to subsection (3) thereof, which prescribes that the
officer who convened a Court Martial may dissolve the same on account of death/illness of the accused
or impossibility of the trial to continue. This section confers very vide power on the convening officer
to dissolve the Court although he is otherwise answerable for abuse of his power to his superiors.
Reference to the above sections was made to demonstrate that the Courts Martial as well as the Military
Courts created under the Ordinance, to which the provisions of the Act and the Rules made thereunder
are applicable, are subordinate to the Executive and not subject to the control and supervision of the
High Court. Mr Aitzaz Ahsan further submitted that the Military Courts are under no obligation to
assign any reason while convicting or acquitting an accused of the offence charged. Their tenure and
terms and conditions of service are also regulated by the Executive. On these premises it was argued
that the creation of the Military Courts offended the amended provisions of Articles 175, 203 and 205
of the Constitution. Reference was also made to the provisions of U.S. Constitution, particularly,
Article 1, relating to legislative powers; Article II concerning executive powers; and Article III, section
l whereof states that judicial power is vested in one Supreme Court, as is the case in our Constitution as
contemplated by Articles 175, 203 and 205 of the Constitution.
26. Mr: Aitzaz Ahsan also relied on the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD
1998 SC 388, to contend that it is for the Court to decide that a particular person under the law is a
terrorist and even a terrorist has a right to be prosecuted and charges to be proved against him
according to law. This is not the authority of the Executive, directly or through the Military Courts or
any Agency to give a decision in this regard. It is the domain of the Courts alone to decide the offence
committed by a particular person in accordance with law. He argued that there was no legal sanction
behind the creation of Military Courts and in any case the creation and functioning of the Military
Courts. under the Ordinance is not a permanent solution of the widespread violence prevailing in the
Province of Sindh and in other areas of Pakistan. He argued that although according to the learned
Attorney-General, the killing was significantly reduced from 1472 to 141 up to June, 1996 but there is
no improvement in the law and order situation. Reliance was also placed on Niaz Ahmed Khan (supra),
to contend that the expression "Martial Law" does not find any place in the Constitution, therefore, on
the direction issued by the Federal Government under Article 245 of the Constitution, the Armed
Forces in the purported 'aid of civil power' cannot replace the Civil Courts. Reference was also made to
Article 237 corresponding to Article 34 of the Indian Constitution to contend that the present
Constitution does not provide for making laws validating any sentences passed, punishment inflicted
and forfeiture ordered by the Military Courts unlike the provisions of Article 34 of the Indian
Constitution, which makes a provision for indemnifying acts during Martial Law but the Constitution
of Pakistan does not envisage the imposition of Martial Law. It also does not envisage the exercise of
the Armed Forces of any judicial functions. Article 245 merely relates to the functioning of the Armed
Forces "to act in aid of civil power" and not in replacement thereof.
Reliance was placed on the following decisions from the Indian jurisdiction A.K. Gopalan v. State of
Madras AIR (37) 1950 SC 27, wherein it has, been observed that Article 9 of the Constitution presents
an example of the fusion of procedure and substantive rights in the same provision and that a man's life
and personal liberty can never be taken away save 'by due process of law or by authority of law'. Smt.
Maneka Gandhi v. Union of India AIR 1978 SC 597, wherein the meaning and content of the phrase
'personal liberty' as used in Article 21 of the Indian Constitution, has been dealt with at length.
Reliance was also made to Smt. Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299, wherein it
was held that judicial power could not be exercised by Lok Sabha. The relevant passage of the report,
reflecting the majority judgment, reads as under:-
"60. It is true that no express mention is made in our Constitution of vesting in the judiciary the judicial
power as is to be found in the American Constitution. But a division of the three main functions of
Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the
State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in
their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also
since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be
shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should
pass to or be shared by the Judiciary. "
27. Reference was made to 'Criminal Law, Criminology and Criminal Administration', Edited by K.D.
Gaur, to contend the effect of laws that provide punitive. retributive and deterrent sentences. In the said
book, under the caption: Theories of Punishment by K.S. Chabra, various theories of punishment in
various ages, have been dealt with:-
FIRST THEORY OF PUNISHMENT:
"The idea that the element of expiation should deliberately enter punishment is rejected by many ... ... ."
"The theory of expiation thus presents practical difficulty in the matter of assessment of quantum of
punishment which may be equal to and which may be capable of washing off, the moral guilt. It puts on
the Judge work incapable of accomplishment by human agency. On the point of stopping offender from
repeating the crime, apart from uncertainty about repentance, one after undergoing punishment may
feel that he had paid the debt and therefore undertake further debt of committing crime again without
much weight on his conscience."
SECOND THEORY OF PUNISHMENT:
"Turning now to the second theory of punishment, i.e., retribution, .it is, as already stated, linked with
the concept of expiation in so far as both are to some extent concerned to restore a balance. However,
whereas the account which is being squared when a crime is expiated is felt to be, firstly, a normal
account, and secondly, an account personal to the offender (in that he has the opportunity to purge his
guilt), with the notion of retribution the interests of the injured party enter into the balance. Retribution
is revenge for an injury.
Such arguments, together with the growing realization that those who commit crimes are not always
free agents but are to some extent at any rate, at the mercy of Constitutional and environmental factors,
have lead to decline in the importance of the doctrine of retribution, Sir Leo Page says:
'Violence is the child of violence and that useless punishment produces in the offender, not a spirit of
meek contribution but one of implacable hostility which, by making his reformation more difficult
injures not only him but the whole community.
'We are driven irresistibly to the conclusion;, he says and here he quotes the great criminologist De
Quiros--'that the old notion simple retribution, like extent flora and founa, has no place in our modern
world.'
……………………….……………………….……………………….……………………….”
THIRD THEORY OF PUNISHMENT
"Taking up the third justification of punishment, viz. Deterrence, here for the first time we are
concerned with something that is aimed at the protection of the society. By making certain action a
punishable offence, we expect that people will refrain from committing the offence through fear of
punishment. However, the fact that people nevertheless continue to commit the offence is itself a proof
that deterrence does not act universally and with everyone alike.
In the matter of infliction, the punishment as a deterrent is expected to serve two-fold purpose:
individual and general. The object is to teach the offender a lesson so that he will be deterred from
repeating his offence; but it is also to demonstrate to the potential offender the consequences if he
violates the law. Logically it ought to follow that the more severe the punishment, the more certain the
deterrent effect. Yet the whole history of penal law shows that the severity of punishment did not
curtail the volume of crime. In the time of Queen Elizabeth I, for instance, it was a capital offence to
pick pocket. Yet the preamble of an Act of her reign sets out that pick pockets were to be seen busily
plying their trade amongst the crowds which gathered to watch the executions of other pick pockets
who had been caught and condemned to die for pick pocketing."
Punishments were made severer in order to cover up weakness in the detective machinery. In a system
where the agency for detection and machinery for prosecution is weak, the chances of offending with
impunity are many and bolder spirits will take the risk. Such a position is generally taken as one of the
justification of a policy of terror which is calculated to set against the chances of escape, the dread of
the awful consequences if the delinquent is apprehended. The experience of the 19th Century, as
already indicated, has made it clear that severity of punishment has a strictly limited effect. Explanation
for this is to be found in the generally accepted view amongst the psychiatrists that a common
predisposing factory in crime is a deep seated and often unconscious grudge or resentment against
society working in the mind of the criminal. The deterrent effect of severity is outweighed by
fortification of this resentment and this resentment rather increases after experiencing the severe
punishment. This in turn works to the detriment of community."
"Another way, of looking at the things is that the belief it. the value of deterrence rests on the
assumption that we are rational beings who always think before we act and then base our actions on a
careful calculation of the gains and losses involved. These assumptions, dear to many Lawyers have
long since been abandoned in the social sciences. No economist would seriously maintain them today
and even to the uninformed the movement of shares on the Stock Exchange, where we might expect to
see Benthem's principle of enlightened self-interest vindicated most clearly, demonstrate that men's
actions are governed quite as much by greed as by reason; and that the ability to ignore hard facts, and
to see only what one wants to see is shared by a large section of the community."
……………………….……………………….……………………….……………………….
A programme of reformation or rehabilitation must contain both positive and negative elements, both
pleasure and pain, and both persuasion and authority, and to be most effective it must be based on
intensive study of the individual' ... ..... ... ... 'The resolution of this apparent
contradiction is one of the major problems confronting believers in the reformative theory. Further,
there are certain individuals, for example, the professionals who are very intelligent and skilful, in
whose case there is not much scope for their reformation Reformative theory looks dubious in its
operation in such cases. These difficulties detract from reformative theory being made sole basis for
punishment. "
In the said book under Chapter 51, captioned as: "German Criminal Law Relating to International
Terrorism" authored by Jurgen Meyer, at page 651, under sub-heading: 'III. Anti-Terrorism laws in the
Federal Republic of Germany', it was observed:-
In the past fifteen years the Germany federal legislature repeatedly has enacted laws in reaction to
terrorist acts of violence. Some criminal law commentators have criticised these efforts as restrictions
on the liberty of all German citizens---"hazard to liberty caused by the endeavour to defend liberty" --
and as a sad sign of the 'shortsightedness' of present day criminal law ... ... ... ... "
At page 653, under sub-heading "IV. Necessity. as a Justification", it was observed:-
"Quite often, both the State and terrorists justify their behaviour with a reference to emergency
conditions, even if such behaviour is contrary to the applicable laws. According to Germany law, the
justification of necessity exists if, after taking into careful consideration all of the conflicting interests
(specifically, the legal values affected and the degree of danger involved) the interest protected by the
emergency act significantly outweighs the interest that is harmed. The emergency defence applies only
if the act is an appropriate measure to avert the danger .
... ... ... ...The injustice to be resisted, however, must be obvious. Moreover, the possibility that all the
remedies currently provided by the legal system would succeed must be sufficiently inadequate to
justify exercising the right of resistance. In more than forty years of the history of the Federal Republic
of Germany, such a situation is yet to arise. "
He also referred to a book entitled: 'The Oxford Handbook of Criminology' Edited by Mike Maguire
and others, published in 1994, where in Chapter captioned as 'Violent Crime' the author has observed:-
" ... .... .... ...how much violent crime of various kinds, including sexual violence, there is (focusing
mainly on England and Wales), the extent to which such crimes have been rising and how violent
crimes can best be explained .. . .. . . . . . . . "
Under sub-heading 'The Culture of Masculinity and Violence Involving the Police' of the above
Chapter, it was observed at page 331 as under:--
”... ... ... To the extent that assaults against the police have been increasing in recent
years, this may also be because police legitimacy in the eyes of the public has diminished--something
which the police acknowledge has happened but do not usually attribute to a general deterioration in
police behaviour -- and/or because the police have become less skilful in the handling of relations with
the public ... ..."
Another Article of the same Book, entitled: "Sentencing" authored by Andrew Ashworth, was also
referred wherein the rationale for sentencing has been dealt with. The Author has explained the scope
and extent of desert or retributive theories of punishment, deterrence theories, rehabilitative sentences,
incapacitative sentences, restorative and reparative and social theories.
Reference was made to another Article captioned as: "The Pendulum of Ideas and the Problem of
Partiality" by Jock Young in Chapter 2 of the said Book under the heading "Incessant Chatter; Recent
Paradigms in Criminology", wherein it was, inter alia, observed:-
.. ... .. ...If you want to change the crime rate profoundly then you must profoundly change society. In
the end, moral barometers arc most easily affected by changes in political climate. One person
steadfastly resists change; the other hoped for it but reluctantly surmised that such change was
unlikely." ,
At page 1 18 of the same Article, it was observed:-
“... ... ... ... ...To tackle crime, interventions have to be made on the level of family support,
employment, youth facilities, design change, changes in police patrol methods, target-hardening, victim
support, and so on, involving many agencies including local authorities, the police, voluntary groups,
educational authorities, and more. Such a coordination must be democratic in its nature and attempt to
effect the. distribution of economic resources and judicial decisions. The etiological crises is not solved
simply by more money or better conditions, but by resources distributed equitably as part of a just
politics. Such a policy of reform demands coordination, a democratic multi-agency approach, and
careful monitoring. It is only where justice is seen to be done that the mainsprings of crime are
severed."
ARGUMENTS OF LEARNED ATTORNEY-GENERAL
28. Ch. Muhammad Farooq, the learned Attorney-General for Pakistan, submitted that attributing
every evil to politicians was not correct. He submitted that the establishment of Military Courts was a
temporary measure to meet an extraordinary situation. He also placed certain material on record to
show the factors, which had necessitated the establishment of Military Courts. He further argued that
the establishment of Military Courts in Karachi had brought down the crime rate drastically. While
making a comparison of the present situation with that before the imposition of Governor's rule, he
relied on press reports to show that the law and order situation in Sindh and Punjab had improved. The
learned Attorney-General also referred to a cartoon in an English-language newspaper showing a
human rights activist sleeping when innocent people were being killed, but active when Governor's rule
was imposed.
The learned Attorney-General argued that Government had no intention to create a parallel judicial
system and to deviate from the normal judicial system. He submitted that Military Courts are convened
under Army Act and they are not established Courts as contemplated to Article 175 of the Constitution.
He argued that in 1977 Mini-Martial Law was imposed in-Lahore, which was declared illegal by the
Full Bench of the Lahore High Court. Here, the Ordinance was promulgated in the supreme national
interest and not by way of replacement of the judicial system. After referring to the various provisions
of the Ordinance, the learned Attorney-General highlighted the law and order situation and the history
of crimes, which was prevalent in 1996-97, in October-November, 1998 and before and after 20th
November, 1998. In this regard reference was made to the brief prepared by the Ministry of Interior on
law and order situation and the position before Governor's rule in Sindh, which reads thus:-
" BRIEF ON LAW AND ORDER POSITION BEFORE GOVERNOR'S RULE.
The killings in Karachi due to terrorism and violence increased quite alarmingly since the formation of
Coalition Government on 21-2-1997. The details are as under.
YEAR KILLED
1996 166 (Av:14/m)
1997 396 (Av:33/m)
1998 (Jan-Oct) 640 (Av:64:64/m)"
Category-wise details are at Annexure-I
High Profile Killings
2. The killings in 1997-98 indicated above include some high profile Persons which had a severe
impact on Citizens and socio-economic life of Karachi. It inculcated a sense of fear and insecurity-
These are:
Hakim Muhammad Said. Chancellor. Hamdard University;
Malik Shahid Hamid. Managing Director, K.E.S.C;

Ismail Memon, Chairman, Board of Intermediate and Secondary Education;
Dr Habibullah Mukhtar, Chancellor, Binnori University;
5 Employees of Union Texas including 4 ,Americans;
Zuhair Akram Nadeem, Ex. -M.N.A.;
Muhammad Shaft Qureshi (Injured/Paralysed) Secretary Health;
Abdul Bashir Shaikh, N.E.N. District Municipal Corporation;
Two Iranian Engineers;
Sultan Mehmood Khan, Superintendent Customs;
Naeem Hashmi, President PPP, Karachi Central;
Muhammad Sabir, Chairman, Khidmat Committee.;
Muhammad Hussain Budha, Vice-President PPP;
Dr. Syed M. Farooq, Director Health Services, KMC;

Abdul Waheed Qadri, Leader Sunni Therik;
Saleem Raza, Leader Sunni Therik;
Shan Haider Zaidi, Director K.M.C.;
Syed Hasnain Abbas Zaidi, Advocate;
Shahid Zafar-ul-Islam, Director P.I.A. (Injured);
Raja Sardar, Special Public Prosecutor; ,
Mohamood Shahid Qureshi, Assistant Director, K.M.C.
Sajjad Hussain, Ex-Chairman, Pakistan Steel Mills;
Farid Ahmed Shaikh, Assistant Director, K.M.C.;
Badar-ud-Duja, Assistant Director, K.M.C.;
Safar Ali Bangash, Leader, T.J.P.
KILLINGS OF MEMBERS L.E.AS.

3. Following personnel of Law Enforcement Agencies were killed due to terrorism during the same
period:-
S.I. Kashif son of Aziz-ur-Rehman, S.P. with his brother.
DSP Aslam Kiyani.
S.P. (Retd.) Zafar Ali Mehdi
Major Khalid Zaman and DSR Mehmood-ul-Hasan of . Rangers (Injured).
S.I. Sohail Afzal.
PDSP Syed M. Shamim Hussain.
Lady Inspector Farrukh Sultana.
Two Jawans of Pakistan Army.
A number of, HCs-PCs,
"BOMB BLASTS
4. There were 65 bomb blasts during last twenty months of Coalition Government killing 59 people and
251 injured."
STRIKE CALLS
5. There were nine formal strike calls and 5 informal strike calls during twenty months of the coalition
as under:-
MQM 3
Tip 1
Sunni Therik/MQM(H) 1
J.S.Q.M. 3
S.S.P./Ulemas 1
As a result thereof, business suffered for 22 days causing serious damage to life and property. The
details are given below:-
Persons Killed 20
Persons Injured 71
Vehicles Burnt 155

Shops Burnt 20
Stalls Burnt 6
Bank Burnt 1"
BLOCKADE OF NATIONAL HIGHWAY AND RAILWAY TRACK
6. Frequently, MQM and Nationalist groups, resorted to blocking of National HIGHWAY and Railway
track disrupting vehicular and railway traffic which indicates lawlessness and erosion of Government's
writ badly affecting the economic artery of Pakistan.
GENERAL CRIME:
7. Likewise situation in the interior of Sindh deteriorated to a large extent reflected below:
YEAR DACOITIES ROBBERIES
1996(full year) 551 1886
1997 474 1807
1998 (31st Oct) 454 (Av: 45/m) 1833 Av:183/m)"
"KIDNAPPING FOR RANSOM/ABDUCTION

YEAR KIDNAPPING PERSONS
FOR RANSOM KIDNAPPED/
(Cases) ABDUCTION
1996 87 911
1997 84 869
1998(31st Oct) 80(Av:8/m) 735(Av:74/m)"
"VEHICLE THEFT/SNATCHING
The vehicle theft/snatching broke all records of last five years. According to data compiled by
C.P.L.C., the details are as under:
YEAR VEHICLES STOLEN/SNATCHED
1996 3714 (Av:309)/m)
1997 5730 (Av:478/m)
1998 (Jan-Oct) 6026 (Av:602/m)
Maximum vehicles stolen/snatched were in October, 1998 (which was 742. Similar trend was
witnessed in Motorcycle theft:
YEAR MOTORCYCLES THEFTS
1996 4418 (Av: 368/m)
1997 7241(Av: 603/m)
1998 (Jan-Oct) 6792 (Av: 679/m)".
"POSITION AFTER GOVERNOR'S RULE
After the imposition of Governor's Rule, killing due to violence has declined an average of 64 persons
per month, during the, first 10 months to 12 during the last two months:
November 1998 8
December 1998 16
January 1999 (23rd) 7
10. The break-up of 31 men killed during November and December 1998 is as follows:
Army 3
Police 2
Others 26
Out of these, 12 were killed in Liaquatabad area, 2 in Gulbahar, 1 in New Karachi, 3 in Sharifabad, 1 in
Buffer Zone (19 in District Karachi Central), 1 in Baldia 1 in Mangopir, 1 in Mominabad, 1 in Orangi
(4 in Karachi West), 3 in Jamshed Quarters, 1 in New Town, 1 in Korangi, 1 in Shahrai Faisal (6 in
District Karachi East) and 1 in Mehmoodabad, 1 in Preedy (2 in District Karachi South).
Likewise, there has been decrease in other crime also as reflected below:
Dacoity:
Was reduced from an average of 45 per month during the first ten months to 43 during last two months
of 1998 and only 20 in January, 1999 as on 15-1-1999.
Robbery:
Declined from an average of 183 per month during the first ten months to 148 during last two months
of 1998 and 58 in January, 1999 as on 16-1-1999.
Kidnapping/Abduction:
Was reduced from an average of 74 per month during the first ten months to 59 during last two months
of 1998 and 25 in January, 1999 as on 15-1-1999.
12. The car-snatching and theft has declined from an average of 602 per month to 393 per month and
Motorcycle Snatching and Theft decreased from 679 per month to 404 per month during the first 10
months and last two months of 1998 respectively.
VEHICLE THEFT:
VEHICLE NOVEMBER DECEMBER JANUARY
Cars 415 371 189
%age Recovery 52% 56% 42%
Motorcycles 387 421 203
%age Recovery 34 % 35 % 32 % "
BHATTA COLLECTION:
13. There has been drastic decrease in complaints from the public/community regarding Bhatta
Collection.
CLEARANCE OF 'NO GO AREAS':
14. It had been a major issue as militants of various groups had constructed barricades and trenches for
terrorism. A special compaign was launched and all barricades have been removed and trenches filled.
Now there is free movement of public.
SENSE OF SECURITY:
15. Speedy justice and expeditious disposal of cases after the invocation of Article 245 has restored the
confidence of the people and has provided:
(a) A sense of security to general public.
(b) Strength to the public to appear as witnesses in criminal cases.
(c) reassurance to people that writ of law still exists.
It was after a long time that Karachi witnessed jubilation and fervour on Eid. Business activity is
picking up pace and there are visible signs of restoration of economy. General public is providing
information and assistance to Law Enforcement Agencies in apprehending the criminals and seizures of
armaments as indicated below:
Weapons Recovered 963
Explosive Bomb 1.4 KG
Anti-Tank Grenade 1
Rocket Launcher 2
Rocket Booster 1
Rockets 4
Hand Grenades 17
L. M. G. 2
K. K. 90
Rifles. 82
Pistols 609
Revolver 99
Mauser 35
Shotgun 12
Repeater 6
DETECTION OF HIGH PROFILE CASES:'
16. The Police has claimed that those arrested include 65 hardened terrorists leading to detection of 45
high profile cases which also include some of the high profile murders mentioned below:-
Hakim Muhammad Saeed

SDM Nawaz Khushak
Five Police Personnel in Surgani Town
Dr. Mehdi Hasan
Prof. M.A. Kokab
8 persons in Moosa Colony
PDSP Shamim
Ehsan Shah b/o Ex-CM Abdullah Shah
Naseem Hassani, District President PPP
Ismail Memon, Chairman, BISE
Muhammad Salahuddin, Editor Takbeer
Lady Inspector Farrukh Sultana
Shahid Hamid, MD KESC

Major R. Shah Nawaz Toor (American Consulate General.
Zuhair Akram Nadeem, Ex-MNA
DSP Hakim Tanoli
Bomb Blast at Sessions Court, Sukkur
A number of Policemen murdered due to terrorism
SHO Ch. Aslam. "
29. Reference was also made to the various newsy reports, editorials, views expressed by different
personalities on the law and order situation in the, country and, in particular, in Sindh Province,
published in different newspapers journals, etc., 'headlines' whereof are reproduced as follow:-
NEWS REPORTS FROM ENGLISH NEWSPAPERS:
"Six killed in city gunbattle" was the title of news published in 'Dawn', Karachi dated 9-5-
1996: the same Daily on 10-5-1996 printed a news entitled: "MQM threatens strike for
Sunday"; followed by another news captioned as "MQM strike today" on 12-5-1996. The said
newspaper published another news item under the title: "Strike observed in interior Sindh on
MQM's call". The above newspaper further went to publish a series of news in its different
issues regarding killing, robberies, etc. on different dates which are thus: "Cop, youth killed;
10 robberies committed" dated 26-7-1996, "Bandit killed in shootout; five dies in accidents"
dated 27-11-1996; "Drug peddlers kill young man; 26 robberies in a day" dated 29-11-1996;
"Man shot dead in Azizabad" dated 2-12-1996; "Three gunned down in different areas" dated
11-12-1996; "Man shot dead; private. firm looted" dated 1-1-1997; "Suspect wounded in
shootout" dated 8-1-1997; "Vendor murdered; several houses looted" dated 14-1-1997; "Two
killed, three injured in city" dated 25-1-1997; "One shot dead by bandits; two die in accidents"
dated 27-1-1997; :Two shot dead; for drug addicts found dead" dated 28-1-1997; "Two
labourers, shopkeeper shot dead" dated 31-1-1997; "Five killed, 50 injured in violence" dated
4-2-1997; "Bandit killed in encounter; four die in accidents" dated 12-2-1997; "Cop dies in
shootout; Rs.1.2m looted from manager" dated 14-2-1997; "Four killed, three hurt in sniping"
dated 2-3-1997; "One killed three injured in Karachi explosion" dated 13-3-1997; "3
murdered; bandits' strike at six places" dated 16-3-1997; "Five killed in shootings; three dies in
accidents" dated 22-3-1997; "Bank robbery foiled; woman killed in accident" dated 27-3-1997;
"Man shot dead; 13 robberies committed" dated 3-4-1997; "Cash, jewellery looted, SDM's van
stolen, recovered" dated 5-4-1997; "Two killed in shootings" and "Forty-five vehicles taken
away" dated 9-5-1997; "Two bandits shot dead; 13 robberies committed" dated 10-4-1997;
"Three shot at in city" dated 28-4-1997; "Haqiqi man killed, MQM worker injured" and "15
robberies in a day" dated 1-5-1997; "Body of College student found in gunny bag" dated 7-5-
1997; "Carjacker shot dead in encounter" dated 8-5-1997; "1 killed, 4 injured in firing
incidents" dated 17-5-1997; "Doctor shot dead; houses looted" and "Two persons shot dead"
dated 20-5-1997; "Husband murders wife; houses looted" and "Haqiqi worker shot dead
another hurt" dated 27-5-1997; "Police catching stolen cars will get cash rewards" and "2
dacoits arrested in Landhi" dated 28-5-1997; "Five killed in various incidents" dated 30-5-
1997; "Six injured resisting robbery attempts" and "Two shot dead in different .areas" dated
31-5-1997; "Two killed, 19 injured in Malir explosion" 1-6-1997; "Two persons shat dead in
Baldia Town" 2-6-1997; "MQM activist among 2 shot dead" 4-6-1997; "Fourteen hold-ups
committed in the city" and "Man killed, two bodies found" and "2 Haqiqi men shot dead"
dated 7-6-1997; "Four shot dead in different areas of the city" dated 8-6-1997; "Two killed,
seven injured in violence" dated 9-6-1997; "Three shot dead" dated 10-6-1997; "Five die as
violence escalates in Karachi" dated 11-6-1997; "Policeman killed in encounter" and "13 cars,
nine bikes taken away" dated 13-6-1997; "Four murdered, three shot at by bandits" and MQM
man shot dead" dated" 14-6-1997; "Three bodies found in city" dated 15-6-1997; "9 more
killed in Karachi violence" and "3 kidnapped for ransom" dated 19-6-1997; "Gang of car
thieves busted: three arrested" and "Man shot at in N. Karachi" "Two houses, travel agency
looted" dated 21-6-1997; "Two killed, one injured in drive-by shooting" dated 22-6-1997;
"MQM activist wounded" dated 24-6-1997; "Five die in Landhi explosion" dated 29-6-1997;
"Three shot dead, one injured in city" dated 1.7-1997; "Four killed in Karachi violence" and
"Twelve vehicles taken away" dated 5-7-1997; "KESC chief, gunman and driver killed in
ambush" dated 6-7-1997; "Cop dies in shootout with dacoits" and "13 vehicles taken away"
dated 6-7-1997; "11 students wounded in group clash" and Cash, jewellery, valuables looted in
different areas" dated 8-7-1997; "3 dacoits killed in encounter one held" and "Four shot dead in
various incident$" dated 8-7-1997; "12 vehicles taken away in city" dated 9-7-1997; "DSP's
two sons, three others gunned down" dated 12-7-1997; "Man shot dead iri Korangi" and
"Factory manager robed of Rs.880,000 "dated 13-7-1997; "Vehicles, jewellery, cash looted in
14 robberies" dated 15-7-1997; "Suspect in Orangi massacre held" and "Man shot dead by
bandit, KMC official killed" dated 18-7-1997; "Two shot dead, nine vehicles taken away" and
"Policeman shot dead in Gulshan" dated 22-7-1997; "Two young men. gunned down" and "Six
cars, 17 bikes taken away" dated 23-7-1997; "MQM worker shot dead, another wounded" and
"27 vehicles, cash, jewellery looted" dated 24-7-1997; "Two arrested with seven hand-
grenades" dated 25-6-1997: "4 injured by bandits, 14 vehicles taken away" dated ,r 26-7-1997;
"Sever, murdered in various areas body exhumed" and t Rs.700,000 looted in three robberies"
dated 29-7-1997; "Robber killed, cop injured in shootout" and "Two shot dead" dated 31-7-
1997; "Bullet-riddled body found two injured in group clash" dated 3-8-1997; "Four shot dead
in city violence" dated 4-8-1997; "DSP, another shot dead in Malir tiring" dated 5-8-1997:
"Cop bandit injured in encounter post office looted dated 6-8-1997; "Houses looted, 16
vehicles hijacked" and "6 killed in shootings" dated 7-8-1997; "Child killed for Rs.500 four
injured in violence" dated 9-8-1997; "Thirty-two vehicles taken away" and "Trader shot dead,
cop arrested for killings" dated 21-8-1997; "10 vehicles hijacked" dated 23-8-1997; "7 killed in
Karachi violence" dated 26-8-1997; "38 vehicles taken away, several houses looted" dated 28-
8-1997; "28 vehicles hijacked" dated 29-8-1997; "Dacoits on the rampage, ,16 holdups, 25
vehicles stolen" and Two killed, two injured in shootings" dated 30-8-1997; "Constable killed
by three suspects" dated 8-9-1997; "12 vehicles hijacked" and "Man killed in attack on wife,
trader looted" dated 9-9-1997; "5 killed in accidents, shopkeeper shot dead" dated 10-9-1997;
"Busted gang planned to kidnap tycoons; DIG" dated 19-9-1997; "Two gunned down" dated
20-9-1997; "Three killed in different incidents" 22-9-1997; "Terrorist arrested" dated 23-9-
1997; "Four murdered, five gun-runners held" dated 27-9-1997; "Five killed, four wounded in
city" dated 4-10-1997; "MQM fears Haqiqi attack on Liqauatabad" dated 4-10-1997, "Man
shot dead in Gulbahar" dated 6-10-1997; "Young man's body found" and Bandits fire at PML
activist" dated 9-10-1997; "Motorcyclist shot dead, 7 houses looted" 10-10-1997; "Rs. 1.2m
looted from bank officer" dated 12-10-1997; "Drug den busted, man arrested; 127 arrested for
various crimes" dated 14-10-1997; "Ten robberies committed" dated 15-10-1997; "Cop,
woman among 4 killed" dated 18-10-1997; "Two MQM men gunned down" dated 23-10-1997;
"Bullet riddled body found" dated 24-10-1997; "Two killed, three hurt in different incidents"
dated 29-10-1997; "Three killed, five house robberies committed" dated 2-11-1997; "Uneasy
clam prevails in parts of Karachi" 7-11-1997; "Three killed in Khokhrapar as tension persists"
dated 11-11-1997; "Boy killed, four injured in shootings" dated 12-11-1997; "Man murdered,
4 bandits arrested after shootout" dated 14-11-1997; "2 bullet riddled bodies found" 22-11-
1997; "Dacoits gang busted in Clifton" dated 24-11-1997; "Custom officer's wife killed as jeep
attacked" dated. 27-11-1997; "2 MQM workers killed, 2 injured in attacks" dated 1-12-1997;
"Two bullet riddled bodies found, worker killed in accident" "20, vehicles taken away" dated
5-12-1997; "Five killed, four injured in various areas" dated 6-12-1997; "Thirty-two vehicles
taken away" dated 10-12-1997; "2 bullet-riddled bodies found, 2 workers killed" dated 10-12-
1997; "Dacoits take away cash, jewellery and 30 vehicles" dated 12-12-1997; "Body found in
gunny bag, two killed in accident" dated 13-12-1997; "3 killed in accidents, 25 vehicles
hijacked" dated 12-12-1997; "Motorcyclist killed, two addicts found dead" dated 24-12-1997;
"Six killed in two days in city" "41 vehicles taken away in two days" dated 27-12-1997.
30. From 1st October, 1998 till 20th November, 1998, the law and order situation in Sindh, as depicted
by "DAWN' in its issues during this period is as follows:--
"Four more killed, three wounded in shootings" dated 1-10-1998; "Two MQM men shot dead in
Karachi" dated 1-10-1998; "KMC official among three killed in Karachi" dated 2-10-1998; "Six more
die in Karachi" dated 3-10-1998; "Another killed in Karachi" "Five killed" dated 3-10-1998;
"Continuing violence claims 8 lives in Karachi" dated 3-10-1998; "Five killed in continued violence in
Karachi" dated 3-101998; "Five shot dead, three perish in accidents" dated 4-10-1998",
"Five killed in Karachi" 4-10-1998. Daily 'The News' published a news item stating that "Violence
claims four more lives in Karachi" dated 4-10-1998. Daily 'The Nation' in its publication dated 4-10-
1998 reported that. "Five killed in Karachi'. 'The Frontier Post' another leading newspaper published a
news item captioned as "Four more die in violence-hit Karachi" on 5-10-1998. 'Dawn' of 6th October,
1998 reported two news items entitled: "Four Muttahida workers among 8 killed in Karachi" and "Eight
killed in Karachi". 'The Frontier Post' in its issue of 7-10-1998 published another news item reporting
that "MQM activists' killings spark violence'. 'Dawn' of the same date published a news item captioned
as "11 killed, 50 vehicles set on fire in Karachi". 'The Frontier Post' in its publication dated 8-10-1998
printed a news heading whereof read thus: "12 killed in new Karachi strike violence, scores of vehicles
burnt". "The News" of the same date captioned that news in the following words: "8 killed as strike
cripples Karachi". 'Dawn' of 9-10-1998 pasted a lead news stating: "Four more killed, three wounded in
violence". 1n its publication dated 10-10-1998, the same newspaper reported a news entitled: "One shot
dead, eight robberies committed".
There was a series of news in the Daily Dawn, Karachi, supported by news of the same nature,
published in other leading newspapers of the y, portraying the law and order situation in Karachi, the
headlines of are reproduced hereunder for reference:-
"DAWN" in its. publication dated 11-10-1998, reported a news which was captioned: "Three killed:
cash, valuables looted in 10 holdups"; "Violence claims five more lives in Karachi" dated 13-10-1998;
"One shot dead eight robberies committed" dated 16-10-1998. "The Frontier Post' published the news
of assassination of Hakeem Muhammad Saeed, in its 18th October, 1998 issue. 'Dawn' dated 19-10-
1998 printed a news entitled: "Cop among three killed in city violence"; "The Nation" dated 21-10-
1998 reported a news captioned: "Commission proposed to protect Karachi‟ites'. The Frontier Post in
its issue dated 22-10-1998 reported; "Federal Cabinet meets today in Karachi". 'Dawn" dated 25-11-
1998 reported another news item, which had the following heading: "Colombian experts fired upon".
The News of the same date published a news captioned: "Colombian experts escape terrorist attack".
The Frontier Post in its issue of 27-10-1998 printed another news item stating: "Two cops among seven
killed in Karachi violence". The National reported a news in its publication of 28-10-1998, which was
entitled: "Two blasts tock Karachi". Lastly the Dawn in its publication of 31st December, 1998,
reported a news under the title: "14,306 vehicles taken away in 1998".
NEWS REPORTS FROM URDU NEWSPAPERS
31. The learned . Attorney-General placed reliance on the Full Bench judgment of Sindh High Court in
the case of Khalid Malik v. Federation of Pakistan (PLD 1991 Karachi 1). State through Advocate-
General, Sindh, Karachi v, Farman Hussain (PLD 1995 SC 1), Mehram Ali v. Federation of Pakistan
(PLD 1998 SC 1445), Brig. (Retd) F.B. Ali v. The State PLD 1975 SC 506).
31. At this stage, Ch. Muhammad Farooq, learned Attorney-General raised the following contentions:-
(i) Whether the Ordinance XII of 1998 has been promulgated by the Legislature with lawful authority
and under the mandate of the Constitution?
(ii) Whether invocation of Article 245 and the legislation framed thereunder providing for convening of
Trial and Appellate Courts under the Army Act is violative of and offends the provisions of the
Constitution relating to fundamental rights, particularly, Articles 4, 9 and 25?
(iii) Whether Ordinance XII of 1998 violates any provision of Articles 175, 202 and 203 of the
Constitution and is within the scope and scheme of the Constitution'?
(iv) Whether Ordinance XII of 1998 is in the nature of a comprehensive direction/law defining the
limits of exercise of power by the Armed Forces in aid of civil power while the full control whereof is
retained by the Federal Government and whether such a direction/law is within the intent and spirit of
Article 245 and not subject to challenge under clause (2) of Article 245 of the Constitution?
(v) Whether the Courts intended to be convened under the Army Act and Ordinance XII. 1998. under
the combined application are those Courts which are not envisaged under Article 175 and, therefore. hit
by Article 175 and earlier judgments of this Court on the point in issue?
(vi) Whether any person has a vested right in a forum of trial, especially when procedure provided in
the Army Act for holding trials and right of appeal having been given, it has been held that the same is
in accordance with principle of a fair trial;'
(vii) Whether the Armed Forces when they have been called 'to act in aid of civil power' can be
denuded with the powers, functions and authority, lawfully conferred upon them under the Army Act
and whether convening of the Court under Ordinance XII of 1998 is only an incidental and ancillary to
aid that the Armed Forces have to render under the mandate of the Constitution under Article 245?
(viii) Whether the term 'aid' employed in Article 245 means only help, assistance, support and strength
to the existing system and not its replacement or supplantation and whether the term 'civil power' would
mean the power or authority of a free political community vesting in the Federation of Pakistan?
(ix) Whether Ordinance XII of 1998 militates in any manner against the principle of trichotomy of
power?
(x) Whether any Fundamental Right under Article 17 of the Constitution vesting in any political party
or any member thereof can be alleged to have been violated by the promulgation of Ordinance XII of
1998 and whether any question of public importance in relation to any Fundamental Right of
petitioners stands raised in the present petitions to warrant adjudication by the Supreme Court under
Article 184(3) of the Constitution?
(xi) And whether Article 8(3) of the Constitution read with Article 148(3) does not make the petitions
incompetent and non-maintainable.
33. Learned Attorney-General contended that a perusal of Items Nos. l, 55 and 56 in the Fourth
Schedule of the Constitution imply that the power to make a law for deployment of the Armed Forces
in aid of the civil power and convening of the Courts under the impugned Ordinance also includes the
power. of the Federation to direct the Armed Forces to render aid to the civil power so that normalcy of
law and order is fully restored and it does not have the effect of supplanting, replacing or substituting of
the Courts established under Article 175 of the Constitution.
It would be advantageous to reproduce Items Nos. l, 55 and 56 of the Fourth Schedule of the
Constitution:-
Item No. 1:
The defence of the Federation or any part thereof to peace or war, the military, naval and air forces of
the Federation and any other armed forces raised or maintained by the Federation; any armed forces
which are not forces of the Federation but are attached to or operating with any of the Armed Forces of
the Federation including Civil Armed Forces; Federal Intelligence Bureau; preventive detention for
reasons of State connected with defence. external affairs, or the security of Pakistan or any part thereof;
persons subjected to such detention; industries declared by Federal law to be necessary for the purpose
of defence or for the prosecution of war.
Item No.55:
Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in
this List and, to such extent as is expressly authorised by or under, the Constitution, the enlargement of
the jurisdiction of the . Supreme Court, and the conferring thereon of supplemental powers.
Item No.56:
Offences against laws with respect to any of the matters in this Part.
He argued that the provisions of Article 245 should not be read in isolation but together with the above
items and Article 148(3) of the Constitution, which enjoins Constitutional duty upon the Federation to
protect every Province against external aggression and internal disturbances and to ensure that the
Government of every Province is carried on in accordance with the provisions of the Constitution. He
further submitted that the expression external aggression and internal disturbances has also been used in
Article 232 of the Constitution providing for proclamation. of emergency on account of war, external
aggression, internal disturbances etc. The submission was that the impugned Ordinance was
promulgated bona fide and was not a colourable legislation or fraud on the Constitution. The internal
law and order situation prevalent in Sindh and particularly, in Karachi and some other parts of the
country posed a great threat to the security of Pakistan and the situation could only be controlled by the
Federal Government in consonance with the mandate of the Constitution to direct the Armed Forces to
come in aid of the Civil Power to restore peace and normalcy.
34 learned Attorney-General argued that the Armv Act is a self-contained Code to all respects and deals
with matters relating to discipline in-the Army. Offenders are punished immediately. He further
submitted that- it also provided a machinery for accountability of the Armed Forces with respect to
performance of their functions. He submitted that some civilians, subject to law, could also be tried
under the Act. Quoting an example he referred to the case of late. Hamayyun, a journalist, who was
tried two years ago for his alleged actions for assistance of the enemy. under the Act but his
punishment was later commuted. He highlighted the types of Courts contemplated under the Army Act
namely District Court Martial. Field General Court Martial, Summary Court Martial and General Court
Martial- He reiterated that the Military Courts convened under the Ordinance were intended to
strengthen the existing judicial system and not to supplant it. He said that to view of the widespread
terrorist activities there is no bar under the law to try the terrorists for heinous crimes by the Military
Courts convened under the Ordinance, which is not applicable to all citizens of Pakistan but to a special
class of offenders alleged of committing offences mentioned in the Schedule attached to the Ordinance.
The precise submission was that the Military Courts were not 'established Courts' contemplated by
Article 175 of the Constitution but were merely a temporary arrangement in the supreme national
interest. The submission was that the Military Courts did not form part of the existing judicial
hierarchy. These Courts, it was submitted, are convened when required and dissolved after the
completion of the trial.
35. Learned Attorney-General further reiterated that Article 148(3) of the Constitution was a mandate
for the Federal Government to protect the Provinces against external aggression, internal disturbances
and the same is the spirit contained in Article 232, which provides for Proclamation of Emergency in
case of external aggression, threat of war and internal disturbances, etc. He submitted chat the vires of
the impugned Ordinance be decided on the touchstone of Article 148(3) of the Constitution, which
impose a Constitutional mandate on the Federal Government to protect the Provinces against external
aggression, threat of war and internal disturbances. The precise submission was that in terms of Article
45 of the Constitution read with Items Nos.1, 55, 56 and 59, laws relating to defence of the country can
be made during the peace period as well as war or when the integrity of the country is threatened on
account of internal disturbances. Here, it was contended the Military Courts were convened to cater a
temporary emergent need to restore peace in the country.
Explaining the scope of Article 245 of the Constitution the learned Attorney-General argued that it
consisted of two parts. In the first part the Armed Forces under the directions of the Federal
Government are required to defend Pakistan against external aggression or threat of war; and under the
second part the Armed Forces are required "to act in aid of civil power" when called upon to do so by
the Federal Government, subject to law. He submitted that decision in this behalf is to be taken by the
Executive Authority as well as the Legislature. He quoted the provisions of sections 129 to 131-A of
the Cr.P.C. to show that even a Magistrate is empowered to call the Armed Forces "to act in aid of civil
power". He further argued that in this respect there may be a pre-existing law or post-existing law to
enable the Army "to act in aid of civil power". In the former case, the directions may be given orally
while in the latter case the directions of the Federal Government to the Armed Forces "to act in aid of
civil power", are subject to law, enacted for the purpose. He emphasised that when the aid is required
the guilt, quantum and nature is to be seen and if the pre-existing law was not sufficient to cater the
need additional law may be enacted as has been done with the promulgation of the impugned
Ordinance. Explaining the meaning of the phrase "to act in aid of civil power' reference was made to
the dictionary meanings. He referred to Stroud's Judicial Dictionary, wherein at page 42; it has been
explained as under:-
"(10)(a) Act done in pursuance. 'etc. of any public duty (Public Authorities Protection Act, 1893 (c.61),
S.1): see PURSUANCE "Act done" in pursuance of Act of Parliament: see Myers v. Bradford
Corporation (1915) 1 K.B. 417: see Craigola Merthyr Co.Ltd, v. Mayor. etc. of Swansea (1929) A.C.
344."
In the same Dictionary, the phrase, "Usurped Power" has been defined in the following words:-
USURPED POWER. "Usurped power' may have a great variety of meanings according to the subject-
matter" (per Wilmot C.J., Drinkwater v. London Assurance 2 Wils. 363); in an exception to a fire
policy of "invasion by foreign enemies, or any military or usurped power" , . it means "an invasion of
the kingdom by foreign enemies to give laws and usurp the Government thereof, or an internal armed
force in REBELLION assuming the power of Government and making laws and punishing for not
obeying those laws" (per Bathurst, J., ibid.; it was accordingly there held (Gould, J., dissenting) that a
tumultuous and destructive rising by a mob to reduce the price of provisions, was not a "usurped
power" within the exception. See hereon White etc. Ltd. v. Eagle, Star & British Dominions Insurance
Co. 38 T.L.R. 615; War. Cp CIVIL COMMOTION.'
In Black's Law Dictionary, 5th Edition, at page 24,, the word 'Act' has defined as follow:-
"Act" n. Denotes external manifestation of actor's will Restatement. Second, Torts SS 2. Expression of
will or purpose; carries idea of performance; primarily that which is done or doing; exercise of power,
or effect of which power exerted is cause, a performance; a deed: In its most general sense, this noun
signifies something done voluntarily by a person; the exercise of an individual's power; an effect
produced in the external world by an exercise of the power of a person objectively, prompted by
intention, and proximately caused by a motion of the will. In a more technical sense, it means
something done voluntarily by a person, and of such a nature that certain legal consequences attach to
it. Thus a grantor acknowledges the conveyance to be his 'act and deed,' the terms being synonymous. It
may denote something done by an individual, as a private citizen, or as an officer, or by a body of men,
as a Legislature, a council, or a Court of Justice; including not merely physical acts, but also decrees,
edicts, laws judgments resolves, awards, and determinations. Some general laws made by the Congress
of the United States are styled joint resolutions, and these have the same force and effect as those styled
acts.
Legislative act.--An alternative name for statutory law. When introduced into the first house of the
Legislature, a piece of proposed legislation is known as a Bill. When passed to the next house, it may
then be referred to as an act. After enactment the terms "law" and "act" may be used interchangeably.
An act has the same legislative force as a joint resolution but is technically distinguishable, being of a
different form and introduced with the words "Be it enacted" instead of "Be resolved". Acts are either
public or private. Public acts (also called general acts, or general statutes, or statutes at large) are those
which relate to the community generally, or establish a universal rule for the governance of the whole
body politic. Private acts (formerly called special), are those which relate either to particular persons
(personal acts) or to particular places (local acts), or which operate only upon specified individuals or
their private concerns. Unity v. Burrage, 103 U.S.447, 454, 26 L.Ed.465. Public acts are those which
concern the whole community and of which Courts of law are bound to take judicial notice. A "special"
or "private" act is one operating only on particular persons and private concerns. A "local act" is one
applicable only to a particular part of the legislative jurisdiction."
"See also Government act: Legislation; Legislative; Legislative act; Statute.
Private acts are those made by private persons as registers in relation to their receipts and expenditures,
schedules, acquittances, and the like.
Public acts are those which have a public authority, and which have been made before public officers,
are authorized by a public seal, have been made public by the authority of a Magistrate, or which have
been extracted and been properly authenticated from public records.
In the same Dictionary, at page 41, the word "Acting" as defined in its meaning No.(4) is "Acting in the
course of his duties".
In the said Dictionary, the word 'Aid' has been defined as follows:-
"Aid. To support, help, assist, or strengthen. Act in cooperation with; supplement the efforts of others.
State v. Upton, Lowa, 167 N.W.2d 625, 628."
The word 'power' has defined in the following words:-
"Power. The right, ability, authority, or faculty of doing something. Authority to do any act which the
grant or might himself lawfully perform. Porter v. Household Finance Corps. of Columbus, D.C. Ohio,
385 F. Supp.336, 341.
A power is an ability on the part of a person to produce a change in a given legal relation by doing or
not doing a given act. Restatement, Second, Agency, SS 6; Restatement, Property, SS 3.
In a restricted sense a "power" is a liberty or authority reserved by, or limited to a person to dispose of
real or personal property, for his own benefit, or benefit of others, or enabling one person to dispose of
interest which is vested in another.
Constitutional powers.--The right to take action in respect to a particular subject-matter or class of

matters, involving more or less of discretion, granted by the Constitution to the several departments or
branches of the Government, or reserved to the people. Powers in this sense are generally classified as
legislative, executive, and judicial (q.v); and further classified as enumerated (or express), implied,
inherent, resulting, or sovereign powers.
Commerce powers.--Power of Congress to regulate commerce with foreign nations, and among the
several States. Art. 1, SS 8, C1.3, U.S. Constitution.
Enforcement powers.--The 13th, 14th, 15th, 19th, 23rd, 24th and 26th Amendments each contain a
section providing, in these or equivalent words, that "Congress shall have the power to enforce by
appropriate legislation, the provisions of this Article."
Enumerated or express powers.--Powers expressly provided for in 'Constitution; e.g., U.S. Constitution
Art. 1, SS 8.
Implied powers.--Such as are necessary to make available and carry into effect those powers which are
expressly granted or conferred, and which must therefore, be presumed to have been within the
intention of the constitutional or legislative grant. See Enforcement powers, above; also Necessary and
proper powers, below. See also penumbra doctrine.
Inherent powers.--Powers which necessarily inhere in the Government by reason of its role as a
Government; e.g. conducting of foreign affaires. United States v. Curtiss-Wright Export Corp., 299 US
304, 315, 316, 57 S. Ct. 216, 81 L.ed. 255. See also Supremacy clause."
Reliance was placed on the case of Niaz Ahmed Khan v. Province of Sindh (PLD 1977 Karachi 604),
wherein Abdul Qadir, C.J. observed at page 629 as under:--
"I may now deal with arguments addressed in relation to the direction issued by the Federal
Government under Article 245 of the Constitution calling upon the Armed Forces 'to act in aid of civil
power'. Elaborate arguments were addressed at the Bar whether the direction amounts to imposition of
'Martial Law'. The expression 'Martial Law' does not find any place in the Constitution, the question,
therefore, arises whether on the direction issued by the Federal Government under Article 245 of the
Constitution, use of Armed Forces in aid of civil power can be termed as Martial Law."
"On the subject of Martial Law much has been said by their Lordships of the Supreme Court; I am,
however, tempted- to quote a passage on this topic from International Encyclopaedia of the Social
Sciences, Volume 10 at Chapter 315:-
"The term 'martial law' describes the exercise of military force to preserve order and ensure the public
safety in domestic territory in a time of emergency, when the civilian authorities are unable to deal with
the situation. In one form or another, under such names as 'state of siege' or 'state of emergency', the
concept is found in every country. In some countries it is almost the normal type of Government. In
Anglo-American law, its only proper purpose is to restore order with a view to the restoration of
civilian Government, and the degree to which the military may properly assume Governmental
functions depends entirely on the needs of the situation. In its mildest form martial law may amount to
no more than the employment of troops, in aid of and under the direction of the civil authorities, to
supplement the regular police in the control of riots and other public disorders and the enforcement of
the law, as was done in connection with integration of the schools in Arkansas and Mississipi. At the
other extreme if the emergency is great enough, such as actual or imminent invasion, the military
authorities may assume all the functions of Government, including the legislative and judicial. In such a
situation statutes and even the Constitution may be suspended and replaced by Ordinances of the
Military Commander. and the civilian Courts superseded by Military Tribunals. Such Courts. although
they bear a generic resemblance to Courts-martial, are not bound to follow the same procedure, but may
employ whatever rules are called for by the needs of the emergency. The best known example of such a
situation in recent American history is the declaration of martial law in Hawaii immediately after the
Japanese attack on Pearl ' Harbor."
36. Reference to the above decisions was made by the learned Attorney-General to contend that the
Doctrine of Necessity was not outdated and could be invoked in the present case for "limited purposes".
After referring to some portions of this Court's decisions in the Derwesh M. Arbey case (supra). in
which the Court had held that Article 245 could not be stretched to establish Military Courts, learned
Attorney-General contended that in 1977 Military Courts were set up to try the political opponents and
that the difference between the establishment of the Military Courts in 1998 and 1977 was that the
present Courts were to try a limited class of people who were involved in terrorism. He next submitted
that the Ordinance was not applicable to everyone but to a class of people -who were involved in
terrorist activities and were undermining the country whose defence from external aggression had been
made impregnable through nuclear explosions. He submitted that if an Anti-Terrorist 'Court had been
entrusted with one case only at a time, and the prosecution produced all the witnesses, there was no
question of delay. He reiterated that the Judges of Special Courts were scared of terrorists and thus
avoided deciding the cases. He submitted that a Special Court Judge which had decided the case of
Malik Ishaq had left the country because of fear of his life. He next contended that if this Court wanted
some control over the Military Courts, it was up to the Court to evolve a procedure. He also argued that
if somebody was aggrieved of a Military Court's decision, he had remedy available under Article
184(3) of the Constitution. He submitted that the Courts established under ATA did not deliver results
because the Judges were intimidated by terrorists while the Army personnel heading the Military
Courts were trained to face such situations and they could not be terrorised. He submitted that if the
criminals knew that they would be let off through the ordinary Courts. they would not hesitate to
commit crimes. He .relied on D.F. Marais v. The General Officer Commanding the Lines of
Communication and the Attorney-General of the Colony (known as Ex parte D-F. Marais), and Ex
parte Milligan (71 US 2).
37. Learned Attorney-General next argued that although Article 175(3) of the Constitution envisaged
separation of Judiciary from the Executive, nevertheless the Supreme Court extended the date for
issuance of requisite notification under section 1(2) of the Law Reforms Ordinance, 1972 from 24-10-
1993 to 23-10-1994. He also referred to the cases of Sharaf Faridi; and Al-Jehad Trust (supra), to
contend that even if the impugned Ordinance is found to be ultra vires of the Constitution some
breathing time be given to the Federal Government to restore normalcy in the troubled areas.
38. Learned Attorney-General summarized his submissions in the following terms:-
(1) The Courts which are convened or can be convened depending upon requirement of aid needed by
the State power or civil power, are not Courts established by law, in terms of Article 175(1) of the
Constitution and in fact, is a step or a measure meant to be taken under Article 245(1) of the
Constitution by the Federal Government to carry out its Constitutional duties and obligations under
Article 148 of the Constitution, therefore, judgment in Mehram Ali's case (supra), was not applicable to
the impugned legislation which derives its authority from the Constitution itself.
(2) Just as Courts or Tribunals provided for under Article 203 in Chapter II of the Constitution and
Articles 212, 245 are exempted from the purview of Article 175(1) of the Constitution and from the
control and supervision of the High Court, on the same basis and analogy, the impugned Ordinance and
judicial framework provided thereunder is exempted from superintendence and control of the High
Court, in that, the impugned legislation has been made to satisfy the exigencies of Article 245 of the
Constitution, which will also be exempted in the same manner.
(3) The provisions of Article 8(3) of the Constitution, in Chapter I relating to Fundamental Rights, is
not applicable to the impugned legislation, in that, the same is covered by clause (3) of Article 2
thereof, which provides that the State shall ensure the elimination of all forms of exploitation and the
gradual fulfillment of the fundamental principle, from each according to his ability to each according to
his work.
(4) The object of the Ordinance is to protect the life and property of the citizens in accordance with the
mandate of Article 9 of the Constitution, which guarantees security to the life and liberty of every
person.
(5) The terrorism has attained global magnitude, therefore, this Court in its inherent
jurisdiction/advisory jurisdiction, in order to administer complete justice, may find a solution of the
problem faced by the country on account of terrorist activities, if the impugned legislation is found to
be ultra vires of the Constitution.
(6) That the impugned legislation falls within the category of reasonable classification.
39. Mr Muhammad Iqbal Raad, learned Advocate-General, Sindh, has pleaded as follows:-
(1) In view of Tamizuddin Case, Dosso Case, Asma Jilani Case, Begum Nusrat Bhutto Case, Mst.
Benazir Bhutto Case, Haji Saifullah Case, Mian Muhammad Nawaz Sharif Case, Pir Sabir Shah Case,
Al-Jehad Trust Case, Mehram Ali Case, Emergency Case and lastly Syed Jalal Mahmood Shah Acting
Speaker's Case the principle is now well settled that no one can think to establish the parallel judicial
system.
,(2) The Doctrine of Necessity has been completely ignored and presently no reliance can be made on it
in the light of the Asma Jillani's Case. Actually it has lost the sanctity in view of Begum Nusrat Bhutto
Case, but even then this aspect may be considered that law is for the welfare of the people and if any
piece of legislation is in benefit of the people it carries weight.
(3) In presence of this admitted fact that the Courts, in question, have no permanence and have been
convened only for the time being and have jurisdiction to try heinous offences specified in the
Schedule, which are being referred and are being proceeded under the Army Act and provisions of
Code are available, have been declared fair trial under Army Act by this Apex Court.
(4) Although the jurisdiction of ordinary Courts have been kept intact, whether the ordinary Courts are
being allowed to function in the Province of Sindh, particularly, in Karachi. The answer is big "No" as
in the past Courts were not allowed to dispose of a single case of terrorism, simply as terrorists have
managed to set up their strong holds even in every street of the city and no one can dare to depose
against them in the ordinary Courts, inasmuch as, even Presiding Officers and Prosecutors are not
allowed to work without fear. If anyone has violated the command of the terrorists he has to face the
consequences, hence extraordinary measures are necessary to meet the situation.
(5) It may be decided by this Honourable Court that why the cases particularly, murder appeals where
the capital sentences have been awarded by the Courts are not being disposed of within years together
and due to this the people are urging for the early disposal, this is the time when some arrangements
may be made specifically.
(6) It is the time when terrorism is to be rooted out by way of force by lawful means as the said
terrorism is eating up the integrity of the country, the institutions are suffering due to this terrorism.
(7) It may be seen and steps may be taken by this Honourable Court that why the lower Judiciary
particularly, the District and Sessions Courts as well as the honourable High Court where the people
approach for their redress of grievances, the cases are not being decided rapidly. In this regard
necessary steps may be taken to restore the confidence of the people.
(8) Situation like mutiny is prevailing in the Province of Sindh and to combat it, any extraordinary
measures are required to meet the same, which may also be considered by this Honourable Court.
(9) It is a bitter fact that Special Courts like S.T.A. and A.T.A. Courts miserably failed to provide
justice to the people, particularly from the terrorist activities, hence some other course is to be adopted.
(10) That present set-up of Government in the Province of Sindh is dealing with every terrorist group
evenhandedly, in proof thereof now there are not any "No Go Areas" in existence throughout the
Province, while a huge quantity of arms has been recovered and accused involved in high profile cases
have been arrested and challaned for trial.
(1l) "No Extra-Judicial Killing" or highhandedness of the police or any other agencies has been noticed
or reported during the period which is an ample proof of handling the situation without any sort of
discrimination. No appointment has been made arbitrarily without merit.
40. Learned counsel for the petitioners strongly relied on the case of Darwesh M. Arbey (supra),
wherein the directions issued by the Federal Government in April, 1977 to the Armed Forces of
Pakistan, subject to law, "to act in aid of civil power" when called upon to do so by the Chief Minister
of the Province in such areas as may be specified by the Chief Minister and the order of the Chief
Minister of Punjab of even date calling upon the Armed Forces "to act in aid of civil power" and
exercise such powers and perform such functions as may be deemed necessary for maintenance of law
and order and security within the revenue limits of Lahore Districts, were challenged being ultra vires
of the Constitution. The Constitution. Petition was accepted, the directions issued by the Federal
Government purportedly in the exercise of power vesting in it under Article 245(1) of the Constitution,
was declared as invalid as well as the Act X of 1977 being contrary to and beyond the scope of Article
245(1) of the Constitution. The conclusions reached by the learned Judges of the Lahore High Court in
the case of Darwesh M. Arbey (supra) may be summarized as follows:-
"(a) That the direction issued by the Federal Government under Article 245(1) cannot be called in
question in view of the bar contained in clause (2) of Article 245 of the Constitution;
"(b) each of the following enactments namely:
(i) Pakistan Army (Amendment) Act (Act X of 1977);
(ii) Defence of Pakistan (Amendment) Act, 1977 (XI of 1977), and
(iii) Delegation of powers under the Defence of Pakistan Rules made by the Federal Government in
favour of the Chief of Army Staff and officer subordinate to and authorised by him in this behalf, is
within the competence of Legislature and the conferment or delegation of power through them cannot
be questioned;
"(c) That, "however, in the peculiar circumstances of the instant case, the entire exercise beginning with
the 'direction' of the Federal Government; followed by an order of the thief Minister of Punjab, the
simultaneous enactment of the above noted laws, the delegation of powers under the D.P.R. and the
various actions actually taken by the Armed Forces have to be attended to together and examined in
their entirety and not in isolation from one another. Viewed from that perspective we are of the opinion
that Act X of 1977 is invalid for being contrary to and beyond the scope of Article 245(I );
"(d) That the Pakistan Army (Amendment) Act, 1977 does not, on the face of it, show any nexus or
connection between offences made exclusively triable by the Court Martial under the Army Act by
virtue of the amendment, and the object for which the Armed Forces had been called in Lahore i.e. to
restore law and order. The result is that even to that extent this .amendment in the Army Act has in fact
resulted in replacement of the ordinary criminal Courts in the District of Lahore by the Military Courts
(Court Martial under the Army Act);
"(e) That it is, therefore, obvious that as the Courts established under the Army Act are trying civilians
of Lahore for offences which are said to have come, they (Armed Forces) are not acting in aid of civil
power but in derogation or replacement thereof:
"(f) That on the finding recorded that the Armed Forces while acting under the Pakistan Army
(Amendment) Act, 1977 are not acting in aid of civil power but in derogation and replacement thereof,
the learned Judges in the High Court reached the conclusion that their jurisdiction under Article 245(3)
of the Constitution is not ousted as the ouster is dependent upon the condition that the Armed Forces
are acting in aid of civil power;
"(g) That the present operation in the Lahore District wherein the Armed Forces are acting in aid of
civil power to quell the internal disturbances beyond the power of the Provincial Government to
control, restore law and order and security of the District of Lahore, cannot be termed as Martial Law."
41. The learned counsel for the parties also relied upon the following observations in the case of
Darwesh M. Arbey (supra), approved by this Court in the cases of Government of Balochistan v. Aziz
Ullah Memon (PLD 1993 SC 341), Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105), and
particularly, in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein
parameters of a Court or Judicial Tribunal within the framework of the Constitution, were laid down.
ARTICLE 245
MILITARY COURTS 'TO ACT IN AID OF CIVIL POWER' DISCUSSED.
42. After hearing the learned counsel for the petitioners, the petitioner(s) in person, Syed Iqbal
Haider, the learned Attorney-General for Pakistan and the learned Advocate-General, Sindh and after
considering the case-law on the subject, let me first of all deal with the interpretation of the expression
"to act in aid of civil power" within the purview of Article 245 of the Constitution Reference may
straightaway be made to the following observations by Shamim Hussain Qadri, J. in the case of
Darvesh M. Arbey (supra), which are as under:--
"At page 133 of the Administrative Law by J. F. Garner, Fourth Edition, the author, while discussing
the scope of judicial review, dealt with substantive ultra vires in terms of 'jurisdictional facts'. If a
Statute confers jurisdiction on an administrative body in certain defined factual situations, and if one of
the essential elements of those factual' situations is absent in the particular case the body will be
without jurisdiction and any decision taken in purported exercise thereof will be ultra vices. In my
humble view the real test is as to whether factually the Armed Forces of Pakistan have acted in aid of
civil power in pursuance of Article 245. In fact there are two phrases, which are necessary for
consideration in Article 245 i.e. (i) Armed Forces are acting in aid of civil power and (ii) subject to law.
Words 'in aid' have been used in Article 190 of the Constitution which is reproduced as under:-
"All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. "
"Can it be said that the Executive and Judicial Authorities while acting in aid of Supreme Court
supersede or divest the Supreme Court of all the judicial powers or replace it by their own authority.
The plain answer is "No". The other phrase 'subject to law' clearly indicates that the Armed Forces have
to function subject to law and that is obviously in aid of civil power. Civil power is in contradistinction
to Military power or Army power. Civil power, I have already discussed has three limbs, namely,
executive power. legislative power and judicial power. Can the Armed Forces acting in civil aid take
upon themselves all these three functions and can they style themselves as Martial Law Administrators.
The answer is obviously in the 'Negative'. The instructions and orders issued by the Martial Law
Administrators of different zones and the press releases have been placed on the record. Some of them
reflect that the Army is alleged to have overstepped in all the three fields.
"The learned Attorney--General, day in and day out, referred to the N.A.P.'s. Case and read
substantially from his own arguments and judgment of the Supreme Court in order to narrate the
background of Article 245 of the Constitution in respect of the happenings in Balochistan. His attention
was invited several times as to the relevancy of N.A.P.'s. case and situation of Balochistan to the
present case. The learned Attorney-General instead of replying to the question was sometimes furious
and adopted overawing attitude towards the Court. He stressed that the present Martial Law was
different from that of Field Martial Muhammad Ayub Khan and General Yahya Khan, as it was a coup
d'etat and not Martial I Law, since the Constitution in both the cases was abrogated. He read several
passages from Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), in
support of his view, He was asked to show any provision in any of the Articles of the Constitution
relating, to the power of imposition of Martial Law, what to speak of the word Martial Law. He could
not even point out any provision in the Constitution which conferred authority on the Parliament to pass
an Act of Indemnity in cases of excesses made by the Serving Personnel while so acting which
according to the learned Attorney-General was a Constitutional Martial Law. He contended that the
jurisdiction of this Court was temporarily suspended and it was for this Court to-punish anyone of the
personnel in the Armed Forces if he had over-stepped his authority as soon as the operation of the
Armed Forces in the District of Lahore comes to an end. If this argument is accepted then the Armed
Forces are placed in a most unfortunate position by the Government of a political party in power, the
validity of which has also been questioned when they are called upon to come to aid of civil power
under Article 245 and are forced to style themselves as Martial Law Administrators and to perform
certain functions for which they are not clothed with any authority. In such circumstances our valiant
soldiers, who are under an oath of allegiance to the Constitution of Pakistan, are placed in a perilous
situation. On the one hand they are made to carry out the orders issued by the Federal Government
while on the other, they are not provided any protection for any act or omission which they have
advertently or inadvertently done. Learned Attorney-General should at least know that Constitutional
Martial Law is a contradiction in terms. Martial Law means no law and presently I will be referring to
several books of Jurisprudence on the. subject. Muhammad Munir, C.J. in Muhammad Umar Khan v.
The Crown (PLD 1953 Lah. 528) described three types of Martial Law (i) when it is used with
reference to law relating to discipline in the Armed Forces of the State which is ,administered by
Tribunals, called Courts Martial; (ii) in the second sense, the word "Martial Law" means "Military
Government in occupied territory" and is used to describe the powers of a military commander in times
of war in enemy territory. In this sense, Martial Law is recognised by Public International Law as a part
of English Constitutional Law, Martial Law means the rights and. obligations of the military under the
common and statute law of the country to repel force by force while assisting the civil authorities to
suppress riots, insurrections or other disorders in land. In American Constitutional Law, Martial Law in
this sense is a form of the police power of the State and means law which has application when Army
does not supersede civil authority but is merely called upon to aid an authority in the execution of its
civil functions. These three types of Martial Law are also mentioned in Salmon's Jurisprudence, 1957
Edition, at pages 91 and 92. It will be noticed that the justification of this form of Martial Law, if it can
at all be so-called, is the common law of England and several statutes which create rights in and impose
obligations on citizens and servants of the Crown in the matter of suppression of riots. On page 529, in
'the second paragraph it was observed: "Therefore, Martial Law is not law at all but the will of the
officer commanding the Army. Constitution on the other hand means a "magna carta" or a guarantee
given to the people in writing about powers of various public functionaries including the civil power
and the military power. This is enshrined in our Constitution of 1973. Therefore, under the garb of
Article 245 Martial Law cannot be imposed. In Article of the Indian Constitution, however, the word
'Martial Law' is mentioned. This Article speaks that the Parliament, may by law indemnify any person
in the service of the Union or of a State or any other person in respect of any act done, or purported to
have been done, by him in relation to the maintenance or restoration of law and order in any area within
the territory of India where martial law was in force and to validate any sentence, conviction etc. etc.
Similar provisions, however, do not exist in our Constitution of 1973, nor was the learned Attorney-
General able to point out any When confronted with this situation he again placed , reliance on
Muhammad Umar Khan's case and submitted that it was the common law on the basis of which the
Martial Law has been imposed in various places of this country including Lahore. Learned Attorney-
General was called upon to show any of the provisions of the Constitution under which the Common
Law of England could be enforced in this country. He was unable to do so, and submitted that when the
Courts apply the principle of natural justice they rely on common law of England. He perhaps does not
know that principles of natural justice are not based on the English Common Law but are enshrined in
the Holy Book. Verses 18, 19 and 20 from pages 851 and 852, 'Part 29 of Surah Alhaqqah, Verses 13
and 14 from Bani Israel, Part 15, page 423 and Verses 20 and 21 of Surah An-Nam], Part 9,..."
At page 289 of the report, Zakiuddin Pal, J. observed as under:
' . . . . . . . . . . . . . . . The learned counsel for the respondents have not been able to show any Article in
the Constitution indicating that when the Armed Forces are called to restore law and order, they are to
act in replacement and supersession of civil authorities. Imposition of any type of Martial Law means
suspension of 'ordinary Courts and functioning of all civil authorities and temporary or otherwise rule
by the Armed Forces of the country or any part thereof through Military Tribunals, Legislative
measures, directions etc. The provision of Article 245 does not authorise the Armed Forces to. act in
such manner. If they replace or supersede the civil power, issue directions or,, instructions to that, take
over the ordinary administration of the area where they have been called to render aid to the civil
authority, take such measures and issue such directions which aim at legislation and law making, then
such activities of the Armed Forces would not be within the scope of Article 245. The said Article
authorises the Armed Forces to act in aid and not in supersession of civil authority. "
In Article entitled: "Hostages to Fortune"?„ "The Politics of Law and Order in Post-War Britain", by
David Downes and Rod Morgan, at page 223, it was observed as under:-
“.. .. .. .. .. .. .. The rise and discrediting of 'supergrass' evidence in the 1980s; the abandonment of the
'right of silence' in 1988; the regular delay of several years in holding inquests on persons killed by the
security forces (Amnesty International 1978); and the violation of the European Convention on Human
Rights on a number .of fronts concerning interrogation and time held in custody; have all severely
eroded the belief, both nationally and internationally, in the impartiality of British justice. They also
provided the context within which routine police practices for constructing the suspect escalated into
'the greatest twentieth century crises of confidence in the administration of justice in Great Britain'
(ibid). Even the most rigorous and wide-ranging Royal Commission will be sorely pressed to tackle
such deep-rooted problems, though it is gratifying that a start has been made by its establishment."
"……... One of the modes for blocking the road of free access to justice is to appoint or hand over the
adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely a
semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in
fact such Courts which are manned and run by Executive Authorities without being under the control
and supervision of the Judiciary can hardly meet the demands of Constitution .. . . . . . . .. . .”
“ .. . . . . . . .. .. . . . . Such a procedure can hardly be conducive to the administration of justice and

development of the area nor will it achieve the desired result of bringing law and order, peace and
tranquillity or economic prosperity and well-being. The Constitution envisages independent Judiciary
separate from the Executive. Thus any Tribunal created under the control and superintendence of the
Executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9
and 25."
“.. ... .. .. .. .. .. The lower Judiciary is a part of the judicial hierarchy in Pakistan- Its separation and
independence is to be equally secured and preserved as that of the superior Judiciary. The lower
Judiciary is more dependent and prone to financial dependence and harassment at the hands of the
Executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary
which under several enactments and rules is practically under the control and supervision of the
executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separate
from the executive and
"High Court shall supervise and control all Courts subordinate to it". Such control and supervision can be
achieved only when the Judiciary is administratively and financially separate from the Executive.
Separation of Magistracy is the first step towards separation and independence. The next step should be
taken to devise proper scheme and frame rules dealing with financial problems within the framework of
the Constitution. So long financial independence is not achieved, it will be difficult to improve the
working conditions, accommodation, building and expansion to meet the growing needs of the people. "
" 15.. .. .. .. .. .. .. .. .. Magistrates separately were not included in the above Notification nor they
have been enforced till today. It will not be out of context to mention that in 1952 Justice
(retired) Din Muhammad, who was the then Governor of Sindh converted all posts of City
Magistrates, Civil Judges and 1st Class Magistrates and brought the incumbents in the cadre of
Civil Judges and placed them under direct control of the District Judge and of the High Court. In
other words in the interior of Sindh Civil Judges exercise the power of 1st Class Magistrates but
unfortunately there are still Magistrates in the interior of Sindh exercising executive and judicial
powers jointly". The structure and its implementation and proper functioning is available and
should not pose any problem to other Provinces. If in Sindh the Ordinance could be implemented
within two days of the promulgation of the Ordinance XII of 1972, why it has not seen the light
of the day in other Provinces for the last more than twenty years. The mandate and command of
Article 175 must be obeyed and implemented; and laxity in this regard will amount to violation
of Constitutional ,provisions and perhaps the judicial orders passed by the functionaries under
the control and superintendence of the Executive may be challenged, which will create
embarrassing situation for the Government and the administration of justice shall be seriously
jeopardized .. .. .. ... ... ... .. "
In the case of Niaz Ahmed Khan (supra), ABDUL QADIR SHEIKH, C.J observed as under:--
Government under Article 245 of the Constitution calling upon the Armed Forces 'to act in aid of
civil power'. Elaborate arguments were addressed at the Bar whether the direction amounts to
imposition of 'Martial Law'. The expression 'Martial Law' does not find any place in the Constitution,
the question, therefore, arises whether on the direction issued by the Federal Government under
Article 245 of the Constitution, use of Armed Forces in aid of civil power can be termed as Martial
Law."
'On the subject of Martial Law much has been said by their Lordships of the Supreme Court; I am,
however, tempted to quote a passage on this topic from International Encyclopedia of the Social
Sciences, Volume 10 at Chapter 315:--
"The term 'martial law' describes the exercise of military force to preserve order and ensure the
public safety in domestic, territory in a time of emergency, when the civilian authorities are unable to
deal with the situation. In one form or another, under such names as 'state of siege' or 'state of
emergency', the concept is found in every country. In some countries it is almost the normal type of
Government. In AngloAmerican law, its only proper purpose is to restore order with a view to the
restoration of civilian Government, and the degree to which the Military may properly assume
Governmental functions depends entirely on the needs of the situation. In its mildest form Martial
Law may amount to no more than the employment of troops, in aid of and under the direction of the
Civil Authorities, to supplement the regular police in the control of riots and other public disorders
and the enforcement of the law, as was done in connection with integration of the schools in
Arkansas and Mississippi. At the other extreme. if the emergency is great enough, such as actual or
imminent invasion, the. Military Authorities may assume all the functions of Government, including
the legislative and judicial. In such a situation statutes and even the Constitution may be suspended
and replaced by Ordinances of the military commander, and the civilian Courts superseded by
Military Tribunals. Such Courts, although they bear a generic resemblance to Courts-martial, are not
bound to follow the same procedure, but may employ whatever rules are called for by the needs of
the emergency. The best known example of such a situation in recent American history is the
declaration of martial law in Hawaii immediately after the Japanese attack on Pearl Harbor.
"Martial law is nowhere explicitly mentioned in the Constitution but is simply an inherent attribute of
sovereignty, the right of every Government to take whatever steps are necessary for its own
preservation.` As such it is a part, although an extraordinary part, of the common law. Although the
Constitution does not explicitly either authorize or limit the executive's invocation of martial law. It
is now well established that there are Constitutional checks upon the exercise of this power. To the
extent that the measures of martial law encroach upon the citizens' rights under State and Federal
Constitutions, the Civil Courts have jurisdiction to determine whether the measures taken are in fact
commensurate with the emergency and to annul them to the extent that they are more drastic than the
Court deems requisite. Although the Courts are usually disposed to give considerable weight to the
executive" judgment of the crises, there are numerous cases in which they have found martial law
measures to be unjustified. Most such cases have involved the Governors of States (some of whom
have been tempted to use martial law whenever a political goal could not be achieved by lawful
methods), but the Supreme Court has oh occasion applied the same test to the exercise of war power
by the President and Congress. One famous instance is Ex parte Milligan (1867) 71 U.S, 2) decided
shortly after the Civil War, in which the Supreme Court freed a Copperhead leader who had been
sentenced to death by a military commission in Union territory at a time when the Civil Courts were
open and functioning normally. Another is Ex parte Endo (1914) 323 U.S. 283), in which the Court,
having previously upheld most of the restrictive measures applied to American citizens of Japanese
descent in World War II, finally concluded that certain relocation measures, involving drastic
interference with normal Constitutional rights, could not be justified b- military need."
"It would be seen that the control and command of the Armed Forces has been assigned to the
Federal Government, and it may, therefore, well be said that the Commander-in-Chief of the Armed
Forces of Pakistan is the Federal Government. The functions of the Armed Forces are stated in
Article 245 and these are to defend Pakistan against external aggression or threat of war, and also "to
act in aid of civil power". The performance of these functions has been cast as a matter of
Constitutional duty on the Armed Forces, and in so far as the aid to civil power is concerned, it has
been stated in unambiguous terms that this action is meant to be 'subject to law'.
"However, there is no scope of Martial Law in our Constitution of the type Duke of Willington had in
mind when he said 'Martial Law is neither more or less than the will of the General who commands
the Army. In fact Martial Law means no law at all'.
In this connection I may also refer to the speech made by Mr. Abdul Hafiz Pirzada, the then Minister
of Law and Parliamentary Affairs, while introducing the Constitution 1973 Bill in the National
Assembly of Pakistan on 17th February, 1973. This is what he said:-
"We have suffered the dictators, and when President Zulfikar Al i Bhutto, sometime back before this
very august House, on a different occasion, said: 'Let us proceed to make the Constitution', these
were bis words at the time of making the Interim Constitution, and with the making of the
Constitution the Course of Martial Laws; the apprehensions of taking the control of the country by
usurpers and dictators and exploiters shall be buried once and for all'. he was hundred per cent.
correct."
Under our Constitution, the Federal Government is the Commander-in-Chief in terms of Article 243.
The provisions made in Article 245 to provide for calling upon the Armed Forces 'to act in aid of
civil power' has parallel in section 8 of the Constitution of United States. It would be noticed that the
power is vested in the United States in Congress 'for calling out the Militia to execute the laws of the
Union, suppress insurrection . . . . . . . . . "
The provision made in our Constitution under Article 245 that on the direction issued by the Federal
Government it shall be one of the Constitutional functions of the Armed Forces 'to act in aid of civil
power' is therefore, not unknown to other Constitutional instrument, and this power vested in the
Federal Government is to be understood in the light of the background of the English common law
and our own experience of the two Martial Laws in the past.
The Constitution makes it abundantly clear from the language employed in Article 245 itself by
stating that the- act in aid of the civil power performed by the Armed Forces is 'subject to law'. The
expression 'subject to law' places embargo on the Armed Forces not to trample upon the law, not to
speak of the Constitution. The Armed Forces by very oath of their office administered to them under
the Constitution are to bear true faith and allegiance to Pakistan and uphold the Constitution of the
Islamic Republic of Pakistan, and not to engage themselves in any political activity whatever, and to
serve Pakistan sincerely and faithfully as required.under the circumstances. The performance of this
duty cast upon them is nothing short of a Constitutional duty and is made specifically, 'subject to
law'.
1t has been held even under the English Common Law that the power to declare Martial Law does
not include the power to supplant civilian law by military orders and supplant Courts by Military
Tribunals where conditions are not such as to prevent the enforcement of the laws by the Court. "
It would be advantageous to reproduce the following passages from the case of Lloyd C. Duncan v.
Duke Paoa Kahanamoku (327 US 304-358), at pages 90 L ed 698 to 700 and pages 704 to 706, as
under: -
(320) But we might mention a few pertinent incidents. As early as the 17th Century our British
ancestors took political action against aggressive military rule. When James I and Charles I
authorized martial law for purposes of speedily punishing all types of crimes committed by civilians
the protest led to the historic Petition of Right which in uncompromising terms objected to this
arbitrary procedure and prayed that it be stopped and never repeated. When later the American
Colonies declared their independence one of the grievances listed by Jefferson was that the King had
endeavoured to render the military superior to the civil power. The executive and military officials
who later found it necessary to utilise the Armed Forces to keep order in a young and turbulent
nation, did not lose sight of the philosophy embodied in- the Petition of Right and the Declaration of
Independence, that existing civilian Government and especially the Courts were riot to be interfered
with by the exercise of military power. In 1787, the year in which the Constitution was formulated,
the Governor of Massachusetts Colony used the militia to cope with Shay's rebellion. In his
Instructions to the Commander of the troops the Governor listed the 'great objects' of the mission.
The troops were to 'protect the judicial Courts ... ... , 'to assist the Civil Magistrates in executing the
laws ... ... .. ,' and to 'aid them in apprehending the disturbers of the public peace ... ...' The
Commander was to consider himself 'constantly as under the direction of the civil officer, saving
where any armed force shall appear and oppose ... ...(his)... .. marching to execute these orders . . . . .
.. .‟
' (322) Later the State Auditor as agent of the Governor, and not the Commanding General, ordered
the troops to detain citizens without trial and to aid the Auditor in doing all he thought necessary to
stop the riot: Once more, the Military Authorities did not undertake to supplant the Courts and to
establish Military Tribunals to try and punish ordinary civilian offenders.'
'Courts and their procedural safeguards are indispensable to our system of Government. They were
set up by our founders to protect the liberties they valued . ... .. ...Our system of Government clearly
is the antithesis of total military rule and the founders of this country are not likely to have
contemplated complete military dominance within the limits of a territory made part of this country
and not recently taken from an enemy. They were opposed to Governments that placed in the hands
of one man the power to make, interpret and enforce the law. Their philosophy has been the people's
throughout our history. For that reason we have maintained Legislatures chosen by citizens or their
representatives and Courts and juries to try those who violate legislative enactments. We have always
been especially concerned about the potential evils of summary criminal trials and have guarded
against them by provisions embodied in the Constitution itself ... ... Legislatures and Courts are not
merely cherished American institutions; they are indispensable to our Government. Military
Tribunals have no such standing. For as this Court has said before: ' ... ....the military (323) should
always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to
the Republic who advocates the contrary. The established principle of every free people is, that the
law shall alone govern; and to it the military must always yield. " ... ...Congress prior to the time of
the enactment of the Organic Act had only once authorised the supplanting of the Courts by Military
Tribunals. Legislation to that effect was enacted immediately after the South's unsuccessful attempt
to secede from the Union. In so far as that legislation applied to the Southern States after the war was
at an end it was challenged by a series of Presidential vetoes as vigorous as any in the country's
history. And in order to prevent this Court from passing on the constitutionality of this legislation
Congress *(324) found it necessary to curtail our appellate jurisdiction. Indeed, prior to the Organic
Act, the only time this Court had ever discussed the
supplanting of Courts by Military Tribunals in a situation other than that involving the establishment.
of a Military Government over recently occupied enemy territory, it had emphatically declared that
'Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable;
and, in the conflict, one or the other, must perish.'
' We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment
of 'martial law' it had in mind and did not wish to exceed the boundaries between military and
civilian power, in which our people have always believed, which responsible military and executive
officers had heeded, and which had become part of our political philosophy and institutions prior to
the time Congress passed the Organic Act. The phrase 'martial law' as employed in that Act,
therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly
civil Government and for the defence of the Islands against actual or threatened rebellion or invasion,
was not intended to authorize the supplanting of Courts by Military Tribunals. Yet the Government
seeks to justify the punishment of both White and Duncan on the ground of such supposed
Congressional authorization. We hold that both petitioners are now entitled to be released from
custody.'
"(331)... ...'this military attitude toward Constitutional processes is not novel. Civil liberties and
military expediency are often irreconcilable. It does take time to secure a grand jury indictment, to
allow the accused to procure and confer with counsel, to permit the preparation of a defence; to form
a petit jury, to respect the elementary rules of procedure and evidence and to Judge guilt or innocence
according to accepted rules of law. But experience has demonstrated that such time is well spent. It is
the only method we have to insuring the protection of Constitutional rights and of guarding against
oppression ... .., ,.. ... ..Any failure of Civil Courts to convict violators of such Regulations would
diminish the authority and ability to discharge military responsibilities. This is the ultimate and most
vicious of the arguments used to justify military trials. It assumes without proof that Civil Courts are
incompetent and are prone to free those who are plainly guilty. It assumes further that because the
military may have the valid power to issue regulations there must be an accompanying power to
punish the violations of those regulations; the implicit and final assumption is then made that the
military must have power to punish violations of all other statutes and regulations ... ...That the
military refrained from using the statutory framework which. Congress erected affords no
Constitutional justification for the creation of Military Tribunals to try such violators ... ...'
*"(334)... " The reasons here advanced for abandoning the 'open Court' rule of the Milligan Case are
without substance. To retreat from that rule is to open the door to rampant militarism and the
glorification of war, which have destroyed so many nations in history. There is a very necessary part
in our national life for the military; it has defended this country well in its darkest hours of trial. But
militarism is not our way of life. It is to be used only in the most extreme circumstances. Moreover,
we must be on constant guard against an excessive use of any power, military or otherwise, that
results in the needless destruction of our rights and liberties. There must be a careful balancing of
interest. And we must ever keep in mind that 'The Constitution of the United States is a law for rulers
and people, equally in war and in peace, and covers with the shield of its protection all classes of
men, at all times, and under all circumstances ... .. ...".
In Sterling v. Constantine 287 US 378=77 L ed 375). the Chief Justice ;s delivering the opinion of
U.S. Supreme Court observed:-
"Martial Law can never exist where the Courts are open and in the proper and uninterrupted exercise
of their jurisdiction. However, his Lordship being conscious of the fact that power was conferred
upon the Executive to call the Militia to execute the law of the Union observed in this respect as
under:
'By virtue of his duty to 'cause laws to be faithfully executed', the Executive is appropriately vested
with the discretion to determine whether an exigency requiring military aid for that purpose has
arisen. His decision to that effect is conclusive. That construction, this Court has said, in speaking of
the power constitutionally conferred by the Congress upon the President to call the militia into actual
service, 'necessarily results from the nature of the powers itself, and from the manifest object
contemplated.' The power 'is to be exercised upon sudden emergencies, upon great occasion of State,
and under circumstances which may be vital to the existence of the Union.' Marth v. Mott, 12 Wheat.
19, 29, 30, 6 L ed. 386, 537, 540, 541. Similar effect, for corresponding reasons, is ascribed to the
exercise by the Governor of State of his discretion in calling out its military forces to suppress
insurrection and disorder Luther v. Boarden, 7 How 1, 45, 12 L.ed 581, 600; Moyer v. Peabody, 212
US 78, 83, 53 L.ed 410, 415, 29 SCt.235. The nature of the power also necessarily implies that there
is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in
suppressing violence and restoring order, for without such liberty to make immediate decision, the
power itself would be useless. Such measures, conceived in good faith, in the face of the emergency
and directly related to the quelling of the disorder or the prevention of its continuance, fall within the
discretion of the Executive in the exercise of his authority to maintain peace. Thus, in Moyer v.
Peabody, the Court sustained the authority of the Governor to hold in custody temporarily one whom
he believed to be engaged in formenting disorder, and right of recovery against the Governor for the
imprisonment was denied. The Court said that as, the Governor 'may kill persons who resist'. he may
use the milder measure of seizing the bodies of those whom hp considers to stand in the way of
restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to
prevent the exercise. of hostile power. So long as such arrests are made in good faith and in the
honest belief that they are needed in order to head the insurrection off, the Governor is the final
Judge and cannot be subjected to an action after he is out of office on the ground that he had not
reasonable ground for his belief.'
The Chief Justice, however, warned:
"It does not follow from the fact that the executive as this range of discretion, deemed to be a
necessary incident of his power to suppress disorder of every sort of action the Government may take
no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the
Courts, otherwise available is conclusively supported by mere executive fiat."
'What are the allowable limits of military discretion and whether or not they have been overstepped
in a particular case, in the opinion of the Chief Justice Hughes; are judicial questions and in this
behalf he observed:-
"Thus, in the theatre of actual war, there are occasions in which private property may be taken or
destroyed to prevent it from falling into the hand of the enemy or may be impressed into public
service and the officer may show the necessity of defending an action for trespass. 'But we are clearly
of opinion' said the Court speaking through Chief Justice Taney, 'that in all of these cases the danger
must be immediate and impending; or the necessity urgent for the public service, such will not admit
of delay, and where the action of the civil authority would be too late in providing the means which
the occasion calls for ... ... ...Every case must depend on its own circumstances. It is the emergency
that gives the right. and the emergency must be shown to exist before the taking can be justified.'
Mitchell Harmony, 13 How. 115, 134, 14 L. ed. 75, 83, See also United States v. Russel, 13 Wall.
623, 628, 20 L. ed. 474, 475. There is no ground for the conclusion that military orders in case of
insurrection have any higher sanction or confer any greater immunity.'
'It was argued before U.S. Supreme Court in this case that it is possible for the Courts to call upon the
Governor, after the alleged emergency has passed, to account for `what he has done, but that they
may not
initiate a proceeding for injunction. Chief Justice Hughes repelled this submission in these words:
'The suggestion confuses the question of judicial power with that of judicial remedy. If the matter is
one of judicial cognizance, it is because of an alleged invasion of a right, and the judicial power
necessarily extends 'to the granting of the relief found to be appropriate according to the
circumstances of the case. Whether or not the injured party is entitled to an injunction will depend
upon the nature of the right invaded and the adequacy of the remedy at law. If the Court finds that
the limits of executive authority have been transgressed, and that in view of the character of the
injury equitable relief by injunction is essential in order to afford the protection to which the injured
party is entitled, it cannot be said that the judicial power is fettered because the injury is attributable
to a military order.' “
The view taken in the above report was adopted by Abdul Qadir Shaikh.. C.J., in the case of Niaz
Ahmed Khan (supra) in the following words:-
"I wholeheartedly adopt these principles of law as can be made applicable within the framework of
our Constitution. and would hold that if High Court finds that limits of Executive Authority have
been transgressed, and that in view of the character of the injury relief under ,i ::clause (1) of Article
199 of the Constitution is essential in order to afford protection to which the aggrieved party is
entitled. 1 would withhold it because the injury is attributable to an order passed by the Armed
Forces acting in aid of Civil Power in terms of clause (1) of Article 245. unless 1 find that specific
bar or limitation in this behalf has been placed in the other clauses of Article 199, or Article 245 or
elsewhere in the Constitution itself. I have already observed earlier that an embargo has been placed
by the Constitution under Article 245 by the words 'subject to law'. This excludes any scope of an
invasion by the Armed Forces which may amount to transgression of law and, therefore, no act on
the part of the Armed Forces would be justified in the garb of aid to civil power unless it is shown to
be under the law."
"The quantum of aid to be given and the manner in which this assistance is to be rendered by the
Armed Forces, as a matter of Constitutional duty, depends upon the nature of the direction issued by
the Federal Government in this behalf. Therefore, no action in the garb of aid to civil power by the
Armed Forces is permissible, unless it is also within the four corners of the law."
.instances are not wanting when, due to curfew imposed, the functions of the Civil Courts have been
suspended- In such cases even the complaints of violation of law are necessarily to he examined after
the reopening of the Courts. 'Where civil power is deposed, suspended or paralysed by domestic
disturbances' Muhammad Munir, C.J. observed in Muhammad Umar Khan v. The Crown PLD 1953
Lah. 528, 'the Military are entitled to step in the void but these writers (most Constitutional writers)
are equally clear in their opinion that while so acting the legality or excusability of any action taken
by the military will be judged by 'necessity' and that such judgment will lie with the Civil Courts ex
post facto."
... ...I do not see how an argument is available that the power of superior Courts in Pakistan has been
trampled upon by the newly-added clause (3) of Article 245 to the extent that having regard to the
general scheme of the Constitution providing for trichotomy of powers, the Judiciary has been
offended to the extent which is not permissible by the inherent juristic philosophy of the
Constitution. I have already held that the encroachment upon High Courts' jurisdiction under Article
199 is a stop gap arrangement meant tc last so long as-the Armed Forces are acting in aid of civil
power ………."
"I have already noticed in the earlier part of this judgment that use of Armed Forces in aid of civil
power in case of failure of the machinery of the civil power may be needed by Civil Courts
themselves for the purpose of performing their own functions, or otherwise the function of the Civil
Court may itself be threatened. I am, therefore, clearly of the view that the provisions contained in
the newly-added clauses of Article 245 do not offend against the inherent framework of the
Constitution. "
In the case of Niaz Ahmed Khan (supra), I, Mahmud, J. observed as under:-
"Another Constitutional limitation on the power of the Armed Forces under Article 245(1) is that
they are bound to 'act in aid' of civil power. The expression 'act in aid' has been used also in Article
190 which provides that all Executive and Judicial Authorities throughout Pakistan shall act in aid of
the Supreme Court The expression has also been used in earlier Constitutional enactments as well as
in the Civil Procedure Code. The expression clearly means 'to assist' the established authority in the
discharge of its functions and cannot mean to supersede or supplement the civil authority, which
would be unconstitutional. "
Fakhruddin G. Ebrahim, J. in the said report, observed as under:-
" 11. Now the Armed Forces who are under the command of the Federal Government can be called in
aid of Civil Power under Article 245 of the Constitution under several circumstances such as for
maintenance of essential services; to meet a situation arising out of national calamity like flood or
earthquake or to quell or prevent internal large scale disturbances. The learned counsel contended,
and it is admittedly so, that in the present case the Armed Forces have been expressly called to aid
the Civil Power in the maintenance of law and order and security and no more. It was contended that
the expression 'to act in aid' also occurs in Article 190 of our Constitution which requires that all
Executive and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court. The
expression; to act in aid of has not been defined in any legal Dictionary but the ordinary meaning of
'aid' is, to come to the assistance of or to render help. It, therefore, follows that the person who comes
to the aid or assistance of another does not displace the other or restrict the latter's authority.
Therefore, the Civil Power in the aid of which the Armed Forces have been called for the limited
purpose, it was argued has no power to take any action or make any order and must under all
circumstances follow the directions of the Civil Power who also cannot abdicate its normal functions.
It was on this basis that the learned counsel challenged the various orders and directives issued by the
Military Authorities as being without lawful authority. I am, however, of the view that the expression
'acting in aid of is itself capable of a connotation which confers upon the person called upon to ,aid to
so act and perform such functions as may achieve the purpose for which the aid is sought. The
Executive or the Judicial Authority when it performs its obligation, namely acts, in aid of Supreme
Court under Article 190 does so in pursuance of that Article independent of any other law. In the
present case the Armed Forces have been called in to aid the Civil Power for the maintenance of law
and order and security and it must follow therefrom that they must possess Police Powers to be able
to perform-this limited function and if it is established that the Armed Forces are performing police
functions for the limited purpose of suppressing riot or preventing threatened disorder, it cannot be
said that in so acting they are travelling beyond the duty assigned to them by the Constitution. The
learned counsel vehemently argued that the Armed Forces in these areas are exercising powers
beyond and in excess of police powers. The complaint is not altogether unjustified. Our attention was
invited to the Amendment of, the Army Act and the delegation of powers under the Defence of
Pakistan Ordinance in favour of the Armed Forces. As to the former it displaces the Civil Courts
which is an important part of Civil Power in the aid of which the Armed Forces have been called, and
as to the latter, which has been described by a person no less than the present Prime Minister as
'formidable disguise of legal form', it enables the Armed Forces to practically run a parallel
Government. I am clear in my mind that neither these laws nor any other law can enable the Armed
Forces to act in excess of their functions provided in Article 245. I will revert to this aspect of the
matter in the later part of my judgment. Assuming, however, that the Armed Forces are in addition to
the available Police Powers performing functions not limited to maintenance of peace and
tranquillity, can it be said that they are in the specified areas not acting in aid of Civil Power? I put it
to Mr. Khalid Ishaque, the learned amicus curiae as to the consequence that will follow if the
conclusion was that the Armed Forces were at least partly acting in aid of Civil Power in these areas?
I invited his attention to the language of the newly-added clause (3) of Article 245 of the Constitution
which prevents this Court from exercising its jurisdiction under Article 199 in relation to an area,
where the Armed Forces are for the time being acting in aid of Civil Power, and therefore, even if
they are partly so acting, and admittedly they are exercising Police Powers to maintain peace and
order in the areas specified, we will be bound by the Constitutional limitation not to exercise the
jurisdiction under Article 199 in relation to these areas. I must admit that this aspect of the case has
given me anxious moments and I have on principles consistently affirmed by all Courts that
provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with
pronounced leaning against ouster, made every endeavour to be able to arrive at the conclusion that
the bar at best prevents us from questioning such actions of the Armed Forces as can be said to be in
aid of Civil Power, but the clear language of the Constitution does not warrant that conclusion. "
" 14: The primary function of the Armed Forces under Article 245 is to defend Pakistan against
external aggression or threat of war. The other function of a lesser import is 'to act in aid of civil
power' when called upon to do so but subject to law. I have already stated earlier that the words 'act
in aid of has its own connotation, namely, to come to the help or assistance of the Civil Power and in
the present case expressly for the limited purpose of maintaining law and order and security in its
narrow sense of aiding in suppression of a riot or tumult actually existing or preventing one that is
threatened so that the Civil Power is enabled to perform its normal functions. To enable the Armed
Forces to perform this limited function they must of necessity be clothed with Police Powers and to
constitute a valid exercise of such powers it must be neither arbitrary nor excessive and subject
always to law. The actions of the Armed Forces must be germane only to the restoration of peace and
tranquillity. It will be no answer that a law permits them to act in excess of this limited and confined
function for no law can enlarge the functions of the Armed Forces beyond the mandate of the
Constitution contained in Article 245. No law, therefore, can enable the Armed Forces to exceed their
assigned duty under the Constitution and even in relation to a law enabling them to .perform their
assigned function of maintenance of law and order and security, any interference in the citizens'
personal freedom or property rights must be justified, as in the case of Police Powers, by necessity
actually existing or reasonably presumed. The test is whether the interference is necessary in order to
perform the duty of restoring order. To give a specific instance a law may provide or such a power
may be implicit in the performance of the duty cast, for imposition of curfew, but its exercise must
carry the restraint of necessity and reasonableness. No law can permit or empower the Armed Forces
to shoot at site a person who violates the curfew simpliciter so as to cause his death or bodily harm
for such a grave action must have for its justification imminent and grave public necessity. It may be
that in performance of its duty the Armed Forces in the exercise of Police Powers act independently
of the Civil .Authority but the Armed Forces cannot abrogate, abridge or displace Civil Power of
which Judiciary is an important integral. part. The Armed Forces, therefore, can certainly apprehend
those who disturb or threaten to disturb peace and tranquillity but such persons. in my humble view,
can only be tried by ordinary Civil Courts which have admittedly not ceased to function. The
argument that Military Tribunals will ensure prompt punishment as a example for others overlooks
the disadvantages of a Military trial and--under-estimates the importance of a trial by an ordinary
Civil Court who can. if need be, given directions to give priority for the disposal of the cases arising
out of the present law and order situation. If the political parties or political activities are not banned
in the specified areas- by the Civil Power, both the Public and the Press have a right, so long as they
remain within the bounds of law to give expression to their views in a manner recognized by law. for
a call to aid the Civil Power does not operate to suspend civil law of to negate individual rights of
person and property. "
Reference was again made to the case of Darwesh M. Arbey (supra) wherein Aslam Riaz Hussain,
C.J. at pages 229-230, 232-233 and 236, had observed as under:-
"In other words the above-noted three jurisdictional facts must exist before the jurisdiction of this
Court under Article 199 of the Constitution can be said to have been ousted or withdrawn."
"This was also the stand of the learned Attorney-General himself. He admitted that under clause (3)
the ouster of the jurisdiction of the High Court depended upon the presence of three jurisdictional
facts, and that had to be seen:-
"(1) Whether there is a direction of the Federal Government under Article 245(1)?
(ii) Whether the Armed Forces start acting in aid of the civil power in ' pursuance of that direction?
and
(iii) Whether the area has been specified and identified, where they are so acting?"
“........The Army Act is primarily meant for maintaining the internal discipline of the personnel of the
Armed Forces or the civilian directly connected with them, e.g., camp fellows etc. No doubt some
categories of civilians who were not previously subject to the Army Act were made subject to it by
an earlier amendment whereby clause (d) with paragraphs (i) and (ii) were added to section 2(1) of
the said Act, i.e. persons who seduce or attempt to seduce any person subject to the said Act (i.e. a
member of the armed forces) from his duty or allegiance to the Government, or any person accused
of an offence in relation to any defence installation, ship or aircrafts etc. Evidently such person can
be said to have some connection with the Armed Forces. But to make the entire civil population of
the country, or a Province or any part thereof, subject to the Army Act and triable by Courts Martial,
may be termed as a fraud upon the Statute."
..But in the present case when the Courts were admittedly open and functioning without any
hindrance from any section of the population. the Armed Forces have, as a result of this enactment
(Act X of 1977) been placed to a position where Courts Martial set up by them have superseded the
ordinary Criminal Courts. The mere fact that an Army Officer authorised in this behalf can transfer a
case to the ordinary Court in his discretion, does not improve the status of the ordinary Court, but, in
fact, goes to show that they have been subordinated to the discretion of such an Army Officer. It is
thus obvious that instead of acting in aid of the civil power the Armed Forces are acting in
supersession and displacement of the same, "
" 19. Having found that the Armed Forces are acting in such a manner as mentioned above, we are of
the view that the second jurisdictional fact mentioned by the learned Attorney-General, is not
established. Consequently, we hold that clause (3) of Article 245 of the Constitution, does not have
the effect of ousting the Jurisdiction of this Court under Article 199 of the Constitution. " ,
"Moreover, it is for the first time that an Oath has been prescribed for the members of the Armed
Forces in the Constitution of 1973. Earlier they only took an oath prescribed in the Army Act. By
these measures, the framers of the Constitution, the most prominent amongst whom was the Prime
Minister himself, brought the Armed Forces under the command of the Prime Minister and thus
ensured that Martial .'craw cannot be imposed under the Constitution as they have been bound to
uphold the Constitution. Considering these facts in' the light of the speech of the Prime Minister,
reproduced above it is evident that there was a conscious effort to make a fool proof arrangement that
the Martial Law cannot be imposed under the present Constitution of Pakistan. However, if the
Constitution is abrogated, set aside or placed in State of suspended animation or hybernation, it might
be possible to impose Martial Law outside the Constitution. Such an action may or may not be
justified by the Doctrine of Necessity. The reason for such an action would depend on the
circumstances prevailing at that particular time, but the justification or the existence of necessity of
such action would depend on the facts and circumstances of each case."
"Another pertinent fact which requires to be noticed is that the pari materia Articles of the other
Constitutions relating to indemnity (mentioned above) provided not only for passing laws
indemnifying acts done by the concerned persons (including Army Officers) during the period of
Martial Law, but also provided for making of laws validating 'any sentence passed, punishment
inflicted and forfeiture ordered' during that period. But Article 237 of the present Constitution does
not- provide for making laws validating any sentence passed, punishment inflicted and forfeiture
ordered by them, i.e. by Military Courts. This glaring difference clearly indicates that .not only does
the present Constitution not envisage the imposition of Martial Law but it also does not envisage the
exercise by the Armed Forces of any judicial functions, as is being exercised by them under the cover
of the abovementioned amendments in the Army Act. "
In the same report, Karam Blahee Chauhan, J. observed as under:-
..Now there is a well-settled distinction between the action of the military in aid of the civil power or
in other words, under the civil power on the one hand and its independent power of action under the
Marital Law on the other hand. Some of the points of distinction in this respect are as follows:--
"(I) When the military acts in aid of civil power, it acts under the civil power and the civil guidance
or the superintendence and control of the civil power, or to put it otherwise. while dealing with, a law
and order situation, under the supervision of a Magistrate. On the other hand when it acts in exercise
of Martial Law, then it has independent powers both as regards the measures to be taken by it and as
to Courts Martial Reading the requisition of the Chief Minister of Punjab to the G.O.C., Lahore, it
appears that he had authorised the General 'to act in aid of civil power' and exercise such powers and
perform such functions as may be deemed necessary for maintaining law and order and security
within the revenue limits of the Lahore District. W.F. Finlason in the preface to his book titled
'Treatise on Martial Law, as allowed, by the law of England in time of Rebellion' (1866 Edition) has
written at page (iv) that 'as Martial Law can only be declared in a time of rebellion. which amounts to
war, and need not be declared if there is a military force adequate to the occasion (as always has been
the case in this country eversince the Revolution) and, therefore, the action of the -military, in aid of
the civil power, and under the civil power, at common law (which has often been required), has
always been found sufficient; there has naturally arisen a confusion between the function or power of
the military force, when thus acting in aid of civil power, and its function or power under Martial
Law. And from this confusion, of from the notion that Martial Law, in its true sense, has been
abolished by the Petition of Rights, has arisen all the errors upon the subject'. At a later place the
learned Author states 'when, however, the military act in support of the Executive at common law,
that is, to suppress actual riot, or insurrection, they merely act in aid of civil power, and are
subordinate to it; whereas, under Martial Law, the military have independent power of action; for the
whole District, in fact, is placed tinder military command and military discipline, the only authority
being that of the Commanding Officer. All the mistakes that have arisen on the subject have arisen
from confounding these two different, indeed utterly opposite state of things". He supplements the
above in footnote (b) at page (v) when he writes that 'Lord Mansfield particularly, pointed out this
distinction, on the occasion of the. Lord George Gordon riots in 1780. Every man might if required,
must, interfere to suppress riot, much more to prevent acts of treason, felony, or rebellion. This
doctrine, the Lord Chief Justice stated to be the true foundation for the calling on the military to
assist in quelling the late riot. The persons who so assisted were. in contemplation of law, mere
private individuals; and if a military man (i.e. in such case) exceeded his powers, he must be tried
and punished, not by the martial code, but by the common law. Consequently the idea that the
metropolis was under Martial Law, was idle (Adolphus Hist. Eng., Vol. III, p.254). That is, because
they had acted only in aid of the civil power. Otherwise, if it had been Martial Law, it is plainly
implied, that then t, military would only have been liable to Martial Law, so far as regards their acts
in obedience to orders under Martial Law'. On page (xxvi) - he writes that 'the distinction between
the action of the military, in aid , of and under the civil power, and its independent power of action
under Martial Law, was well understood by the General in command, who, in his despatches after the
proclamation of Martial Law, showed a thorough consciousness that the effect was to give the
military independent powers of action to invest him with the supreme direction, ,whether as to
measures to be taken in the field, or as to Courts Martial'. In footnote (c) on that page the Author then
writes, with reference to the famous Martial Law of Jamaica, 'thus, General Nelson, in almost his
first letter to the Commander after Martial Law was declared. wrote: 'All operations have been
satisfactory, except that the force under Capt. Field, acting under civil guidance, has not reached the
point named. The detachment moved before Martial Law was proclaimed; hence Capt. Field is in no
way responsible. It has disarranged my plans, and I have sent stringent orders to Capt. Field, and
hope he will receive them, and thus be relieved from supervision of a Magistrate.' And then he went
on to mention, 'the Court-Martial ordered for this day, has sentenced twenty-five to death, and they
have been hung.' Without any reference to the Governor, and so all through,, the acts of the General
proved that he considered that he possessed" supreme authority in the district and independent
powers of action precisely as in war, without any necessity for reference to the civil ., power. It was
under his authority and by his warrant that a Court Martial assembled to try prisoners; the
proceedings were submitted to''" him for approval; it was he who, in reference to the Commander-in-
',,"~ Chief determined whether or not persons were within the jurisdiction of .~' their offences within
the cognizance of Courts Martial; it was he, who. in the case of Gordon, considered and decided that
question, it was he who decided whether the evidence was sufficient to sustain a charge against the
prisoner; it was he who framed the charge; it was to him the proceedings were submitted, and it was
he who approved; and it was only to the Commander-in-Chief, he submitted them, and it was only
done to afford the Governor an opportunity of exercising his clemency, if he saw fit, that the
Commander-in-Chief sent them to the Governor Ev. Of Eyre Nelson & c). It appears from the
Parliamentary papers, that he distinctly refused to try prisoners, whose offences he considered not to
be within the cognizance of Courts-Martial under Martial Law. His letter stated this, and he so stated,
with perfect frankness, in his evidence" This shows that there is a material difference between the
two aspects, namely, acting in aid of civil power and acting in exercise of Martial Law.
"(ii) The next point of general distinction is that when the ordinary law applies to individuals, there
the emphasis is more towards the protection of an accused, but on the other hand, Martial Law has
application to the whole population in the Martial Law area and has its focus more on public safety or
military exigency than on individual legal criminality probably considering the whole population of
the area as 'suspects „". This is a general basic conceptional difference on which lot can .be written
with reference to its detailed aspects, but I think here mention of this point simpliciter is sufficient for
the purpose of the present case, though I may observe that proclamation of Martial Law is to
establish in the proclaimed district such a state of affairs land species of rules which are altogether
different and opposite to the civil power in respect of (a) offences; (b) penalty; (c) manner of
procedure: (d) power of arrest and (e) mode of trial etc.
"(iii) The third distinction is that acting in ,aid of civil power does not mean replacement of Civil
Courts or civil powers, Martial Law on the other hand means suspension of Civil Courts and is
actually governance of an area through Military Courts. In Miss Asma Jilani v. Government of the
Punjab and another PLD 1972 SC 139 at page 187 it was held that 'where the Civil Courts are sitting
and Civil Authorities are functioning the establishment of Martial Law cannot be justified'. "
"8. This brings me to study the scope and effect of Article 245 of the Constitution to find out as to
whether it contemplates imposition of any Martial Law or temporary governance of the country or a
district, or, as a matter of fact, of any area by Military Courts in replacement of the Civil Courts or
for declaring or treating any area as Martial Law area with the general incidents of that adventure as
highlighted above in contradistinction to acting in aid of civil power. For this purpose, at this stage,
reference may be made to Constitutional history of this country so far as relevant for the precise point
under study. The position under the 1956 Constitution, the 1962 Constitution. The Interim
Constitution and the present 1973 Constitution is indicated below with reference to the relevant
Articles:-
"Article 196 (1956 Constitution): Parliament to make laws on indemnity etc.--Nothing in the
Constitution shall prevent Parliament from making any law indemnifying any person in the service of
the Federal or a Provincial Government, or any other person, in respect of any act done in connection
with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force,
or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under
Martial Law in such area."
"Article 223-A (1962 Constitution): Laws relating to indemnity------
Nothing in this Constitution shall prevent the Central Legislature from making any law indemnifying
any person in the service of the Central or a Provincial Government, or any other person, in respect
of any act done in connection with the maintenance or restoration of order in any area in Pakistan
where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture
ordered or other act done under Martial Law in such area. "
"Article 278 (Interim Constitution): Laws relating to indemnity----
Nothing in this Constitution shall prevent the Federal Legislature from making any law indemnifying
any person in the service of the Federal or a Provincial Government, or any other person, in respect
of any act done in connection with the maintenance or restoration of order in any area in Pakistan
where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture
ordered or other act done under Martial Law in such area."
"Article 237 (1973 Constitution): Parliament may make laws of indemnity etc.--Nothing in the
Constitution shall prevent Parliament from making any law indemnifying any person in the service of
the Federal Government or a Provincial Government, or any other person, in respect of any act done
in connection with the maintenance or restoration of order in any area in Pakistan. "
"If we study the present Article 237 (reading it together with . Article 245) we note that the Federal
Government can direct the Armed Forces of Pakistan, subject to law, 'to act in aid of civil power"
when called upon to do so. This shows, firstly, that as per Article 245 the scope of calling the Army
confining ourselves to the subject in hang, is restricted simply to act in aid of civil power and not in
supersession of the civil power. If civil power in judicial sphere is being exercised by Ordinary Civil
Courts, the same cannot be suspended or replaced by Military Courts. This is one essential
demarcating barrier. Which cannot be crossed so as to enhance the power, jurisdiction or role of
Armed Forces in this context. Secondly, if we compare Article 237 with the previous corresponding
Article 278 of the Interim Constitution, Article 223-A of 1962 Constitution and Article 196 of 1956
Constitution we note that whereas in all predecessor Articles the word 'Martial Law' duly occurred,
this word was significantly omitted from Article 237. This shows that if under any of the previous
Articles there was a scope for imposing what may be called, Martial Law against internal
disturbances (which was the theme of the previous Articles and the present Article 237), that was
done away with. After having so buried that idea, as was announced by Mr. Zulfikar Ali Bhutto
himself in his speech quoted in our earlier short order, it is no longer justified to bring it back again
by means of general amendments in existing laws or by promulgation of such new laws which
purport to authorise governance through Military Tribunals by replacement; of Civil Courts in the
garb of making law for acting in aid of the civil power . . . . . "
"It was suggested by the learned Attorney-General that the omission of the various words
abovequoted was simply for the purpose of eliminating Martial Law of the type; of a successful coup
which this country had to experience at the hands of two Generals, .namely, Muhammad Ayub Khan
in 1958 and Agha Muhammad Yahya Khan in 1969. This plea cannot be accepted, because, the type
of coup suggested wherever it takes place, it takes place by dint of its own might and force and is to
be examined from a variety of principles and concepts altogether different from the subject of which
we are seized at the moment. Some of the principles relevant for examination of a coup are (i) the
principle of effectiveness; (ii) the principle of legitimate disobedience to authority exercised for
improper purposes; (iii) the principle; of. necessity; (iv) the principle that violation of a right
demands a remedy and that no one should profit from his own wrongful act; (v) the principle that a
Court will not permit itself to be used as an instrument of injustice; (vi) the principle that it is in the
public interest that those in de facto impregnable control should be accorded legal recognition; (vii)
the principle, common to both public and private international law land which Grotius considered a
central tenet of natural law that promises are to be kept: pacta sunt servanda. A Government elected
under a Constitution expressly or impliedly pledges with the electorate that it will hold to the
Constitution. If it abrogates that Constitution, it breaks faith with the electorate and therefore,
contravenes this principle unless and until it submits itself once more to the same electorate to
express its acceptance or rejection of the action; (viii) the principle that Government should be by
the. consent of the governed, whether voters or not. There is nothing new in this principle. Authority
can be found in political writings at least from the Middle Ages to the present day;, (ix) other norms
of international law relevant to the situation. (See "Principles of revolutionary legality", by J.M.
Eekelar published in Oxford Essays in Jurisprudence Edited by A.W.B. Simpson (Second Series) by
Clarendon Press Oxford, 1973 at pages 22 to 43. (At this place I may add a footnote and that is that
the submission of the learned Attorney-General with regard to burial of such types of Martial Law
incidentally has turned out to be very ironical, because, when this judgment is being written, some
time earlier thereto on 4/5th of July 1977, in fact a Military coup has taken place, as a result whereof
Mr. Zulfikar Ali Bhutto has been deposed from his office of Prime Minister; the National and
Provincial Assemblies have been dissolved and the country is making brisk preparation for fresh
general elections under the command of General Muhammad Zia-ul-Haq, who has taken over the
administration of the country and is acting as the Chief Martial Law Administrator- The Pakistan
National Alliance (P.N.A.) leaders have welcomed this change. Mr. Zulfikar Ali Bhutto has also
shown his Party's agreement to take part in the next General Elections which have been scheduled to
take place on the 18th of October, 1977. Mr. Zulfikar Ali Bhutto has also made a statement that he
will not challenge the constitutionality of the present Military regime (before or during the elections).
However. reverting and confining myself to the subject in hand the omission of the word "Martial
Law", in Article 237 was intended to eliminate imposition of any type of Martial Law in case of
simple internal disorder or imposition of one more type of Martial Law, which was pointed out by the
learned counsel and which was, according to them, imposed on some earlier occasion in this country
and was described by those who imposed it as an "Awami Martial Law", fourthly, a perusal of
Chapter Il (Armed Forces) in Part XII of the Constitution (Articles 243 to 245 shows that the control
and command of Armed Forces unlike the previous Constitutions, now vests in the Federal
Government, i.e. the Prime Minister, who is the Chief Executive Head of that Government. Article
90(.2) states that, 'in the performance of his functions under the Constitution, the Prime Minister may
act either directly or through the Federal Ministers'. This will show that the pattern of our
Constitution is to vest all executive authority in the Prime Minister who is obviously a political head
of a political party. His orders and directions may sometimes partake of the character of political
orders and political directions, for example, for stemming up his own political party and position at
all cost, even during periods when otherwise it may become very shaky for various reasons. Lest he
may utilise Army for his own political ends, Article 245 is a check on him when it states that armed
forces can be called under his directions only 'to act in aid of civil power' and not beyond that. This
check to this way purports to save the minority from the tyranny of the majority and also cave those
who oppose Government policies from the wrath of the group in power. It will, therefore, be in
keeping with the object and spirit of this Article -if it is held that it does not authorise a political
Government to rule through Armed Forces so as to clothe them with such powers and jurisdiction
which purport to replace the civil power. This clearly negates the deployment of Armed Forces as a
machinery for running the Government through them or for imposing Martial Law for that purpose.
Fifthly, the phrase 'subject to law' in Article 245, if read in the light of what has been written above
and in the context in which it occurs, shows that in addition to the already restricted scope of the
purpose for which the Army is to be called, namely, in aid of civil power, its scope may further be
limited or controlled by law and not that it is to be increased by any subsidiary law beyond the
barriers contained in Article 245 itself. If the scope of the Article is simply 'to act in aid of civil
power', it cannot be enlarged by ordinary laws, inasmuch as, that which is not authorised by the
Constitution cannot he authorised by other laws. Sixthly, the words 'subject to law' from another
point of view mean that while acting aid of civil power the Armed Forces are not to get open licence
to do anything they like at their sweet or arbitrary will, and shall remain subject and answerable to
law if they exceeded the relevant limits. This is to keep the activities of the Armed Forces, when
acting in aid of civil power, under control rather to allow them to go out of bounds. There is yet
another aspect of the words 'subject to law' which has been dealt with in a later place of this judgment
in connection with the relevant context and subject mentioned therein. "
"Therefore, the Army will replace the functionaries concerned of the aforesaid powers. If answer is in
the negative, the same should be the reply to any attempt to govern the country or any part thereof by
Military Tribunals instead of Civil Courts or the civil powers."
........ In my opinion, general power of the Parliament to establish Special Tribunals or Courts may
straightaway be conceded but the point in the instant case. however, is different Here the matter is
not to be approached from the point of view of any vested right of trial under any particular
procedure or under any particular enactment or by any particular forum, but from the point of view of
the competency of the concerned Tribunal itself to try the offender. If the Armed Forces, when they
are called in aid of civil power in any particular area, are themselves unqualified to be bestowed any
judicial power, e.g. of the kind in dispute here, under Article 245, then the defect and infirmity lies in
them and .at that end and place and not anywhere else. The aforesaid infirmity or lack of competency
cannot be cured by invoking the concept of absence of vested right of an offender in any particular
procedure."
....... Since the scope and sphere of action of Army in this exercise is strictly limited to aiding the
civil power it is this infirmity which disqualifies it to act in supersession of the Civil Courts and even
an Act
of Parliament will not enable them to perform such judicial functions unless scope of Article 245 is
first suitably amended for this purpose. "
In the same report, Shameem Hussain Kadri, J. observed as follows:-
"Can it be said that the Executive and Judicial Authorities while acting in aid of Supreme Court
supersede or divest the Supreme Court of all the judicial powers or replace it by their own authority.
The plain answer is 'No'. The other phrase 'subject to law' clearly indicates that the Armed Forces
have to function subject to law and that is obviously in aid of civil power. Civil power is in
contradistinction to Military Power or Army Power, Civil Power, I have already discussed has three
limbs, namely, executive power, legislative power and judicial power. Can the Armed Forces acting
in civil aid take upon themselves all these three functions and can they style themselves ac Martial
Law Administrators. The answer is obviously in the .'Negative' . The instructions and orders issued
by the Martial Law Administrators of different zones and the press releases have been placed on the
record. Some of them reflect that the Army is alleged to have over-stepped in all the three fields.
"This clearly creates distinction that at home eversince 1915 no British subject has been tried even
during the war by a Military Court. At page 517 under the heading 'The Emergency Powers
(Defence) Acts, 1939 and 1940 it is laid down 'for securing the public safety, the defence of the
realm, the maintenance of public order and the efficient prosecution of any war in which High
Majesty may be engaged, and for maintaining supplies and services essential to the life of the
community section. 1 gave a general power to His Majesty by Order in Council to make such
Regulations as appear to him to be necessary or expedient ………."
" 19. It has also been noticed from the above discussion that Courts Martial are not regular Courts
and by no stretch of imagination can be called Courts established by law. I am afraid, I cannot agree
with the learned Attorney-General that Courts Martial are Courts established by law under Article
175 of the Constitution. Courts Martial are convened and are never permanent. Whenever there is an
offence a Courts Martial is convened. 'Establish' in Shorter Oxford Dictionary, Vol. I, 3rd Edn.,
Reprint 1950-52, is defined to mean to fix, institute or ordain permanently, to set, up or bring about
permanently. The following observation from Asma Jillani's case at page 237 is also relevant:
'An order passed under Martial Law Regulation 78 by a Martial Law Authority could not, however,
be challenged by virtue of Presidential Order 3 of 1969. The object with which this Regulation was
issued was, therefore, to interfere with the judicial functions of Courts.'
"As both President's Order No.3 of 1969 and Martial Law Regulation 78 were intended to deny to the
Courts the performance of their judicial functions, an object opposed to the concept of law. Neither
would be recognised by Courts as law."
In the said report, Zakiuddin Pal, J. observed thus:-
':The provision of Article 245 does not authorise the Armed Forces to act in such manner. If they
replace or supersede the civil power, issue directions or instructions to that, take over the ordinary
administration of the area where they have been called to render aid to the civil authority, take such
measures and issue such directions which aim at legislation and law making, then such activities of
the Armed Forces would not be within the scope of Article 245. The said Article authorises the
Armed Forces to act in aid and not in supersession of civil authority."
Reference. was made to the. case of Benazir Bhutto (supra), wherein at page 515, Saleem Akthar. J.
observed as follows:-
“...... It has been made clear time and again in several judgments of this Court that after the
separation of Judiciary from the Executive, the executive authority or the Executive Magistrates
cannot try, adjudicate or pass any sentence against any person. Such act would be coram non judice.
The executive authorities can pass such sentence or order only if they are properly authorised under
law by the High Court concerned."
44. In a recent judgment passed by the Supreme Court of India in the case" of. Naga People.'s
Movement of Human Rights v. Union of India (AIR 1998 SC 431), while determining the scope of
Armed Forces (Special Powers) Act (28 of 1958), the Court took the view that the Act was not a law
in respect of maintenance of public order and Parliament was competent to enact it. Expression "in
aid of civil power" was used in Entry 2-A of List 1 and Entry 1, List 11, was explained in the
following words:-
"23. A perusal of Entry 1 of the State List would show that while power to legislate in order to
maintain public order has been assigned to the State Legislature, the field encompassing the use of
Armed Forces in aid of the civil power has been carved out from the said Entry and legislative power
in respect of that field has been expressly excluded. This means that the State Legislature does not
have any legislative power with respect to the use of the Armed Forces of the Union in aid of the
civil power for the purpose of maintaining public order in the State and the competence to make a
law in that regard vests exclusively in Parliament. Prior to the Forty Second Amendment to the
Constitution such power could be inferred from Entry 2' of the Union List relating to naval, military
and air forces and any other Armed Forces of the Union as well as under Article 248 read with Entry
97 of the Union List. After the Forty Second Amendment the legislative power of Parliament in
respect of deployment of Armed Forces of the Union or any other force subject to the control of the
Union or any contingent or unit thereof in any State in aid of the civil power flows from Entry 2-A of
the Union List. The expression 'in aid of the civil power' in Entry 1 of the State List and in Entry 2-A
of the Union List implies that deployment of the Armed Forces of the Union shall be for the purpose
of enabling the civil power in the* State to deal with the situation affecting maintenance of public
order which has necessitated the deployment of the Armed Forces in the State. The word 'aid'
postulates the continued existence of the authority to be aided. This would mean that even after
deployment of the Armed Forces the civil power will continue to function. The power to make a law
providing for deployment of the Armed Forces of the Union in aid of the civil power in the State
does not comprehend the power to enact a law which would enable the Armed Forces of the Union to
supplant or act as a substitute for the civil power in the State. We are, however, unable to agree with
the submission of the learned counsel for the petitioners that during the course of such deployment
the supervision and control over the use of Armed Forces has to be with the civil authorities of the
State concerned or that the State concerned will have the exclusive power to determine the purpose,
the time period and the areas within which the Armed Forces should be ,requested to act in aid of
civil power. In our opinion, what is contemplated by Entry 2-A of the Union List and Entry 1 of the
State List is that in the event of deployment of the Armed Forces of the Union in aid of the civil
power in a State, the said forces shall operate in the State concerned in cooperation with the civil
administration so that the situation which has necessitated the deployment of the Armed Forces is
effectively dealt with and normalcy is restored.
"74. In the light of the above discussion we arrive at the following conclusion:-
(1) Parliament was. competent to enact the Central Act in exercise of the legislative power conferred
on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry
2-A in List 1 by the ,Forty Second Amendment to the Constitution, the legislative power of
Parliament to enact the Central Act flows from Entry 2-A of List I. It is not a law in respect of
maintenance of public order falling under Entry of List II.
(2) The expression 'in aid of the civil power' in Entry 2-A of List I and in Entry 1 of List 11 implies
that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power
in the State to deal with the situation affecting maintenance of public order which has necessitated
the deployment of the armed forces in the State.
(3) The word 'aid' postulates the continued existence of the authority to be aided. This 'would mean
that even after deployment of the armed forces the civil power will continue to function.
(4) The power to .make a law providing for deployment of the Armed Forces of the Union in aid of
the civil power of a State does not include within its ambit the power to enact a law which would
enable the Armed Forces of the Union to supplant or act as a substitute for the civil power in the
State. The armed forces of the Union would operate in the State concerned in cooperation with the
civil administration so that the situation which has necessitated the deployment of armed forces is
effectively dealt with and normalcy, is restored.
(5) The Central Act does not displace the civil power of the State by the Armed Forces of the Union
and it only provides for deployment of Armed-Forces of the Union in aid of the civil power.
(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is
not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency
under Article 352 or a Proclamation of Emergency under Article 352 or a proclamation under Article
356 of the Constitution.
(7) Section 3 of the Central Act does not confer an arbitrary or unguided power -to declare an area as
a 'disturbed area'. For declaring an area as a 'disturbed area' under section 3 there must exist a grave
situation of law and order on the basis of which the Governor/Administration of the State/Union
Territory, of the Central Government can form an opinion that the area is in such a disturbed or
dangerous condition that the use of the armed forces in aid of the civil power is necessary.
(8) A declaration under section 3 has to be for a limited duration and there should be periodic review
of the declaration before the expiry of six months.
(9) Although a declaration under section 3 can be made by the Central Government suo motu without
consulting the concerned State Government, but it is desirable that the State Government should be
consulted by the Central Government while making the declaration.
(10) The conferment of the power to make a declaration under section 3 of the Central Act on the
Governor of the State cannot be regarded as delegation of the power of the Central Government.
(11) The conferment of the power to make a declaration under section 3 of the Central Act on the
Central Government is not violative of the Federal scheme as envisaged by the Constitution.
(12) The provisions contained in sections 130 and 131 Code cannot be treated as comparable and
adequate to deal with the situation requiring the use of armed forces in aid of civil power as
envisaged by the Central Act.
(13) The powers conferred under clauses (a) to (d) of sections 4 and 5 of the Central Act on the
officers of the armed forces, including a Non-Commissioned Officer are not arbitrary and
unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution.
(14) While exercising the powers conferred under section 4(a) of the Central Act, the officer in the
armed forces shall use minimal force required for effective action against the person/persons acting
in contravention of the prohibitory order.
(15) A person arrested and taken into custody in exercise of the powers under section 4(c) of the
Central Act should be handed over to the officer-in-charge of the nearest police station with least
possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest
excluding the time taken for journey from the place of arrest to the Court of Magistrate.
(16) The property or the arms, ammunitions, etc. seized during the course of search conducted under
section 4(d) of the Central Act. must be handed over to officer-in-charge of the nearest police station
together with a report of the circumstances occasioning such search and seizure.
(17) The provisions of Code governing search and seizure have to be followed during the course of
search and seizure conducted in exercise of the powers conferred under section 4(d) of the Central
Act.
(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to
grant or refuse sanction for instituting prosecution or a suit or proceeding against any person in
respect of anything done or purported to be done in exercise of the powers conferred by the Act does
not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or
granting the sanction under section 6 is subject to judicial review, the Central Government shall pass
an order giving reasons.
(19) While exercising the powers conferred under clauses (a) to (d) of section 4 the officers of the
armed forces shall strictly follow the instructions contained in the list of 'Do's and Don'ts' issued by
the Army authorities which are binding and any disregard to the said instructions would entail
suitable action under the Army Act, 1950.
(20) The instructions contained in the list of 'Do's and Don‟ts' shall be suitably amended so as to
bring them in conformity with the guidelines contained in the decisions of this Court and .to
incorporate the safeguards that are contained in clauses (a) to (d) of section 4 and section 5 of the
Central Act as construed land also the direction contained in the order of this Court dated July 4,
.1991 in Civil Appeal No.2551 of 1991.
(Z1) A complaint containing an allegation about misuse or abuse of the powers conferred under the
Central Act shall be thoroughly inquired into and, if on inquiry it is found that the allegations are
correct, the victim should he suitably compensated and the necessary sanction for institution of
prosecution and/or a suit or other proceedings should be granted under section 6 of the Central Act.
(22) The State Act is, in pith and substance, a law in respect of maintenance of public order enacted
in exercise of the legislative power conferred on the State Legislature under Entry 1 of List II.
(23) The expression 'or any officer of the Assam Rifles not below the rank of Havildar' occurring in
section 4 and the expression ' or any officer of the Assam Rifles not below the rank of Jamadar' in
section 5 of the State Act have been rightly held to be unconstitutional by the Dehli High Court since
Assam Rifles are a part of the armed forces of the Union and - the State Legislature in exercise of its
power under Entry I of List II was not competent to enact a law in relation to armed forces of the
Union.
(24) The rest of the provisions of sections 4 and 5 of the State Act are not open to challenge under
Article 254 of the Constitution on the ground of repugnance to the provisions contained in Code and
the Arms Act.
(25) The considerations governing the exercise of the powers conferred under sections 3 to 6 of the
Central Act indicated above will also apply to exercise of powers conferred under sections 3 to 6 of
the
State Act.
(26) The directions Nos. (i) and (ii) given by the Gauhati High Court in its judgment dated March 20,
1991 cannot be sustained and must be set aside. "
45. The expression 'use of the Army in aid. of the civil power' has been discussed in various
decisions from the American Jurisdiction wherein a view has been taken that the civil power in the
country is supreme and the situation is not changed by the incident of war. It was observed that the
Militia in active service and in any emergency that arises in such service, is subordinate to the civil
power. The soldier and the citizen stand alike under the law. Both must obey the command of the
Constitution and obedient to its mandates. The Armed Forces have to act within the scope of their
jurisdiction as defined under the Constitution as long as the acts of the Armed Forces fall within the
scope of their jurisdiction the same are protected while such are in excess of their jurisdiction, are
exceptionable. It is only where the civil power is completely broken, Courts in the country have
ceased to function, the danger of imposition of Martial Law cannot be ruled out notwithstanding the
provisions of Article 6 of the Constitution, which provides that any. person who abrogates or
attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use
of force or show of force or by other unconstitutional means shall be guilty of high treason. But in all
other cases, the expression to call the Armed Forces "in aid of civil power" excludes the substitution
of Civil Courts by the Military Courts. The Armed Forces should be kept in strict subordination to be
governed by the civil power and the State as is apparent from a bare reading of Article 243 of the
Constitution, which provides that the Federal Government shall have the control and command of the
Armed Forces. The necessity of the Armed Forces for the preservation of the society, peace, defence.
integrity and solidarity of Pakistan. cannot he under-estimated. Needless to say that during the
present emergency and until the danger of terrorism and internal disturbances is removed, the Armed
Forces may be called by the Federal Government to "act in aid of civil power" 'subject to law' and
confer on it such other powers as the situation may require. However, the Armed Forces cannot be
permitted to substitute the ordinary Civil Courts while acting "in aid of civil power". A Government
elected by the Constitution can only perform its functions and ensure observance of the provisions of
the Constitution by • making the civil power superior to and not subordinate to the Armed Forces
during peace as well as war. This is the foundation stone of Constitution of Pakistan ac reflected in
Article 2A that sovereignty over the entire universe belongs to Almighty Allah alone and the
authority to be, .exercised by the people of Pakistan within the limits prescribed by Him is a sacred
trust and that the State shall exercise its powers and authority through the chosen representatives of
the people, wherein the fundamental rights shall be guaranteed, including equality of status, of
opportunity and before law, social, economic and political justice and freedom of thought,
expression, belief, faith, worship and association, subject to law and public morality and that the
independence of the Judiciary shall be fully secured. Clearly, the integrity of the territories of the
Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall
be safeguarded by the Armed Forces, under the control and directions of the Federal Government.
The term 'in aid of civil power' implies that some assistance may be necessary to the civil power for i
the performance of its functions and not the taking over of the civil powers, especially the judicial
powers of the Judiciary.
Support may be sought from the following decisions of American Jurisdiction, wherein both the
expressions: "civil power"-and "in aid of" have been exhaustively dilated upon:
.Ex parte Zimmerman 132 F. 2d 442 1942 US App. Lexis 2620:
In the Constitutions of the original states, seven contained express provisions to the effect that the
military was under subordination to the civil power. All such provisions were similar to the one to
the Maryland Constitution (1776), "That in all cases, and at all times, the military ought to be under
strict subordination to and control of the civil power". Declaration of Rights SS 27. The Delaware,
Georgia, New Jersey and New York Constitutions had no express, provisions. In addition to the other
seven Constitutions, the Vermont Constitution (1793) also had the subordinating provision.
United States v. Red Feather (392 F.Supp.916:1975 U.S. Dist. Lexis 12984) .. :~
Opinion;...Originally a section inserted into an Army Appropriation Act as a backwash of the

Reconstruction period following the Civil War. Its legislative history, as set forth in Lieber, The Use
of the Army in Aid of the Civil Power, indicates that the immediate objective of the legislation was
to put an end to the use of federal troops to police state elections in the ex-Confederate States where
the civil power had been re-established .... "
Luther v. Borden (48 US1: 1849 US Lexis 337: 12 L.Ed. 581: 7 How 1).
..(*59) (**133)(***606) manifest from the fact that they not only declared „martial‟ law to exist over
the State, but put their militia into pal y, the field to help, by means of them and such a law, to
suppress the action of those denominated 'insurgents,' and this without any subordination to the civil
power, or any efforts in conjunction and in cooperation with it. The defendants do not aver the
existence of any civil precept which they were aiding civil officers, to execute, but set up merely
military orders under martial law ...."
Duncan v. Kahanamoku 9327 US 304: 66 S. Ct.606:
Concur: ....(*325)(**616)(***36) pretended offences is the hallmark of despotism. See The

Federalist, No.83. History had demonstrated that fact to them time and again. They shed their blood
to win independence from a ruler who they alleged was attempting to render the 'Military
independent of and superior to the Civil power' and who was 'depriving us ...of the benefits (***37)
of Trial by Jury.' In the earliest state Constitutions they inserted definite provisions . placing the
military under 'strict subordination' to the civil power at all times and in all cases. And in framing the
Bill of Rights of the Federal Constitution they were careful to make sure that the power to punish
would rest primarily with the civil authorities at all times "
Buttrev v United States (690 F.2D 1186; 1982 US:
Opinion: This is not the kind of thing which would offend the historically dominant and
constitutionally required separation of military and civil power, and the supremacy of the civil power
over the military power, and accordingly, the motion for summary judgment by the plaintiff is
denied. The motion for summary judgment on this count by the defendant is granted. .
Ex parte Gilroy (9257 F.110: 1919 US):
Opinion: The statute relates to the civil power of the executive. It has no relation to the military arm,
except in so far as the exercise of the civil power adjectivally aids the military arm. The statute does
not provide for any hearing, and necessarily so. To have required that there should have been hearing
before the executive could seize or detain an alien enemy would have defeated the protective and
safeguarding objects of the enactment at the threshold. If...."
United States v Minoru Yasui (48. Supp.40; 1942 US):

Opinion: The rationale of both the main and concurring opinions is that the civil power in this
country is supreme. Neither directly nor indirectly can the military power become dominant. The
Constitution, laws and treaties of the United States control. Nor is the situation changed by the
incidence of war. This doctrine has been reaffirmed many ...."
United States ex rel Palmer v Adams (26 F.2d 141; 1927 US):
Opinion: In my opinion, the State authorities must take one of two positions: Either that martial law
is justified and declared, and the territory taken over, and the civil power made subordinate to the
military, or else they must recognize the civil power, and allow it to deal with the situation. I cannot
see any middle ground. I am not saying that the facts would not justify the Governor In declaring
martial law, or that he could be called. account if he so declared."
Grafton v United States (206 US 333: 27 S Ct.749: 1907 US Lexis 1167; 51 L.Ed.1084):
Opinion: ...(*348)(**752)(***27) time of peace by an officer or soldier of the Army. The crimes
referred to in that Article manifestly embrace those not capital, committed by officers or soldier of
the Army in violation of public law as enforced by the civil power. No crimes committed by officers
or soldiers of the Army re-excepted by the above Article from the jurisdiction thus conferred upon
Courts-Martial, except those that are capital in their nature. While.... "
Constantin v.Smith (5.7 F.2D 227; 1932 US.Dist. Lexis 1105):
Opinion: ....(*238)(**22) Chief of its Army. As the Chief Civil Magistrate of the State, he calls out
and must direct in accordance with law the movements and operations of the military forces. The
military shall be at all times and in all cases 'in strict subordination to the civil power'. It is so written
in section 22 of the Bill of Rights. We have not. and cannot have, in this state a military force that is
not and will not be subordinate to the civil authorities. The military cannot in any state o1 case take
the initiative or assume to do anything independent of the civil authorities. Ours is a Government of
civil, not military, forces. The militia in active service and in every emergency that arises in such
service is subordinate to the civil power. The soldier and the citizen stand alike under the law. Both
must obey its commands and be obedient to its mandates ...."
Sterling v. Constantin (287 US 378; 53 S.Ct.190; 1932 US Lexis 793; 77 L.375):

Opinion: ....(*401)(**196)(***39). Fundamentally, the question here is not of the power of the
Governor to proclaim that a state of insurrection, or tumult, or riot, or breach of the peace exists, and
that it is necessary to call military- force to the aid of the civil power. Nor does the (**197) question
relate to the quelling of disturbances and the overcoming of unlawful resistance to civil authority.
The question' before us is simply with respect to the Governor's (*402) attempt to regulate by
executive order the lawful use of complainants' properties (***40) in the production of..."
Dow v. Johnson (100 US 158; 188879 US Lexis 1821; 25 L.Ed.632; 10 Otto 158:
....(*188)(**61)(***643) Mallory v: Bryant, 17 Conn. 178; 6 Waite, Actions and Defences, 49. Acts
of military officers within the scope of their jurisdiction (*189) are protected, while such as are in
excess of their jurisdiction are actionable. Id. 107.
When and where the civil power is suspended, the President has a right to govern by the military
forces, but in all other cases the civil power excludes martial law and Government by the war power.
Ex parte Milligan (71 US 2. 1866 US Lexis 861 : 18 L Ed 281 : 4 Wall. 2).
“……….(**6) except those employed in the Army or Navy, and except the militia in actual service,
but by the authority of the Legislature:" by the Constitution of Pennsylvania of 1776. 'that he (**62)
military should tie kept tinder strict subordination to and governed by the civil power.' by the
Constitution of Delaware of 1776, 'that in all cases, and at all times. the military ,ought to be under
strict subordination, to and governed by the civil power;' by that of Maryland of 1776, 'that to all
cases. and at all times the military ought to be under strict subordination, to, and control of the civil
power;' by that of North Carolina. 1776, 'that the military should be kept under strict subordination
to. and governed by the civil power:' by that of South Carolina. 1778. that the military be subordinate
to the civil power of the State' and by that of Georgia. 1777. that 'the principles of the habeas corpus
act shall be pan of this Constitution, and freedom of the press, arid trial by jury, to remain inviolate
forever "
Kinsella v. United States ex rel. Singleton (361 US 234, 80 S Ct 2971960 US Lexis 1742; 4 L.Ed.2d
268):_
……….(*268)(**305)(***59) Army might be detrimental to liberty; on the other was the necessity
of an Army for the preservation of peace and defence of the country n17 The problem of providing
for essential forces and also of assuring enforcement of the unanimous determination to keep them in
subjection to the civil power was resolved by inserting the provision that no appropriation for the
support of the Army could be made for a longer period than two years (Art. 1, SS 8, cl.12). and b. the
continuance of the militia" ....
Chandler v. United States (171 F.2d 921: 1948 US App Lexis 3138:
"...(*936)(**42) Foregoing was originally a section inserted into an Army Appropriation Act as a
backwash of the Reconstruction period, following the Civil War. Its legislative history, as set forth in
Lieber, The Use of the Army in Aid of the Civil Power, n4 indicates that the immediate objective of
the legislation was to put an end to the use of federal troops to police state elections in the ex-
Confederate States where the civil power had been re-established. In contrast to the criminal statute
denouncing the crime of treason, this is the type of criminal statute which is properly presumed to
have no extra-territorial' application in the absence of statutory language indicating a contrary intent.
See the……….
Ex part Duncan (153 F.2d 943, 1946 U.S. App. Lexis 1997):
" ....(*956)(**23) On the other hand when our own Military Authorities. acting under martial law,
exercise extraordinary power over our own people, they do so in subordination to the civil power.
Their function (**24) is not to conquer and govern but to defend and sustain the civil power.”
Kam Koon .Wan v. E.E. Black. Ltd. (188 F .2d 558, 1951 US App Lexis 3525: 19
Lab.Cas.(CCH)yp.66 297)
" ...(*560)(**3) The Governor further authorised and requested the 'Commanding General, Hawaiian
Department ***during the present emergency and until the danger of invasion is removed, to
exercise all the (civil) powers normally exercised by me as Governor ***and ***to exercise the
powers normally exercised b` Judicial Officers and employees of this territory ***and such other and
further powers as the emergency may require."
Mississippi v. Johnson (71 US 444475 , 1866 US Lexis 897 , 18 L.Ed.437; 4 Wall. 475):
....(**3) In short, to exert sovereign power over it--and the utter destruction of the State must be the
consequence of their execution. they also violate a well known salutary principle in Governments, the
observance of which can alone preserve them, by making the civil power subordinate to the military
power, and thus establish a military rule (**4) over the States enumerated in the Act, and make a
precedent by which the Government of the United States may be converted into a military despotism,
iii which ...."
Toth v. Talbott (113 F.Suny.330; 1953 US Dist. Lexis 2574):
"...(,1331)(**3) This subject is a very (.**4) serious one, as the Court sees it: One of the foundation
stones of our republic is that the civil power shall at all times be superior to the military power. It is a
grave matter for military police to arrest a civilian and remove him for trial forthwith, without a
hearing, to a distant point in this..."
ALR Federal; Copyright (C) 1997 Lawyers Cooperative Publishing Co. (141 A.L.R. Fed.271):
"Taken together, the Posse Comitatus Act and the exceptions thereto reflect the principle articulated
in the Constitution and federal statutes that civil power is superior to military power, except when
civil power is suspended, as in times of war or public danger. The Act limits, but r does not prohibit,
the use of military personnel to assist in the Enforcement of civil law. "
Nagel v. ADM Investor Servs. (96 CV .2675 (consolidated with 96 C 2741, 96 C 2879, and 96 C
2972):
"...(*6) Court may grant the requested relief under the All Writs Act, 28 USC SS 1651, which
provides that "the Supreme Court and all Courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions ....' The Nagels also rely on the "in
(*7) aid of jurisdiction", exception in the Anti-Injunction Act; 28 USC SS 2283, which provides that
a Federal Court 'may not grant an injunction to stay proceedings in a State Court except ....where
necessary in aid of its jurisdiction... "
In response, Oberbeck correctly points out that the Anti-Injunction Act's 'in aid of jurisdiction'
exception parallels the 'in aid of jurisdiction' provision in the All Writs Act, so the Nagels cannot
proceed under the All Writs Act unless they fall, within the ambit of the 'in aid of jurisdiction'
exception to the Anti-Injunction Act: See Winkler v. Eli Lilly & Co., 101 F.3d 1196.1201 (7th
Cir.1996). Oberbeck also contends that, if the Court granted the requested relief, it would... "
Carlough v. Amchem Prods. (10 F.3d 189; 1993 US App. Lexis 31166:
"A Court of the United States may not grant an injunction to' stay proceedings in a State Court except
as expressly authorised by Act of Congress, or where necessary in aid of its jurisdiction, or to protect
or effectuate its judgments.
The All-Writs Act in part provides that:
'The Supreme Court and all Courts established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'
' In granting the injunction, the District Court relied on the parallel 'necessary in aid of jurisdiction'
language of the two Acts and cited several cases in which Federal 'Courts have enjoined or upheld
injunctions against absent class members who have initiated a duplicative State Court suit, derived
from the same ...."
In re: Joint Eastern and Southern Dist. Asbestos Litig. (134 F.R.D. 32; 1990 US Dist. Lexis 18126):
... ...(*36)(**13) The present circumstances, the power to enjoin the pending State cases falls (**14)
within the 'necessary in aid of jurisdiction' exception to the Anti-Injunction Act.
'Courts have interpreted the 'necessary in aid of jurisdiction' exception liberally 'to prevent a State
Court from ……….interfering with a Federal Court's flexibility and authority' to decide the case
before it ... ..."
Eyco, Inc. v. Commissioner of Internal Revenue (T.C. Memo 1995499: 1995 Tax Ct. Memo. Lexis
497; 70 T.C.M. (CCH)1035).
'... ...(*4) Petitioner did not report, the $35,625 on its 1989 Federal income-tax return. In her notice of
deficiency, respondent determined that the $35,625 was includible in petitioner's income for 1989 as
'contributions in aid of construction' under section 118.
'At trial and in its briefs, petitioner argued that: (1) The contribution by 'McArthy (escrowed funds) is
not a "contribution in aid of construction" within the meaning of section 118(b), but a non-taxable
contribution to the capital of Imperial; (2) if the payment is a "contribution in aid of construction",
including such amount in the income of a Corporation would violate the Sixteenth Amendment; and
(3) in the alternative, the fair market value of McArthy's contribution should be based on the revenue
generated by the sewer line rather than the..."
United States v. Johnson (738 F.Supp.594;1990 U.S.Dist.Lexis 13640.
"The final issue to be addressed is the challenge. to the sufficiency of the indictment itself. The
defendants had argued that the phrase "in aid of a faction and, body of insurgents" as charged in the
indictment was too vague or indefinite absent some further description or definition. This objection
has been cured by the superseding indictment. The allegation "in aid of a factor and body of
insurgents" has been particularized to "in aid of the Provisional Irish Republican Army, a faction and
body of insurgents within Northern Ireland and elsewhere in the Untied Kingdom. " The defendants
make no argument that the Provisional Irish Republican Army should not be considered to be..."
AK Steel Core. v. Chamberlain (974 F.Supn.1120;1997 U.S.Dist.Lexis 12557:
"AK Steel also argues that an injunction is authorized under the 'necessary in aid of jurisdiction'
exception. The general rule under the "necessary in aid of its jurisdiction" exception is that where
State and (* 1124) Federal Courts have concurrent jurisdiction over a case, neither Court may prevent
the parties from simultaneously pursuing claims in both Courts. Atlantic Coast Line R.R., 398 U.S. at
295. The phrase 'necessary in aid of jurisdiction' 'implies that some federal injunctive relief may be
necessary to prevent a State Court from so interfering with a Federal Court's consideration or
disposition of case as to seriously impair the Federal Court's flexibility and authority to ..."
In re: Innotron Diagnostic (800 F 2d 1077 ; 1986 US Ann Lexis 20332 231 U.S.P.Q. (BNA) 178;
1986-2 Trade Cas (CCH) P67 273: 5 Fed.R. Serv. 3d (Callaghan) 1156:
"Thus the key phrases useful in determining whether this Court will entertain petitions to mandamus
a District Court are ' in aid of its jurisdiction' in SS 1651 and the Supreme Court's reference to "in
proper circumstances` in La Buy.
"In (*14) Aid of Its Jurisdiction":
"Where this Court would have jurisdiction over an appeal from a final judgment, it clearly has power
under SS 1651 to (*1082) overturn a District Court order that would prevent that appeal or would
otherwise frustrate this Court's exercise of its proper..."
46. The learned Attorney-General also relied on the observations of Abdul Kadir, C.J. in the case of
Niaz Ahmed Khan (supra) that the directions issued by the Federal Government under Article 245 of
the Constitution calling upon the Armed Forces "to act in aid of civil power" does not amount to
imposition of "martial law". He also frankly conceded that the expression "Martial Law" does not
find any place in the Constitution but took the plea that the direction issued by the Federal
Government under the Ordinance pursuant to Article 245 of the Constitution is intra vires. Reference
was also made to the following observations of Abdul Kadir, C.J. in the case of Niaz Ahmed Khan
(supra):-
"I have already noticed in the earlier part of this judgment that use of Armed Forces in aid of civil
power in case of failure of the machinery of the civil power may be needed by Civil Courts
themselves for the purpose of performing their own functions, or otherwise the function of g the
Civil. Court may itself be threatened. I am, therefore, clearly of the view that the provisions
contained in the newly-added clauses of Article 245 do not offend. against the inherent framework of
the Constitution. "
Reference may be made to the case of Darvesh M. Arbey (supra), wherein a Full Bench of the Lahore
High Court, Lahore held that the Federation had no authority under Article 245 of the Constitution to
confer judicial powers on the Armed Forces. The Armed Forces could only "act in aid of the civil
power" and not in replacement thereof. On these premises, it can safely be inferred that the Armed
Forces cannot replace the Judiciary. Following paragraphs in the report may also be referred:-
"Thirdly, another significant factor to be taken serious note of is that whereas in the corresponding
Articles power for passing of indemnity Acts extended inter alia to 'sentence passed, punishment
inflicted or forfeiture ordered' but these words have also been omitted from the present Article 237
which supports the view that the deletion of both namely, of the word 'Martial Law' and the other
words hereinbefore quoted was with an intent to do away with imposition of Martial Law or exercise
of judicial powers by Army during that period and to
restrict Army assistance only to the extent of acting in aid of civil power and not to set up Courts
Martial etc."
". . . if I can so add 'supersedes the civil power'. This measure being beyond the scope of Article 245
is ultra vires of the aforesaid provision of the Constitution and cannot be maintained. It was conceded
by the learned Attorney-General that when Armed Forces were called in aid of civil power they could
not be bestowed and nor would the „,. automatically possess any legislative power so as to
promulgate such directions, instructions or orders which are of a legislative character am nor could
they of their own prescribe penalties for violation of them aforesaid directions, instructions or orders
.... "
"This also shows that the scope of Article 245 did not envisage bestowment of legislative powers on
the Armed Forces. In other words, this means that while acting in aid of civil power the Armed
Forces cannot take over legislative power of the Parliament and Provincial Assemblies and nor, I
supposed, can they take over the power of the President, the Prime Minister, the Federal Government
or the Provincial Governments all of whom exercise certain civil powers. Similarly, they cannot, in
my opinion, replace Civil Courts just as they cannot replace the functionaries and authorities
hereinbefore mentioned. It will be anomalous to hold that the executive functionaries cannot be
replaced but judicial Civil Courts are to be replaced under Article 245. " "....To continue the subject
the civil powers may embrace executive powers, diplomatic power, pardoning power, emergency
power and miscellaneous powers. The list is merely illustrative and not exhaustive,
Therefore, the Army will replace the functionaries- concerned of the aforesaid powers. If answer is in
the negative, the same should be the reply to any attempt to govern the country or any part thereof by
Military Tribunals instead of Civil Courts or the civil powers. "
"....without apparently retaining any supervisory or controlling power over their activities under the
Defence of Pakistan Ordinance amounted to act in replacement of civil power or in aid of civil power
of the Government concerned etc."
". . . . . army has` , beer! placed in a dominant position over the Federal Government, inasmuch as,
the Special Tribunals Courts established by the Federal Government under the Defence of Pakistan
Ordinance. will suffer a setback in the exercise of their jurisdiction and will be able to
"High Court shall supervise and control all Courts subordinate to it". Such control and supervision
can be achieved only when the Judiciary is administratively and financially separate from the
Executive. Separation of Magistracy is the first step towards separation and independence. The next
step should be taken to devise proper scheme and frame rules dealing with financial problems within
the framework of the Constitution. So long financial independence is not achieved, it will be difficult
to improve the working conditions, accommodation, building and expansion to meet the growing
needs of the people. "
" 15.. .. .. .. .. .. .. .. .. Magistrates separately were not included in the above Notification nor they have
been enforced till today. It will not be out of context to mention that in 1952 Justice (retired) Din
Muhammad, who was the then Governor of Sindh converted all posts of City Magistrates, Civil
Judges and Ist Class Magistrates and brought the incumbents in the cadre of Civil Judges and placed
them under direct control of the District Judge and of the High Court. In other words in the interior of
Sindh Civil Judges exercise the power of Ist Class Magistrates but unfortunately there are still
Magistrates in the interior of Sindh exercising executive and judicial powers jointly". The structure
and its implementation and proper functioning is available and should not pose any problem to other
Provinces. If in Sindh the Ordinance could be implemented within two days of the promulgation of
the Ordinance XII of 1972, why it has not seen the light of the day in other Provinces for the last
more than twenty years. The mandate and command of Article 175 must be obeyed and
implemented; and laxity in this regard will amount to violation of Constitutional ,provisions and
perhaps the judicial orders passed by the functionaries under the control and superintendence of the
Executive may be challenged, which will create embarrassing situation for the Government and the
administration of justice shall be seriously jeopardized .. .. .. ... ... ... .. "
In the case of Niaz Ahmed Khan (supra), ABDUL QADIR SHEIKH, C.J observed as under:-
Government under Article 245 of the Constitution calling upon the Armed Forces 'to act in aid of
civil power'. Elaborate arguments were addressed at the Bar whether the direction amounts to
imposition of 'Martial Law'. The expression 'Martial Law' does not find any place in the Constitution,
the question, therefore, arises whether on the direction issued by the Federal Government under
Article 245 of the Constitution, use of Armed Forces in aid of civil power can be termed as Martial
Law."
'On the subject of Martial Law much has been said by their Lordships
of the Supreme Court; I am, however, tempted to quote a passage on this topic from International
Encyclopedia of the Social Sciences, Volume 10 at Chapter 315:-
"The term 'martial law' describes the exercise of military force to preserve order and ensure the
public safety in domestic, territory in a time of emergency, when the civilian authorities are unable to
deal with the situation. In one form or another, under such names as 'state of siege' or 'state of
emergency', the concept is found in every country. In some countries it is almost the normal type of
Government. In Anglo American law, its only proper purpose is to restore order with a view to the
restoration of civilian Government, and the degree to which the Military may properly assume
Governmental functions depends entirely on the needs of the situation. In its mildest form Martial
Law may amount to no more than the employment of troops, in aid of and under the direction of the
Civil Authorities, to supplement the regular police in the control of riots and other public disorders
and the enforcement of the law, as was done in connection with integration of the schools in
Arkansas and Mississippi. At the other extreme. if the emergency is great enough, such as actual or
imminent invasion, the. Military Authorities may assume all the functions of Government, including
the legislative and judicial. In such a situation statutes and even the Constitution may be suspended
and replaced by Ordinances of the military commander, and the civilian Courts superseded by
Military Tribunals. Such Courts, although they bear a generic resemblance to Courts-martial, are not
bound to follow the same procedure, but may employ whatever rules are called for by the needs of
the emergency. The best known example of such a situation in recent American history is the
declaration of martial law in Hawaii immediately after the Japanese attack on Pearl Harbor.
"Martial law is nowhere explicitly mentioned in the Constitution but is simply an inherent attribute of
sovereignty, the right of every Government to take whatever steps are necessary for its own
preservation.` As such it is a part, although an extraordinary part, of the common law. Although the
Constitution does not explicitly either authorize or limit the executive's invocation of martial law. It
is now well established that there are Constitutional checks upon the exercise of this power. To the
extent that the measures of martial law encroach upon the citizens' rights under State and Federal
Constitutions, the Civil Courts have jurisdiction to determine whether the measures taken are in fact
commensurate with the emergency and to annul them to the extent that they are more drastic than the
Court deems requisite. Although the Courts are usually disposed to give considerable weight to the
executive" judgment of the crises, there are numerous cases in
methods of investigation, expeditious submission of challan to the trial Courts, security of

witnesses/litigants as well as the Presiding Officers of the Courts and to take long/short term
measures including appropriate increase in the strength of Judges in the light of the various reports of
the Law Commission.
TRICHOTOMY OF POWERS,
49. Thus visualized, the Courts established pursuant to the impugned Ordinance do not fall within the
purview of any of the Constitutional provisions The Constitution envisages trichotomy of powers of
the three organs of the State, namely, Legislature, Executive and the Judiciary. The Legislature is
assigned the task of law-making, the Executive to execute such laws and the Judiciary to construe
and interpret the laws. None of the organs of the State can I encroach upon the fields allotted to
others. The Constitution does not countenance the take-over of the judicial functions by the Armed
Forces at the direction of the Federal Government in the purported exercise of power conferred on it
under Article 245 of the Constitution. Article 245 does not by itself create the law but enables the
making of a law which should have nexus with the phrase 'to act in aid of civil power'. The
replacement of Courts either partially or wholly is not recognized under any provisions of the
Constitution. A bare reading of Article 243 would show that the Armed Forces are subject to the
control and authority of the Federal Government i.e. a civilian Government. No circumstances
existed in the country which indicated the breaking down of the judicial organ, necessitating
establishment of Military Courts. It is imperative for the preservation of the State that the existing
judicial system should be strengthened and the principle of trichotomy of power is adhered to by
following, in letter and spirit, the Constitutional provisions and not by making deviation thereof on
any ground whatsoever.
50. The principle of Trichotomy of Power, as envisaged by the Constitution, has been highlighted in
the case of Zia-ur-Rehman (supra), which may also be referred to, wherein Hamoodur Rehman, C.J.,
at page 66 (A&B) of the report, observed:-
...... As the learned Attorney-General has himself conceded, in the case of a Government set up
under a written Constitution, the functions of the State are distributed amongst the various State
functionaries and
their respective powers defined .by the Constitution. The normal scheme under such a system, with
which we are familiar, is to have a trichotomy of powers between the Executive, the Legislature and
the Judiciary. But each of these organs may itself be fashioned in a variety of different shapes and
forms. Thus the Legislature may be unicameral or bicameral; the legislative subjects may be divided
between the federating units and the federation in a federal system or even the legislative power may
be divided between the Executive and the
Legislature as in our present system. The Executive may take the Presidential or the Parliamentary
form. The Judiciary also may consist of various types and grades of Courts with the highest at the
apex either as an ultimate Court of Appeal or a Court of Cassation. There may also be other
administrative Tribunals outside the judicial pyramid."
"In all such cases, it will also be the function of the Constitution to define the functions of each organ
or each branch of an organ as also specify the territories in which, the subjects in respect of which
and sometimes even the circumstances in which these functions will be exercised by each of these
organs or sub-organs. Limitations would, therefore, be inherent under such a system so that one
organ or sub-organ may not encroach upon the legitimate field of the other. Thus, under a written
Constitution, the Legislature of a Federal Unit will not be able to Legislate in respect of a subject
which is within the field of the Federal Legislature, nor will a Federal Legislature be able to legislate
upon a subject which is within the exclusive field of the Legislature of the Federating Units. It
cannot, therefore, be said that a Legislature, under a written Constitution, possesses the same powers
of 'omnipotence' as the British Parliament. Its powers have necessarily to be derived from, and to be
circumscribed within the four corners of the written Constitution."
51. The term 'Court' as used in the Army Act was intended to include Courts Martial as distinguished
from Martial Law Courts. The latter Courts are established during the continuance of Martial Law
either during war or even when due to internal disturbances the Civil Administration/Government
completely comes to an end. Military Courts as distinguished by Courts Martial envisaged under the
Army Act, 1952, are primarily meant for maintaining discipline in the Armed Forces. The mere fact
that the procedure prescribed for trial of offences is mentioned in the Schedule attached to the
Ordinance, the provisions of Army Act and the Rules made thereunder are applicable, would not
convert these Courts into Courts Martial. The Courts Martial are the creatures of Army Act and
Naval Act and Air Force Act, which authorise them to decide cases of persons subject to Army Act
and to pass orders of sentences in f accordance with law. Having regard to the object for which they
are created, the functions which they perform, fall within the term. "Court" as used in the Army Act,
Naval Act, Air Forces Act but do not form part of the judicial hierarchy established under Article
175(1) of the Constitution. The decisions rendered by the Courts Martial are entitled to very great
respect but are relatable only to persons subject to Army Act but they cannot exercise jurisdiction as
is exercised by the ordinary Courts with respect to civilians. The Courts Martial can exercise
jurisdiction only with respect to persons who are members of the Armed Forces and in certain cases
even in civilian offences in respect of those persons alone. But there is no statute, law or any
provision of the Constitution conferring jurisdiction on the Military Courts, to try the civilians. It is
true that the cases before the Courts Martial are to be disposed of expeditiously but it was never
intended under the scheme of the Constitution that under any circumstances they will also hear the
cases of the civilians, the adjudication of dispute in respect of whom can only be done by the
ordinary Courts as distinguished from Military Courts created under the impugned Ordinance. It is
true that the existing conditions, in which the law has to be applied cannot be ignored in adjudging its
validity because it is relatable to the object sought to be achieved. It is also true that terrorism and
other criminal activities are negation of the principles of democracy, freedom, equality, tolerance and
social justice as enumerated by Islam. A law made to facilitate maintenance of law and order and/or
to restore peace and curb terrorism, which is the spirit behind the Objectives Resolution, now
forming part of the Constitution by Article 2A of the Constitution, is permissible. But in making such
a law the Constitutional provisions cannot be permitted to be contravened. Clearly, an accused
charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair
trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if
Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned
Ordinance, no provision of appeal has been provided against the orders of the Military Courts before
the Supreme Court nor their functioning and supervision have been made subordinate to it Thus
visualized, they do not fulfil the criteria of a "Court" exercising judicial functions within the purview
of the guidelines provided in the case of Mehram Ali (supra). The establishment of Military Courts
is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the
impugned legislation does not fall within the category of reasonable classification. Thus visulalised,
notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb
terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called
intra: vires of the Constitution.
52. Needless to say that Courts today are choked by 'legal pollution' and the society has become
litigus. The goal of access to justice is defeated, when too many claims overwhelm the limited
resources of the Courts. The right to participate in the legal process as envisaged by the Constitution
and a valid law is fundamental to a just society. If the citizens are deprived of their Constitutional
rights to have access to justice in accordance with the Constitution and the law because they are
unable to utilize the Courts effectively for the resolution of their disputes or the disputes between the
Government and the citizens or that a particular class of citizens is excluded from having access to
justice by creating a parallel judicial system i.e. a 'barrier' to access to justice, certainly such a course
would be repugnant to the Constitutional mandate provided under Article 5 of the Constitution that
obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may
be and of every other person for the time being within Pakistan while Article 4 thereof guarantees the
right of individuals to be dealt with in accordance with law. The right of access to justice to all is
enshrined in the Constitution, which is also found in the doctrine of 'due process of law'. Such a right
includes the right to be treated according to law; the right to have a fair and proper trial and the right
to have an impartial Court or Tribunal. In Al-Jehad Trust case (supra), it was held that without
having an independent Judiciary, the fundamental rights F enshrined in the Constitution will be
meaningless and will have no efficacy or beneficial value to the public at large. It would be
advantageous to reproduce an observation of Justice Harlan in the case of Boddie v. Connecticut 401
US 371 (1971), which runs as under:-
"Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection
and enforcement of a system of rules defining the various rights and duties of the members enabling
them to govern their affairs and definitively settle their differences in an orderly predictable manner
It is to Courts that we ultimately look for the implementation of a regularized, orderly process of
dispute settlement (Yet) without due process of law, the State's monopoly over techniques for
binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by
providing that the social enforcement mechanism must function strictly within these bounds can we
hope to maintain an ordered society that is also just."
53. Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far
as it takes away the adjudicatory powers of the Judiciary. In this connection, reference may also be
made to the observations in G the Mehram Ali's case (supra), wherein one of us (Irshad Hasan Khan,
J.)
observed thus:--' .....
Efficiency in the Courts is serious national problem, an expression of greater public concern than
even the threat of war. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973,
enjoins upon the State to ensure 'inexpensive' and 'expeditious justice'. Thus visualized, speedy
resolution of civil and criminal cases, is an important Constitutional goal, as envisaged by the
principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special
Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous
offences have to be subject to Constitution and law. Viewed in this perspective, no objection can be
taken to the establishment of Special Courts for speedy trials and prevention of terrorist acts/heinous
offences under the Anti-Terrorism Act, 1997 (Act No.XXVII of 1997) (hereinafter referred to as the
Act):
The Special Courts are, therefore, validly constituted Courts but they have to perform judicial
functions under the Constitution and the provisions contained in the Act except those which have
been declared ultra vires in the proposed judgment of the Hon'ble Chief Justice."
The Chief Justice of Australia, in an address given on 22nd October, 1997, when he was Chief
Justice of the New South Wales, said:-
"Judges regard the Judiciary as the third arm of Government, separate from and independent of the
two political arms, the Legislature and the Executive. Their duty is to maintain the rule of law , to
uphold the Constitution, and to administer civil and criminal justice, impartially, according to law ....
"The independence of the judicial arm of Government is not a benefit w-)n by Judges on some
ancient industrial battlefield, and now jealously guarded as a perquisite of office. It is a
Constitutional principle with sound practical rationale. Justice must be, and be seen to be
administered with impartiality. Executive Governments are themselves major litigants. Almost all
criminal cases are fought as contests between the Government and a citizen. Governments are
frequently involved in civil litigation, either directly or through corporations in which they have a
stake. Courts are sometimes called upon to determine disputes between different Governments, or
between the legislative and the executive branches of Government."
"Judicial independence is an element of the Constitutional system of checks and balances, and is the
primary source of assurance of judicial impartiality."
The case of Mehram Ali (supra), was also favourably commented upon by the International Bar
Association, Human Rights Institute, in its Report of Establishment of Rule of Law, Human Rights in
the Legal System of Pakistan, (December, 1998), at page 33 of the report it was observed:-
"The IBA mission heard from all quarters of the very great concern about terrorism within Pakistan.
There is understandable and huge resentment at the generally accepted perception that terrorism is
encouraged and financed from beyond Pakistan's borders. In legal circles we heard also of concern at
some aspects of the Special Courts set up to hear trials of those accused of terrorist crimes; and
concern also at some aspects of the special powers granted to the police and law enforcement
agencies--powers intended to strengthen the hand of those charged with combating terrorism but
which are, all too often, powers that are seen to be abused in ways that violate the rights of citizens.
We welcome the recent judgment by the Supreme Court of Pakistan that goes some way to meeting
these concerns.
"There can be little argument with those statements. The controversy arises, 'however, in discussion
of the most effective, fair and just means of addressing the problem; and in the context of Pakistan, in
the question of whether or not the structures of the State are capable of delivering such remedies. The
first is an issue of balance--between the threat to human rights posed by terrorists and the threat
posed by measures put in place to seek to eliminate them. The second is an issue of administration
and political will.''
"Pakistan and all other States that feel compelled to adopt special powers to combat terrorism would
be well served by adopting and applying the universally accepted international standards for the
conduct of law enforcement agencies, prosecutors, Courts and prisons. Adequate safeguards should
be introduced to complement special powers. These safeguards should ensure that there is redress
when counter-terrorist forces breach international standards; by so doing, the law enforcers seize the
moral high ground in the fight against terrorism, thereby earning and retaining the support of-the
population, enhancing respect for the rule of law and strengthening political stability--all of which
are an anathema to the terrorist. "
The recommendations of the Commission, inter alia, are as under:-
"The Government should ensure, to the maximum extent possible, that ordinary laws and normal
Courts are used to combat crime, including terrorism.
When the Government takes special powers to combat crime, including terrorism, these should be
accompanied by safeguards, for example, an independent investigative body made up so as to enjoy
the confidence of Government, law enforcers and the population, providing a means of redress when
allegations are proven that law enforcers have exceeded their powers; such powers should be in
accord with international norms.
Government should review urgently the many reforms of the police recommended by internal and
international reports, and expedite their implementation. In particular, specialist training is required
for dealing with terrorist crimes, particularly, in forensic evidence.
Strict legal guidelines should be in place for obtaining and proving confessions in Court. In serious
cases a confession should only be admissible if voluntarily made to a police officer of the rank of
Assistant Superintendent or above.
"...,....human rights/fundamental rights are being fully taken care of in the Anti-Terrorism Laws and
in the trials of those accused in Special Courts. Amendments have been made to the Anti-Terrorism
Act, 1997
to bring the provisions made in line with the judgment PLD 1998 SC f .:: 1445 of the Supreme
Court."
54. Let me now deal with 'The Anti-Subversion Act Cases" under the Phillippines jurisdiction, which
have been dealt with in the following words:-
"In the face of what it called "the organized, systematic; end persistent subversion, posed by the
Communist Party of the Philippines, Congress enacted on June 20, 1957 special legislation to meet
the menace'.
"The Anti-Subversion Act of 1957 declares the Communist Party of the Philippines 'an organized
conspiracy to overthrow the Government of the Republic of the Philippines x x x for the purpose of
establishing in the Philippines a totalitarian regime subject to alien domination and control'. The Act
punishes any person who "knowingly, wilfully and by overt acts affiliates himself with, becomes or
remains a member of the Communist Party of the Philippines and or its successor or of any
subversive association XXX."
"In People v. Ferrer (48 SCRA 382), the accused Feliciano Co and Nilo Tayag succeeded in
obtaining from the trial Court a dismissal of the indictments against them for violation of the Act on
the ground of its unconstitutionality. The principal argument raised is that the Act is a bill of
attainder--a law which inflicts punishment without trial and substitute a legislative for a judicial
determination of guilt. Denials of - due process, equal protection, and right of association were
arguments also raised against the validity of the Act. On appeal by the Government, the Supreme
Court reversed the ruling of the trial Court upheld the constitutionality of the Act. In the process, the
Court explained what membership would result in criminal conviction.
"The Court, speaking through then Associate Justice Fred Ruiz Castro, held that the Act is not a bill
of attainder because 'it does not (actually) specify the Communist Party of the Philippines or the
members thereof for the purpose of punishment. What it does is simply to declare the Party to be an
organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated
in section 4, against membership in the outlawed organization. The term Communist Party of the
Philippines is used solely for definitional purposes."
"Taking note of its own decisions from the 1932 prosecutions of Communists to the Habeas Corpus
Cases of 1971, the Court, held that the legislative finding that the Communist Party of the Philippines
was a subversive organization is so universally acknowledged to be certain that judicial hearing is not
needed to fairly make such determination. In answer to the objection that in bills of attainder
Congress assumes judicial functions, the Court pointed out that the prohibition of the Anti-
Subversion Law applies not. to past conduct but only to acts committed after its approval."
"To show that the incidence of punishment falls on defined activities, not on individuals and not on
mere membership, the Court stated that the 'Government has yet to prove at the trial that the accused
joined the Party knowingly, wilfully, and by overt acts, and that they joined the Party, knowing its
subversive character and with specific intent to further its basic objective, i.e., to overthrow the
existing Government xxx."
"On the due process claim, the Court ruled that the prohibition against membership in the Party was
justified by the congressional finding of its subversive objectives. The Court also found the interest
in freedom of expression and association so in substantial as to be outweighed by the interest in
national security.
"While the Court upheld the law's validity, it nonetheless prescribed basic guidelines to be observed
in criminal prosecutions under the Act. The guidelines require proof of (1) the organization's purpose
to overthrow the Government and establish a totalitarian regime under the domination of a foreign
power. (For the Communist Party of the Philippines, that it continues to pursue the objectives which
Congress found and declared in 1957); (2) the accused joining such an organization; and (3) the
accused doing so knowingly, wilfully, and by overt acts."
"In a motion for reconsideration, one of the private respondents argued that knowing membership
alone in a subversive organization cannot constitutionally be the basis of criminal prosecution under
the Act. He asked that the Court guidelines include proof of direct participation in the illegal
activities of the organization. "
"In denying the motion, the Court stated that the Act is a conspiracy statute. The gist is the agreement
itself rather than action taken pursuant to it. To require proof of direct participation in substantive
offenses constituting the object of the conspiracy in addition to proof of agreement would render
ineffectual the conspiracy device in penal law. The Court explained that the requirement of
membership being proved by overt acts is only to preclude convictions obtained solely on the basis of
incriminating evidence rather than positive acts of the defendant. But the overt act requirement may
be satisfied by proof of non-criminal and relatively minor acts in pursuance of the objectives of the
conspiracy such as signing membership papers, paying dues, and attending meetings which, in
themselves, may not be illegal."
Under 'The 1971 Habeas Corpus Cases' the case of Lansang v. Garcia (Montenegro v. Castaneda, 91
Phi1.882 (1952), was discussed as follows:-
"The Presidential proclamation suspending the privilege of the writ stated that certain 'lawless
elements ... ...enjoying the active moral and material support of a foreign power ... ...have entered
into a conspiracy and have in fact joined and banded ... ...
"Together for the avowed purpose of staging, undertaking, waging and are actually engaged in an
armed insurrection and rebellion in order to forcibly seize political power in this country and
overthrow the duly constituted Government..." Again the question was raised, whether the Court
could inquire into the bases of the proclamation. This time the Court held it could. It explained that
the power to suspend the writ is limited and conditional and, therefore, like other Constitutional
limitations, those imposed on the suspension of the writ "could be inquired into by Courts of justice."
"But the Court said the scope of review was a limited one, i.e.,, limited to determining whether the
President acted arbitrarily. The Court quoted with approval Solicitor-General Antonio's formulation
of the test:'
"Judicial inquiry into the basis of the questioned proclamation can go 4 no further than to satisfy the
Court not that the President's decision is correct and that public safety was endangered by the
rebellion and justified the suspension of the writ, but that in suspending the writ, the'; President did
not act arbitrarily."
"It stressed that its function was merely 'to check--not to supplant--the v Executive'. .For its function
was not 'identical to, or even comparable $,f with, its power over. ordinary civil or criminal cases
elevated thereto by a ordinary appeal from the inferior Courts, in which the Appellate Court'' has all
of the powers of the Court of origin. " .
"Then the Court, taking into account, the testimony of members of the Armed Forces and a Senate
committee report on Central Luzon, in light of the political condition in the country, concluded that
there was 'no doubt about the existence of a sizeable group of men who have publicly risen in arms to
overthrow the Government and have thus been and still are engaged in rebellion against the
Government of the Philippines
The Court said that it was 'not prepared to hold that the Executive had acted arbitrarily or gravely
abused his discretion' in suspending the privilege of the writ of habeas corpus. Through Chief Justice
Conception it held:
"Considering that the President was in possession of the above data-- except those related to events
that happened after August 21, 1971-when the Plaza Miranda bombing took place, the Court is not
prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion when he
then concluded that public safety and national security required the suspension of the privilege of the
writ, particularly, if he NPA were to strike simultaneously with violent demonstrations staged by the
two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and
cooperation of the dozens of CPP front organizations, and the bombing of water mains and conduits,
as well as electric power plants and installations--a possibility which no matter how remote, he was
bound to forestall, and a danger he was under obligation to anticipate and arrest."
"He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical as, indeed, it was--and demanded immediate action. This he took believing in good faith that
public safety; required it. And, in the light of the circumstances adverted to above, he had substantial
grounds to entertain such belief."
"Indeed, the legal order in the Philippines had broken down in many parts. A large part of the country
was in rebellion. The authority of the Government was openly challenged by the coalition of forces."
"Aggravating the problems of internal security were problems of unemployment. Monsoon rains in
July brought floods the likeness of which had not been seen before, laying waste to a large portion of
the economy of the country. Reform in agriculture remained unimplemented. "
"Some sectors of the press and other media of communication had become licentious. Corruption did
not spare the press from its enervating effect on the whole nation. In a distorted view of its duty in a
free society, the media played up crime and violence on the pretext that it was the way to stir the
nation's conscience by now numb. To describe the unbridled criticism of the Government . as simply
the exercise of the right and the discharge of the duty of the press in an open society is to pervert the
Constitutional guaranty of press freedom."
"It was against this background of violence and anarchy that Martial Law was proclaimed by
President Marcos on September 21, 1972."
"Martial Law Cases" have been dilated upon thus:-
"As stated earlier, the President lifted the suspension of the privilege of the writ of habeas corpus on
January 11, 1972, only to proclaim Martial Law eight months later on September 21, 1972. In his
Proclamation No' 1081, the President, citing the increase in the number and area of operation of
the radical left, its strengthened military arm (the New People's Army), the introduction into the
country of arms and material, said that the rebellion had 'assumed the magnitude of an actual
state of war against our people and the Republic of the Philippines.' He commanded the armed
forces to suppress the rebellion and ordered the arrest and detention of those guilty of rebellion
or insurrection and all other crimes and offences committed 'in furtherance or on the occasion
thereof or incident thereto, or in connection therewith, "
. "Petitions for writs of habeas corpus were immediately flied by or on behalf of those
arrested. In Aquino v. Ponce Enrile, the Court was divided whether it could pass on the
sufficiency of the factual bases for the proclamation of Martial Law. Six (Justices Barred,
Makasiar, Antonio, Esguerra, Fernandez and Aquino) thought that the question was political
and, therefore, beyond the power of the Court to determine. On the other hand, four (Justice
Castro, Fernando, Teehankee, and Munnoz Palma) followed the ruling in Lansang v. Garcia
that the Court could inquire into the factual bases for the President's determination, not for the
purpose of checking whether he acted correctly but only that he did not act arbitrarily. One
member, Justice Teehankee, voted to dismiss the petitions on the ground of mootness as a
result of the filing of charges against one of the petitioners (Benigno S. Aquino, Jr.) and the
release of the rest.
"As there was no majority, the vote of eight Justices being now ;required under the new
Constitution, no ruling was made in this case on the power of the Court to review the
President's decision to proclaim martial law. 1t is noteworthy, however, that while the Court
was thus split on this question, there was nevertheless almost unanimity among the members
that Presidential Proclamation No.1081 was valid the members were almost unanimous in the
view that the rebellion which necessitated the suspension of the privilege of the writ of
habeas corpus in 1971 had escalated instead of abated. In reaching this conclusion the Court
took into account its findings in past cases, principally in 1971 the Habeas Corpus cases
(Lansang v. Garcia) which, as already noted, relied on the testimony of military experts,
Government reports, and judicial notice, in light of existing conditions.
"Having found the existence of a rebellion, the Court held it to be a reasonable measure for
the President to order the arrest and detention of those involved in the rebellion. It ruled that
the privilege of the writ of habeas corpus was impliedly suspended by the proclamation of
Martial Law: Two members of the Court, Justice Fernando and Munoz Palma, disagreed on
this point. They thought that without an express order by the President, the privilege of the
writ could not be presumed suspended:" '
“……………………………………………”
'A Military Tribunal Case' was dealt with in the following words:--
"Next is the trial of civilians charged with national security offenses by Military Tribunals.
This appears to be the most critical question in martial law situations. Some American Court
cases appear to' equate martial law with the supersession of Civil Courts by Military
Tribunals. In Ex pane Milligan and Duncan v. Kahanamoku, the U.S. Supreme Court
nullified the convictions of civilians by Military Courts. While the language of the opinions
in these cases appears to be broad, the actual holding is narrow. The Milligan ruling is based
on the finding that Indiana was a loyal State during the Civil War and that in fact the Civil
Courts in that state were open and in the unobstructed exercise of their functions. On the
other hand, in the Duncan case the petitioners were charged before the provost Court with
crimes which had no relation to the emergency in Hawaii as a result of the bombing of Pearl
Harbor. "
"In Aquino v. Military Commission No.2 the Supreme Court sustained the jurisdiction of
Military Tribunals to try civilians accused of crimes related to the objective of Martial Law,
on the ground that 'prompt and effective trial and punishment of offenders' were essential to
the exercise of martial law powers. The Court held that the 'mere power of detention may be
wholly inadequate .for the exigency,' and that "due process of law does not necessarily mean
a judicial proceeding in the regular Courts."
"This case is distinguishable from the Milligan and Duncan cases on two grounds. In the
Aquino case, there was a previous finding that martial law had validly been imposed (see the
Martial Law cases), whereas in the Milligan case the Court found that Indiana, during the
Civil War, was a loyal State, not a theatre of war. Hence the Court's statement that 'martial
law. cannot arise from a threatened invasion. The necessity must be actual and present; the
invasion real, such as effectually closes the Courts and deposes the civil administration'. The
'open Court' theory has been criticized by some commentators as unrealistic, in view of the
nature. of subversion. Moreover, .there is support in American law for the view that given the
validity of martial rule, the use of Military Tribunals for the trial of offenses relating to the
objectives of the proclamation may fairly be justified."
"Similarly in the Duncan case the trial took place eight months, in the case of White, and two
years and two months in the case of Duncan after the bombing of Pearl Harbor by the
Japanese. Hawaii was no longer in danger of invasion. In fact its Courts had by then been
authorized by the Military Governor 'to exercise their normal functions', after they were
closed down. The opinion of the Court by Justice Black concluded: "The phrase 'martial law'
as employed in that (Organic) Act, therefore, while intended to authorize the Military to act
vigorously for the maintenance of an orderly civil Government and for the defence of the
Islands against actual or threatened rebellion or invasion, was not intended to authorize the
supplanting of Courts by Military Tribunals." Justice Burton and Frankfurter dissented. They
said:
"One way to test the soundness of a decision today that the trial of petitioner(s) were
unconstitutional. procedures, is to ask ourselves whether or not on those dates, with the war
against Japan in full swing. this Court would have, or should have granted a writ of habeas
corpus,
an injunction or a writ of prohibition to release the petitioners orb otherwise to oust the
provost Courts of their claimed jurisdiction ...I believe that this Court would not have been
justified in granting the relief suggested at such times. Also I believe that this Court might
well have found itself embarrassed had it ordered such relief and then had M attempted to
enforce its order in the theatre of military operations, at a time when the area was under
martial law and the writ of habeas corpus was still suspended. . ,
"What is more, the charges against the petitioners in the Duncan case were for embezzlement
and brawling, which had no relation to the invasion for which reason martial law was
declared.
"There may indeed be reason for the use of Military Courts rather than regular Courts in
martial law situations. It may happen that the Judges are in active sympathy with the rebels.
Judges may be unwilling to to the rebels out of fear. (United States v. Wolters, 269 F 69
(1920). Still another reason for trial by Military Tribunals is the possibility that the
accused might exploit procedural advantages available in the Civil Courts and render military
operations against the rebellion difficult. "
Also refer 'Martial Law and the New Society in the Philippines' 3rd Edition, 1977.
55. Between World War I and World War II and thereafter military had extended its
jurisdiction over all the civilian crimes by including such crimes as O'Challhan rape. The
question in the said case under the American jurisdiction was whether 'rape' was a Federal
crime or a State crime. O'Callhan's attorney, Victor Rabinowitz, one of New York's best-
known and most controversial lawyers, argued before the Court that: "rape is not a Federal
crime. It is a State crime". The conclusion of the Court's decision reads thus:-
"We have concluded that the crime to be under military, jurisdiction must be service
connected ………In the present case petitioner was properly absent from his military base
when he committed the crime with which he is charged. There is no connection--not even the
remotest one--between his military duties and the crimes in question. The crimes were
not committed on a military post or enclave; nor was the person whom he attacked
performing any duties relating to the military. Moreover, Hawaii, the suits of the crime, is not
an armed camp under military control, as are some of our far-flung outposts.
"Finally, we deal with peacetime offences, not with authority stemming from the war power.
Civil Courts were open. The offences were committed within our territorial limits, not in the
occupied zone of a foreign country. The offence did not involve any question of the flouting
of military authority, the security of a military post, or the integrity of military property."
Reference may also be made to an extract from an often-quoted lecture at the New York
University Law Center on February 1, 1962, by Chief Justice Earl Warren, which is as
follows:-
"So far as the relationship of the military to its own personnel is concerned, the basic attitude
of the Court has been that the latter's jurisdiction is most limited. Thus, the Supreme Court
has adhered consistently to the 1863 holding of Ex parte Vallandigham that it lacks
jurisdiction to review by certiorari the decisions of Military Courts. The cases in which
the Court has ordered the release of persons convicted by Courts-Martial have, to date, been
limited to instances in which it found lack of military jurisdiction over the person so tried,
using the term 'jurisdiction 'in its narrowest sense. That is, they were all cases in which the
defendant was found to be such that he was not Constitutionally, or statutorily, amenable to
military justice ....
"This 'hands off' attitude has strong historical support, of course is indisputable that the
tradition of our country, from the time of the Revolution until now, has supported the military
establishment's broad power to deal with its own personnel. The most obvious reason is that
Courts are ill-equipped to determine the impact upon discipline that am particular intrusion
upon military authority might have. Many of the problems of the military society are, in a
sense, alien to the problems with which the Judiciary is trained to deal."
56. In this case, the country is not under the umbrella of Martial Law and fundamental rights
have not been suspended. Article 5 of the Constitution provides that loyalty to the States is
the basic duty of every citizen and that obedience to the Constitution and law is the inviolable
obligation of every citizen wherever he may be and of every other person for the time being
within Pakistan. Article 6 of the Constitution stipulates that any person who abrogates or
attempts or conspires to abrogate, subverts or attempts or conspires to subvert the
Constitution by use of force or show of force or by other unconstitutional means shall be
guilty of high treason; any person aiding or abetting the acts mentioned in clause (1) of
Article 6 shall likewise be guilty of high treason and that Majlis-e-Shoora (Parliament) shall
by law provide for the punishment of persons found guilty of high treason. The Judges of the
superior Courts have also sworn an oath under the Constitution that they shall preserve,
protect and defend the Constitution of the Islamic Republic of Pakistan and shall discharge
their duties and perform their functions honestly to the best of their abilities and H faithfully
in accordance with the Constitution and the law and that in all circumstances, they will do
right to all manner of people, according to law; without fear or favour, affection or ill-will.
57. It would, therefore, be seen that the civil liberties and Military Courts cannot endure
together under the scheme of our Constitution. There is no doubt, as pointed out by Chief
Justice Earl Warren, that so far as the relationship of the military to its own personnel is
concerned, the basic attitude of the Court as to jurisdiction of the Civil Court to review the
decision of Military Courts by invoking the Constitutional jurisdiction has been limited to
examination of cases which are found to be mala fide, coram non judice and without
jurisdiction
DOCTRINE OF NECESSITY:
58. The plea raised on behalf of the learned Attorney-General that the Doctrine of Necessity
is not outdated and can be invoked in the present case for a 'limited purpose' cannot be
countenanced, for, if it is approved of, it may very frequently be resorted to at the incidence
of a situation presently prevailing in the country, by the Executive. In fact, such approval
whereby the Executive is allowed to cross the barriers of Constitutional provisions at its
whim, would turn a democratic rule into a despotic one. Clearly, any deviation from the
Constitution may lead to anarchy. It is true that the take-over by the Chief of the Army Staff
as Martial Law Administrator was validated by this, Court in Begun Nusrat Bhutto's case
PLD 1977 SC 657 wherein it was inter alia observed:-
"On no principles of necessity could power of judicial review vested in the superior Courts
under the 1973 Constitution, be taken away" (p.716 last para. extending to page 717). ,
However, in the case of Asma Jilani (supra), this Court took the view that the acts of usurper
may be condoned and/or validated by the application of the law of necessity. Viewed from
this angle, the impugned Ordinance being ultra vires of the Constitution cannot be validated
even on the touchstone of State necessity. Additionally, in view of the plea raised by the
learned Attorney-General that the establishment of Military .Courts is spelt out. from the
power vesting in the Federal Government under Article 245 is contradictory with the theory
of State necessity, inasmuch as, the concept of law of necessity, would arise only if an act
which would otherwise be illegal becomes legal if it is done bona fide, in view of State
necessity, with a view to preserving the State or the society from destruction by the terrorists.
In the instant case, we have no doubt that the impugned Ordinance was issued bona fide with
a view to suppress the menace of terrorism. Nevertheless, the constitutionality of the
Ordinance is not to be judged on the question of bona fides of the Federal Government
simpliciter but on the touchstone of the Constitutional provisions. Here, impugned legislation
is ultra vires of the Constitution in so far as it takes away the functions of the Courts in
determining the guilt or innocence of an accused. Be that as it may, the prerequisites for the
application of Doctrine of Necessity are not satisfied iii the instant case for upholding the
impugned legislation, even for a limited period. The prerequisites, as laid down in the case of
Attorney-General of Republic v. Mustafa Ibrahim 1964 CLR 195, which was also referred .in
the Begum Nusrat Bhutto's case (supra), are:-
"(a) An imperative and inevitable necessity or exceptional circumstance;
(b) no other remedy to apply;
(c) the measure taken must be proportionate to the necessity; and
(d) it must be of a temporary character limited to the duration of the exceptional

circumstances."
In the instant case, the Courts are functioning and the question of backlog and expeditious
disposal of terrorists' cases can be remedied by taking effective measures, in the light of the
guidelines provided by this Court in the short order as well as the recommendations in the
concluding paragraphs of this note. The, Courts are functioning properly and administering
justice according to the Constitution and the law. These Courts, therefore, cannot be replaced
by ' Military Courts as attempted to be done either partially or wholly by virtue of the
impugned Ordinance. The role of Armed Forces as contemplated under Article 245 is to
defend the country from external aggression or threat of war or to come to the "aid of civil
power" subject to law. The second function of coming in the "aid of civil power" to be
performed by the Armed Forces is subject to a condition precedent of enacting a law. The law
so made must have nexus with the term "to act in aid of civil power". The role of Armed
Forces while acting "in aid of civil power" does not in any way confer the power either
directly or indirectly to interfere with the Courts established under Article 175(1) of the
Constitution and/or to supplant them.
INDEPENDENCE OF JUDICIARY:
59. Let me now discuss the contention raised on behalf of the petitioners as to the
independence of Judiciary, which, according to them, has been set at naught with the
promulgation of the Ordinance in question. The Constitution of the Islamic Republic of
Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2A) declares
that "the independence of the Judiciary shall be fully secured" therein. According to a
consensus of the jurists, the independence of the Judiciary means that every Judge is free to
decide matters before him in accordance with his assessment of the facts and his
understanding of the law without improper influences, inducements or pressures, direct or
indirect, from any quarter or for any reason; and that the Judiciary is independent of the
Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues
of a judicial nature. This Court vide its judgment in the case of Sharaf Afridi (supra), has
separated the Judiciary from the Executive. It would be advantageous to reproduce the
relevant portions at pages 112-113 of the report, which read thus:-
"The Committee appointed by this Court held five meetings on various dates. The first
meeting was held on 9-12-1989 and the last one on 21-12-1991. In these meetings the
problems and difficulties pointed out by the Provincial Governments in carrying out the
Constitutional ,., mandate into- effect as also the measures being taken to fulfil their
obligations in this respect were carefully considered and ways and means of overcoming
these obstacles also discussed. The Chairman of
“The Committee pointed out to the representatives of the Provincial Governments that
notwithstanding the difficulties with which they were confronted separation of the Executive
from the Judiciary was any obligation cast upon them by the Constitution and this obligation
could not be willed away or avoided. It had, Wily Nile to be carried into effect despite
all the difficulties. During the course of the deliberation of the Committee considerable
progress was achieved in securing separation of the Judiciary from the Executive and the
steps being taken for this purpose the Provincial Governments were intimated by the
representatives of the parties to the Committee during the period that the Committee
remained seized of this matter."
"So far as the matter of control of the High Court over the subordinate judiciary is concerned
the Chief Justice has been delegated powers of Authority under the Sindh Civil Servants
(E&D) Rules in respect of Members of the subordinate judiciary and a separate Service
Tribunal has been established for resolution of disputes of judicial officers. Rules for
appointment, promotion and transfer etc. of Judicial Officers have been drafted and are
likely to be approved by the High Court soon.
"So far as the matter of control of the High Court over the subordinate judiciary is concerned
a separate Service Tribunal comprising of Judges has been constituted to hear appeals in
regard to service disputes of the subordinate judiciary. A comprehensive Scheme proposing
various service structures has also been sent to the High Court for its approval."
Reference may also be made on the case of Aziz Ullah Memon (supra), wherein with
reference to independence of Judiciary, this Court held:-
"The Constitution provides for separation of Judiciary from the Executive. It aims at an
independent judiciary which is an important organ of the State within the Constitutional
sphere. The Constitution provides for progressive separation of the Judiciary and had. fixed a
time limit for such separation. It expired in the year 1987 and from then onwards,
irrespective of the fact whether steps have been taken or not judiciary stands separated and
does not and should not seek aid of executive authorities for its separation. Separation of
judiciary is the cornerstone of independence of judiciary and unless judiciary is independent,
the fundamental right of access to justice cannot be guaranteed. One of the modes for
blocking the road of free access to justice is to appoint or hand over the adjudication of rights
and trial of offence in the hands of the Executive Officers. This is merely a semblance of
establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact
such Courts which are manned and run by executive authorities without being under the
control and supervision of the judiciary can hardly meet the demands of Constitution.
Considering from this point of view we find that the impugned Ordinance II of 1968 from the
cognizance of the case till the revision is disposed of, the entire machinery is in the hands of
the executive from Naib-Tehsildar to the official of the Government in the Ministry. Such a
procedure can hardly be conducive to the administration of justice and development of the
area nor will it achieve the desired result of bringing law and order, peace and tranquillity or
economic prosperity and well-being. The Constitution envisages independent judiciary
separate from the executive. Thus, any Tribunal created under the control and
superintendence of the executive for adjudication of civil or criminal cases will be in
complete conflict with Articles 175, 9 and 25."
It was also held in the precedent case that:-

"Our Constitution is based on the principle of trichotomy of power in which Executive,
Legislature and Judiciary have their own functions independent from each other. None of
these three organs are dependent upon the other nor one can claim superiority over the other.
In this context and background to impose executive officers to carry out the judicial work by
ignoring the Courts established in that area by itself creates discrimination and negates the
very concept of justice and violates fundamental rights."
60. Guidance may be sought from the judgment of this Court in the case of Al-Jehad Trust
(supra), wherein at page 403, paragraph 77, it was observed
"In the judgment of this Court further guidelines have been provided for financial
independence of the Judiciary. The cut off date given by this Court was 23rd March, 1994.
Later the review petitions were filed by the Federal and the Provincial Governments for
extension of time, which was extended up to 23rd March, 1996 to enable the respective
Governments to take steps and finalise the separation of the Judiciary from the Executive as
required by the Constitution and the judgment. It may be mentioned that under the judgment
of this Court, Judicial Magistrates have been separated from the Executive Magistrates and
the former are to act under the supervision and control of the High Courts and would have no
connection whatsoever with the Executive. The Magistrates, who would not be given any
judicial powers except under some minor Acts. With this accomplishment, the Judiciary
stands separated from the Executive and even in financial matters the Judiciary has been
given independent control over the funds allocated by the Government, which can be re-
appropriated from one head to another by the Chief Justices. "
Reference may be made to the case of Mehram Ali (supra), wherein at page 1477, paragraph
11, it was observed thud -
"(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from
the Executive (which is founded on the Islamic Judicial System) in order to ensure
independence of Judiciary and, therefore, any Court or Tribunal which is not subject to
judicial review and administrative control of the High Court and/or the Supreme Court does
not fit in within the judicial framework of the Constitution. "
IReliance. may also be made to A1-Jehad Trust case (supra), wherein it was observed at page
403, paragraph 77, as under:--
"In the judgment of this Court further guidelines have been provided for financial
independence of the Judiciary. The cut off date given by this Court was 23rd March, 1994.
Later the review petitions were fledby the Federal and the Provincial Governments for
extension of time, which was extended up to 23rd March, 1996 to enable the respective
Governments to take steps and finalise the separation of the Judiciary from the Executive as
required by the Constitution and the judgment: It may be mentioned that' under the judgment
of this Court, Judicial Magistrates have been separated from the Executive Magistrates and
the former are to act under the supervision and control of the High Courts and would have no
connection whatsoever with the Executive. The Magistrates, who would not be given any
judicial powers except under some minor Acts. With this accomplishment, the Judiciary
stands separated from the Executive and even in financial matters the Judiciary has been
given independent control over the funds allocated by the Government, which can be
reappropriated from one head to another by. the Chief Justices. "
In the case of Mehram Ali (supra) Ajmal Mian, C.J. at page 1486 (O), observed as under:-
"We may point out that this Court is not oblivious of the factum that the law and order
situation has been considerably deteriorated and new types of terrorism have emerged due to
tremendous progress made in the field of technology. This Court in more than one cases has
held that the approach of the Court while considering criminal matters should be dynamic and
it should take into consideration the surrounding situation obtaining in the country and should
not lightly set aside a conviction on technical grounds if the Court's conscience is satisfied
that factually the convict was guilty of the offence. In this regard, reference may be made to
the following observations of one of us (Ajmal Mian, C.J.) in the following two cases:--
"(i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD
1995 SC 1);
"2. Before touching upon the merits of the case, I may observe that there cannot be two
opinions that the duty of the Court is to administer the laws as are operative in the country
and if such taws fail to achieve the desired result, then it is the duty of the Legislature to
make necessary amendments therein. However, at the same time, it is also a well-settled
proposition of law that while applying a particular law, the Court should take into
consideration the object for which it has been enacted. The interpretation of the law should be
placed in a manner which may advance the object and suppress the mischief for which the
law in question might have been enacted and not to construe in a manner which may defeat
the object of the law . "
"3. It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom,
commission of dacoities and other offences, the people are feeling insecured. The learned
trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view,
found favour with it. The approach of the Court in matters like the case in hand should be
dynamic and if the Court is satisfied that the offence has been committed in the manner in
which it has been alleged by the prosecution, the technicalities should be overlooked without
causing any miscarriage of justice."
"(ii) Zeeshan Kazmi v. The State (PLD 1997 SC 267):
"8. We may observe that it has now become common that the accused involved in heinous
offences, if succeed, in obtaining bail, jump the. bail bonds. To check the above tendency and
to provide deterrence special provisions have been enacted and/or are being enacted in the
special statutes prescribing the minimum amount of bail bond for example, under section 5(7)
of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it has been provided
that the bail amount would not be less than twice of the amount involved in the commission
of the offence. Keeping in view the above bleak scenario which has emerged, with the
passage of time on account of the lack of respect-of the rule of law, and because of the
unprecedented continuous steep inflationary tendency resulting in the loss of money value,
the Courts should not show any undue leniency while forfeiting bail bond amount. Their
approach should be dynamic and progressive oriented with the desire to discourage the
accused persons to jump bail bonds. There is no legal requirement that full bail bond amount
should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire
surety amount becomes liable to be forfeited in the absence of any mitigating circumstances."
"In the case of Muhammad Mansha v. The State (PLD 1996 SC 229), wherein at page 233,
paragraph 2 (c), it was observed as under:-
"The subordinate Courts or the inferior Courts as they are sometimes called are an integral
part of the judicial system of our country. The description 'inferior Courts', or 'inferior
Tribunal' is a categorising and not a derogatory description. Such Courts or Tribunals 'are not
inferior in the doing of justice; nor in the Judges who man them, nor in the Advocates who
plead in them'. (Lord Denning in Attorney-General v. B.B.C. (1981) A.C. 303, 313). The rule
of law depends upon public confidence and public acceptance of the judicial system;
therefore, anything which tends to undermine that confidence in the judicial system must be
strongly, discountenanced ... ... ..."
61. Some cases from American jurisdiction may also be referred to wherein validity of the
Military trials had been dilated upon, a bare reading of which would urge us to dray a safe
inference as to the establishment of Military Courts that they ought never to exist where the
Civil Courts are open and performing their functions properly nor should they be obstructed
in the proper exercise of their jurisdiction by replacement thereof. In Ex parte Milligan (71
U.S.2), it has been observed as follows:
'No graver question was ever considered by this Court, nor one which more nearly concerns
the rights of the whole people; for it is the birthright of every American citizen when charged
with crime, to be tried and punished according to law, The power of punishment is, alone
through the means which the laws have provided for that purpose, and if they are ineffectual,
there is an immunity from punishment, no matter how great an offender the individual may
be, or how much his crimes may have shocked the sense of justice of the country, or
endangered its safety. By the protection of the law human rights are secured; withdraw that
protection, and they are at the mercy of wicked. rulers, or the clamor of an excited people. if
there was law -to justify this military trial, it is not our province to interfere; if there was not,
it is our duty to declare the nullity of the whole proceedings. The decision of this question
does not depend on argument or judicial precedents, numerous and highly illustrative as they
are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve
those in civil life from military trials. The Founders of our Government were familiar with
the history of that struggle; and secured in a written Constitution every right which the people
had wrested from power during a contest of ages. By that Constitution and the laws
authorized by it this question must be determined. The provisions of that instrument on the
administration of criminal justice are too plain and direct, to leave room for misconstruction
or doubt of their true meaning. Those applicable to this case are found in that clause of the
original Constitution which says, 'That the trial of all crimes, except in case of impeachment,
shall be by jury;' and in all fourth, fifth and sixth Articles of the amendments. The fourth
proclaims the right to be secure in person and effects against unreasonable search and seizure;
and directs that a judicial warrant shall not issue 'without proof of probable cause supported
by oath or affirmation'. The fifth declares 'that no person shall be held to answer for a capital
or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in actual service in time of war or public
danger, nor be deprived of life, liberty, or property, without due process of law.' And the sixth
guarantees the right of trial by jury, in such manner and with such regulations that with.
upright Judges, impartial Juries, and an able Bar, the innocent will be saved and the guilty
punished. It is in these words: 'In all criminal prosecutions the accused shall enjoy the right to
a speedy and public trial by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses in his favour, and to have
the assistance of counsel for his defence.' These securities for personal liberty thus embodied,
were such as wisdom and experience had demonstrated to be necessary for the protection of
those accused of crime. And so strong was the sense of the country of their importance, and
so jealous were the people that these rights, highly prized, might be denied them by
implication, that when the original Constitution was proposed for adoption it encountered
severe opposition; and, but for the belief that it would be so amended as to embrace them, it
would never have been ratified. "
"Time has proven the discernment of our ancestors; for even these provisions, expressed in
such plain English words, that it would seem the ingenuity of man could not evade them, are
now, after the lapse of more than seventy years, sought to be avoided. Those great and good
men foresaw that troublous times would arise, when Rulers and people would become restive
under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and
proper; and that the principles of Constitutional liberty would be in peril, unless established
by irrepealable law. The history of the world had taught them that what was done in the past
might be attempted in the future. The Constitution of the United States is a law for Rulers and
people, equally in war and in peace, and covers with the shield of its protection all classes of
men, at all times, and under all circumstances. No doctrine. involving more pernicious
consequences, was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of Government. Such a doctrine leads directly
to anarchy or despotism. but the theory of necessity on which it is based is false; for the
Government, within the Constitution, has all the powers granted to it, which are necessary to
preserve its existence; as has been happily proved by the result of the great effort to throw off
its just authority."
It was further observed as under:-
"The discipline necessary to the efficiency of the army and navy, required other anti swifter
modes of trial than are furnished by the common law Courts: and, in pursuance of the power
conferred by the Constitution, Congress has declared the kinds of trial, and the manner in
which they shall be conducted, for offences committed while the party is in the military or
naval service. Everyone connected with these branches of the public service is amenable to
the jurisdiction which Congress has created for their Government, and, while thus serving,
surrenders his right to he tried by the Civil Courts. All other persons, citizens of States where
the Courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by
jury. This privilege is a vital. principle, underlying the whole administration of criminal
justice; it is not held by sufferance, and cannot be frittered away on any plea of State or
political necessity. When peace prevails, and the authority of the Government is undisputed,
P * 124 there is no difficulty of preserving the safeguards of liberty; for the ordinary modes
of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil
commotion -- if the passions of men are aroused and the restraints of law weakened, if not
disregarded -- these safeguards need, and should receive, the watchful care of those entrusted
with the guardianship of the Constitution and laws. In no other way can we transmit to
posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution."
"It follows,, from what has been said on this subject, that there are occasions when martial
rule can be properly applied. If, in foreign invasion or civil war, the Courts are actually
/closed, and it is impossible to administer criminal justice according to law, then, on the
theatre of active military operations, where war really prevails, there is a necessity to furnish
a substitute for the civil authority thus overthrown, to preserve the safety of the army and
society; and as no power is left but the military, it is allowed to govern by martial rule until
the laws can have their free course. As necessity creates the rule, so it limits its duration; for,
if this Government is continued after the Courts are reinstated, it is a gross usurpation of
power. Martial rule can never exist where the Courts are open, and in the proper and
unobstructed exercise of their jurisdiction."
In the case of O'Callahan v Parker 89 SCt.1683, 395 US 258, it was, inter alia, observed that
history teaches that expansion of military discipline beyond its proper domain carries with it a
threat to liberty. The relevant portion of the reports reads thus:-
"That a system of specialized Military Courts, proceeding by practices different from those
obtaining in the regular Courts and in general less favourable to defendants, is necessary to an
effective national defence establishment, few would deny. But the justification for such a
system rests on the special needs of the military, and history teaches that expansion of
military discipline beyond its proper domain carries with it a threat to liberty. This Court,
mindful of the genuine need for special Military Courts, has recognized their propriety in
their appropriate sphere, e.g., Burns v. Wilson, 346 US 137, 73 S.Ct.1045, 97 L.Ed.1508, but
in examining the reach of their jurisdiction, it has recognized that 'There are dangers lurking
in military trials which were sought to be avoided by the Bill of Rights and Article III of our
Constitution. Free countries of the world have tried to restrict Military Tribunal to the
narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in
active service." ,
"As recently stated: 'None of the travesties of justice perpetrated under the UCMJ is really
very surprising, for military law has always been and continues to be primarily an instrument
of discipline, not justice.' Glasser, Justice and Captain Levy, 12 , Columbia Forum 46, 49
(1969)' . "
In Reid v: Covert (77 S.Ct.1222, 354 US 1), it was noticed that the 'trial of soldiers by
Courts-Martial and the interference of the Military with the Civil Courts had aroused great
anxiety and antagonism not only in Massachusetts but throughout the colonies. It was
observed:-
" ... ... ... ... ...It was against this general background that two of the greatest English jurists,
Lord Chief Justice Hale and Sir William Blackstone--men who exerted considerable
influence on the Founders-expressed sharp hostility to any expansion of the jurisdiction of
Military Courts. For instance, Blackstone went so far as to assert: "For martial law, which is
built upon no settled principles, but is entirely arbitrary in its decision, is, as Sir Matthew
Hale observes, in truth and reality no law, but something indulged rather than allowed as a
law. The necessity of order and discipline in an army is the only thing which .can give it
countenance; and therefore it ought not to be permitted in time of peace, when the King's
Courts are open for all persons to receive justice according to the laws of the land."
' ... ... ... ...The trial of soldiers by Courts-Martial and the interference of the Military with the
Civil Courts aroused great anxiety and antagonism not only in Massachusetts but throughout
the colonies. For example, Samuel Adam in 1768 wrote:
' .. . . . . . .. (I)s it not enough for us to have seen soldiers and mariners forejudged of life, and.
executed within the body of the country' by martial law? Are citizens ... ...to be called upon,
threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law
military, in breach of the fundamental rights of subjects, and contrary to the law and franchise
of the land? ... ...Will the spirits of people as yet unsubdued by tyranny, unawed by the
menaces of arbitrary power, submit to be governed by military force? No! Let us rouse our
attention to the common law,--which is our birthright, our great security against all kinds of
insult and oppression .. . ... "
"In, light of this history, it .seems clear that the Founders had no intention to permit the trial
of civilians in Military Courts, where they would be denied jury trials and other
Constitutional protections, merely by giving Congress the power to make rules which were
'necessary and proper' for the regulation of the 'land and Naval Forces'; Such a latitudinarian
interpretation of these clauses would be at war with the well-established purpose of the
Founders to keep the military strictly within its proper sphere, subordinate to civil authority.
The Constitution does not say that Congress can regulate 'the land and Naval Forces and all
other persons whose regulation might have some relationship to maintenance of the land and
Naval Forces.' There is no indication that the Founders contemplated setting up a rival system
of Military Courts to compete with civilian Courts for jurisdiction over civilians who might
have some contact or relationship with the armed forces. Courts-martial were not to have
concurrent jurisdiction with Courts of law over non-military America."
"On several occasions this Court has been faced with an attempted expansion of the
jurisdiction of Military Courts ... ..., one of the great landmarks in this Court's history, held
that military authorities were without power to try civilians not in the military or naval
service by declaring martial law in an area where the civil administration was not deposed
and the Courts were not closed. In a stirring passage the Court proclaimed:
'Another guarantee of freedom was broken when Milligan was denied a trial by jury. The
great minds of the country have differed on the correct interpretation to be given to various
provisions of the Federal Constitution; and judicial decision has been often invoked to settle
their true meaning; but until recently no one ever doubted that the right of trial by jury was
fortified in the organic law against the power of attack. It is now assailed; but if ideas can be
expressed in words, and language has any meaning, this right--one of the most valuable in a
free country---is preserved to everyone accused of crime who is not attached to the Army, or
navy, or, militia in actual service'."
"In Duncan v. Kahanamoku, 327 US 304, 66 S.Ct.606, 90 L.eD.688, the Court reasserted the
principles enunciated in Ex pane Milligan and reaffirmed the tradition of military
subordination to civil authorities and institutions. It refused to sanction the military trial of
civilians in Hawaii during wartime despite Government claims that the needs of defence
made martial law imperative."
"dust last term, this Court held in United States ex rel. Toth v. Quarles, 350 U.S. -11, 76 S.Ct.
1, 100 Led. 8, that Military Courts could not constitutionally try a discharged serviceman for
an offence which he had allegedly committed while in the Armed Forces. It was decided (1)
that since Toth was a civilian he could not be tried by Military Court martial ... ...and (2) that
since he was charged with murder, a 'crime' in the Constitutional sense, he was entitled to
indictment by a grand jury, jury trial, and the other protections contained in Art.III, S.2 and
the Fifth, Sixth and Eighth Amendments. The Court pointed out that trial by civilian Courts
was the rule for persons who were not members of the armed forces."
Guidance may be sought from the following extracts from the case of Ex parte Milligan 71
US 2), at pages 78, 80, 81, 82 and 83, respectively:-
"Every trial involves the exercise of judicial power; and from what source did not military
commission that tried him derive their authority? Certainly no part of judicial power of the
country was conferred on them; because the Constitution expressly vests it 'in one Supreme
Court and such inferior Courts as the Congress may from time to time ordain and establish,'
and it is not pretended that the commission was a Court ordained and established by
Congress. They cannot justify on the mandate of the President; because he is controlled by
law, and has his appropriate sphere of duty, which is to execute, not to make, the laws: and
there is 'no unwritten criminal code to which resort can be had as a source of jurisdiction."
"This nation, as experience has proved, cannot always remain at peace, and has no right to
expect that it will always have wise and humane rulers, sincerely attached to the principles of
the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of
law, may fill the place once occupied by Washington and Lincoln; and if this right is
conceded, and the calamities of war again befall us, the dangers to human liberty are frightful
to contemplate. If our fathers had failed to provide for just such a contingency, they would
have been false to the trust reposed in them. They knew--the history of the world told them--
the nation they were founding, be its existence short or long, would be involved in war; how
often or how long continued, human foresight could not tell; and that unlimited power,
wherever lodged at such a time, was especially hazardous to freemen. For this. and other
equally weighty reasons, they secured the inheritance they had fought to maintain, by
incorporating in a written Constitution the safeguard. which time had proved were essential to
its preservation. Not one of these safeguards can the President, or Congress. or the Judiciary
disturb, except the one concerning the writ of habeas corpus. "
... . - ...The illustrious men who framed that instrument were guarding the foundations of civil
liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of
history informed them that a trial by an established Court, assisted by an impartial jury, was
the only sure way of protecting the citizen against oppression and wrong. Knowing this, they
limited the suspension to one great right, and left the rest to remain forever inviolable. But, it
is insisted that the safety of the country in time of war demands that this broad claim for
martial law shall be sustained. If this were true, it could be well said that a country, preserved
at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.
Happily, it is not so."
"It will be borne in mind that this is not a question of the power to, proclaim Martial Law,
when war exists in a community and the Courts and civil authorities are overthrown. Nor is it
a question what rule a military commander, at the head of his Army, can impose on States in
rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is
much more extensive. The necessities of the service, during the late Rebellion, required that
the loyal States should be placed within the limits of certain military districts and
commanders appointed in them; and, it is urged, that this, in a military sense, constituted
them the theatre of military operations; and, as in this case, Indiana had been and was again
threatened with invasion by the enemy, the occasion was furnished to establish martial law.
The conclusion does not follow from the premises. If armies were collected in Indiana, they
were to be employed in another locality, where the laws were obstructed and the national
authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at
an end, and with it all pretext for martial law. Martial law cannot arise from a threatened
invasion. The necessity must be actual and present; the invasion real, such as effectually ~
closes the Courts and deposes the civil administration. "
"It is difficult to see how the safety for the country required Martial Law in Indiana. If any of
her citizens were plotting treason, the power of arrest could secure them, until the
Government was prepared for their trial, when the Courts were open and ready to try them. It
was as easy to protect witnesses before a civil as a Military Tribunal; and as there could be no
wish to convict, except on sufficient legal evidence, surely an ordained and established Court
was better able to Judge of this than a Military Tribunal composed of gentlemen not trained
to the profession of the law."
"It is proper to say, although Milligan's trial and conviction by a military commission was
illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an
established Court and impartial jury, he deserved severe punishment. Open resistance to the
measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of
Government, and have not the excuse even of prejudice of section to plead in their favour, is
wicked; but that resistance becomes an enormous crime when it assumes the form of a secret
political organization, armed to oppose country into peaceful communities, there to light the
torch of civil war, and thus overthrow the power of the United States. Conspiracies like these,
at such a juncture, are extremely perilous; and those concerned in them are dangerous
enemies to their country, and should receive the heaviest penalties of the law, as an example
to deter others from similar criminal conduct. It is said the, severity of the laws caused them;
but Congress was obliged to enact severe laws to meet the crises; and as our highest civil duty
is to serve our country when in danger, the late war has proved that rigorous laws, when
necessary, will be cheerfully obeyed by a patriotic people, struggling to preserve the rich
blessings of a free Government. "
In The American Constitutional Law by Louis Fisher; wherein Chapter 4 namely "Judicial
Organization", it has been observed at pages 145, 147, 148 and 149 respectively, as under:-
"Congress has established various organizations to help the Judiciary. In 1922 it created the
Judicial Conference to coordinate the legislative requests and administrative actions of the
Federal Courts. Two years after Roosevelt's abortive Court-packing scheme in 1937,
Congress created judicial councils in each circuit to improve the efficiency of Court
administration. It had been the responsibility of the Justice Department to handle the
administrative needs of the Courts, creating an obvious separation of powers problem. In
1939, Congress established the Administrative office of the United States Courts to take care
of the managerial, research, statistical and budgetary needs of the national judiciary. In 1967,
Congress created a Federal Judicial Centre to study methods of improving judicial
administration. "
"A third class of specialized Courts derives from the power of Congress under Article I,
section 8, to 'make Rules for the Government and Regulation of the land and Naval Forces'.
Congress has provided that criminal behavior in the military shall be tried by Court martial
proceedings, not by Courts established under Article III. The United States Court of Military
Appeals, composed of three Judges with fifteen-year terms, is an Article I Court. Military
Courts need not satisfy all of the specific procedural protections offered by Article III Courts.
"In 1969 the Supreme Court attempted to subject certain military questions to the jurisdiction
of civilian Courts. It held that a crime must be "service connected" to be under military
jurisdiction ... ... ...The service connected doctrine became so confusing that the Court
abandoned it in 1987. Jurisdiction of a Court-Martial now depends solely on the accused's
status as a member of the armed forces. The rights of servicemen now depend on action by
Congress, not the Courts. "
"The demarcation between Article I and Article III Courts remain a source of disagreement
among Justices of the Supreme Court. In 1982 the Court struck down as unconstitutional a
Court system created by Congress in 1978 to handle thousands of bankruptcy cases. The 1978
legislation established a bankruptcy Court in each federal district. The Judges of those Courts
were appointed by the President (subject to Senate advice and consent) for fourteen-year
terms and could be removed by the judicial council of the circuit. Their salaries could be
decreased by Congress. Technically, the bankruptcy Courts, were not considered legislative
Courts but "adjuncts" to the district Courts."
"In its 1982 decision, the Supreme Court denied that Congress could establish specialized
Courts to carry out every one of its Article I powers. Although Congress has Constitutional
authority under Article I, section 8, to establish 'uniform Laws .on the subject of Bankruptcies
throughout the United States', this authority did not permit Congress to rely on a non-Article
III Court. Such reassigning, said the Court, 'threatens to supplant completely our system of
adjudication in independent Article III Tribunals and replace it with a system of 'specialized'
legislative Courts'. The Court concluded that the Bankruptcy Act of 1978 had removed
essential attributes of judicial power from the Article III district Court and vested them in a
non Article III body ... . . . "
"In the case of Northern Pipeline-Co. v. Marathon Pipe Line Co.(458 U.S.50(1982), "The
Bankruptcy Reform Act of 1978 established a federal bankruptcy Court in each district as an
adjunct to district Courts. Bankruptey Judges were appointed for fourteen-year terms, subject
to removal by the Judicial Councils for specified causes; their salaries could be reduced by
Congress. The Act was challenged as unconstitutional on the ground that it conferred Article
III judicial powers on Judges who lacked the protections of life tenure and irreducible
salaries. The Court's opinion did not attract a majority. Brennan wrote for a four justice
plurality. Rehnquist and O'Connor concurred with Brennan's judgment but on a narrower
ground. White, joined by Burger and Powell, dissented. Footnotes omitted."
In the case of O'Callahan v. Parker (89 S.Ct. 1683, 395 US 258), wherein at page 3 it was
observed thus:-
"Does a Court-Martial, held under the Articles of War, Tit. 10, U.S.C.s 801 et seq., have
jurisdiction to try a member of the Armed Forces who is charged with commission of a crime
congnizable in a civilian Court and having no military significance, alleged to have been
committed off-post and while on leave, thus depriving him of his constitutional rights to
indictment by a grand jury and trial, by a petit jury in a civilian Court………,"
"We find nothing in the history or Constitutional treatment of Military Tribunals which
entitles them to rank along with Article III Courts as adjudicators of the guilt or innocence of
people charged with offences for which they can be deprived of their life, liberty or property.
Unlike Courts, it is the primary business of Armies and Navies to fight or be n ready to fight
wars should the occasion arise. But trial. of soldiers to maintain discipline is merely
incidental to an Army's primary fighting function. To the extent that those responsible for
performance of this primary function are diverted from it by the necessity of trying cases, the
basic fighting purpose of armies is not served. And conceding to military personnel that high
degree of honesty and sense of justice which early all of them undoubtedly have, it still
remains true that Military Tribunals have not been and probably never can be constituted in
such way that they can have the same kind of qualifications that the Constitution has deemed
essential to fair trials of civilians in Federal Courts. For instance, the Constitution does not
provide life tenure for those performing judicial functions in military trials. They are
appointed by Military Commanders and may be removed at will. Nor does the Constitution
protect their salaries as it does judicial salaries. Strides have been made toward making
Courts-martial less subject to the will of the executive department which appoints, supervises
and ultimately controls them. But from the very nature of things, Courts have more
independence in passing on the life and liberty of ,people than do Military Tribunals."
At page 4 of the report, it was observed:-
....A Court-martial is not yet an independent instrument of justice but remains to a significant
degree a specialized part of the overall mechanism by which military discipline is preserved.
".
....This Court, mindful of the genuine need for special Military Courts, has recognized their
propriety in their appropriate sphere, ... ... ...but in examining the reach of their jurisdiction, it
has recognized that 'There are dangers lurking in military trials which were sought to be
avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world
have tried to restrict Military Tribunals to the narrowest jurisdiction deemed absolutely
essential to maintaining discipline among troops in active service."
In 'People, , Law 'and Justice', A Case Book of Public Interest Litigation, Volume 1, by
Sangeeta Ahuja, wherein at page 158, the case of Gauhati Peoples's Union for Human Rights
represented by Ramesh Kumar Jain and others v. Union of India and others in C.R.s
Nos.2314, 2238, 2415 of 1990 and 11 of 1991, has been briefly narrated, as under:-
"Petitions were filed under Article 226 of the Constitution challenging the promulgation of
President's rule in Assam for the fourth time on 27-11-1990. Sections 4 and 5 of the Armed
Forces (Special Powers) Act, 1958 and section 3 of the Assam Disturbed Areas Act, 1955,
were described as violative of Article 21 of the Constitution. The petition also referred to the
preamble of the Central Reserve Police Force Act, 1949. One petition was filed by the
People's Union for Human Rights (P.U.H.R.) represented by its members, and others by
Nibaran Bora, a local journalist and by the editor of Boodhbar. an Assamese weekly. The
latter petition challenged the vires of the 1958 Act, and described certain provisions of the
enactment as violative of fundamental rights.
In an order D/-20-3-1991 by Chief Justice A. Raghuvir and Justice S.N Phukan (reported AIR
1992 Gau 23):
"Referring to the Armed Forces (Special Powers) Act, 1958, the Court stated at 36:
" actually there are no rules to guide the actions of the authorities under the Act. The ordinary
protection guaranteed under the laws to life and limb are not regulated under the 1958 Act.
Therefore, we hold the quality of life in the area where the Act is enforced by notification the
citizen's life stands radically changed to his detriment in view, of the actual practices
followed."
"It was held that the notification of Central rule was only to apply to the specified areas listed.
by the Court and that the notification enforcing both Acts was to be reviewed every two
months. The Court directed that any person, arrested by the armed forces, be handed over to
the nearest police station with the least possible delay and be produced before the nearest
Magistrate within twenty-four hours from the time of arrest. It was also held that only those
who have committed cognizable offences or against whom reasonable suspicion exists could
be arrested. and that the Central Reserve Police Force could not exercise any extraordinary
powers under the notification.
"An appeal has been filed under Article 136 of the Constitution in the Supreme Court by the
petitioners."
Also refer Hood Phillips' "Constitutional and Administrative Law", 5th Edition, page 305,
wherein it has been observed as follows:-
"The objects of military law are disciplinary and administrative- It provides in the first place
for the maintenance of discipline and good order among the troops, and secondly, for
administrative matters such as terms of service, enlistment, discharge and billeting ....Courts
martial have jurisdiction to try and to punish persons subject to military law for two classes of
offences; first, military offences created by Part II of the Army Act, as to which their
jurisdiction is exclusive and, secondly, under certain conditions, civil offences (i.e. criminal
offences under non-military law), as to which their jurisdiction in this country is concurrent
with the civil (i.e., non-military) Courts."
In the same report, Muhammad Gul, J. observed thus:
"The principle, that law once competently made shall be given full ?:`t effect regardless of
any consideration of equity, morality or wisdom was recently accepted by this Court in
Messrs Mamukanjan Cotton Factory v. The Punjab Province and others (PLD 1975 SC 50).
The facts of that case are rather remarkable. In that case certain fee purporting to be charged
under W.P. Cotton (Control) Act,. 1959 was declared by the High Court to have been
illegally recovered because of certain defect in law. Twice writs were issued directing a
refund of the illegal exactions. Ultimately, the law was amended retrospectively so as to
nullify the effect of writs issued by the High Court and thus to enable the Government to
retain the exactions which ab initio were illegal. The" validating legislation could scarcely be
supported on any equitable or' moral ground . . . . . . . . "
Guidance may also be sought from the case of Muhammad Nawaz v. The Crown (PLD 1951
FC 53), wherein it has been observed:-
"Even if it be conceded that Courts-Martial are Courts, and that the proceedings before
Courts-Martial relate to criminal matters, it cannot be held that a right of appeal to His
Majesty in Council attaches to the decisions of a Court-Martial, unless it is shown that such a
right..,, attached to these decisions prior to 1833 by virtue of some law, statute, or custom, so
as to attract the provisions of section 3 of the Judicial; ' Committee Act of 1833. If it be held
that no right of appeal to His' :' Majesty-in-Council existed in respect of the decisions of
Courts martial, it is obvious that the Army Act did not bring such a right into existence. The
Army Act intended the findings of a Court-Martial as and when confirmed by the proper
confirming officer to be final, subject only to the power of revisions for which the Act
provides. In the words of Lord Thankerton, "There is no room for an appeal to His Majesty-
in-Council consistently with the subject-matter and scheme of the Act."
"Courts-Martial administering statutory military laws are Courts of special jurisdiction, not
amenable to supervision or control by any judicial body or Court of justice, administering the
general law, except where they may be found to have acted without jurisdiction or in excess
of it. Courts-Martial while acting within their proper scope and sphere are supreme and their
decisions, subject to revision by the confirming authority, are absolute and final. "
"The term "Court" in the Act was intended to include Courts-Martial a; distinguished from
Martial Law Courts. The latter are created by thf will of the Commander appointed to govern
a territory or an Army, either in time of war or when due to turmoil or disturbed condition
prevailing at the time, Civil Government comes to an end and extraordinary steps are taken to
maintain public order. The 'Martial Law Courts' are essentially no Courts at all. They exist as
such neither by statute nor by any law, are created by the will of the Commander; their
proceedings are executive in character and are defensible by necessity alone. The Courts-
Martial (sitting under what is called the Military Act in England, or under similar Acts known
as the Indian Army Act, 1911, the Indian Air Force Act, 1932 and other cognate measures)
are, on the other hand, brought into existence by means of statutes which authorise them to
decide cases placed before them and to pass orders or sentences in accordance with law. "
"The term 'Court', as used in the Act, covers the Courts-Martial appointed under the Army
Act, English or Indian."
"Having regard to the object for which they are created, the functions which they perform and
the sentences which they can pass, I have no hesitation in holding that they are Criminal
Courts, and the proceedings before them are those of a criminal character."
In the same report, Abdur Rehman, J. observed at as under:-
"As the jurisdiction exercised by the Judicial Committee of the Privy Council, ever since
sections 1 and 3 of the Act have been brought on the statute book, is purely statutory, I first
propose to examine the point whether the Courts-Martial (as distinguished from Martial Law
Courts) fall within the term "Court" as used in the Act.
In the absence of a definition of that term in the Act in the Interpretation Act (52 & 53 Vict.
c. 63) and having regard to the object with which this enactment (3 & 4 Will. 4 c.41) was
passed, one must give to it as wide a meaning as can be legitimately done. Amongst other
things to which the term 'Court' applies. it has been (in accordance with the meaning of that
term given in New English Dictionary, Vo1.II, pp. 1090, 1091) stated in the footnote to para.
1 of the 9th Volume of Halsbury's Laws of England (1st Edition) to consist of 'An assembly
of Judges or other persons legally appointed and acting as a Tribunal to hear and determine
any cause, civil ecclesiastical, military, or naval.' Applying this ordinary dictionary meaning
to the term (and not to speak of Explanation 1 to section 193 of the Pakistan Penal Code, or
of section 195 of the Indian Evidence Act, which cannot be called in aid to construe a
Parliamentary statute); and keeping in mind the other terms 'Judge or Judicial Officer'
referred to in section 3 of the Act, which must, in my opinion, be taken to have been
employed ejusdem generis, and having regard to the duties entrusted to and discharged by
Courts Martial General, District or summary as soon as they were or are brought into being in
consequence of section 96 of the Government of India Act, 1813 (53 Geo., c. 155) or as a
result of section 73 of the Government of India Act, 1833 (3 & 4 Will. 4, c. 85), which
remained in force under section, 22 of the Indian Councils Act, 1861 (24 & 25 Vict. C. 67),
and even under the Government of India Act, 1915 (5 & 6 Geo. 5, c. 61), I am of the view
that the term "Court" in the Act was intended to include Courts-Martial as distinguished from
Martial Law Courts. The latter are created by the will of the commander appointed to govern
a territory or an Army, either in time of war or when due to turmoil or disturbed conditions
prevailing at the time. Civil Government comes to an end and extraordinary steps are taken to
maintain public order. The 'Martial Law Courts' are essentially no Courts at all, and as
observed by the Earl of Halsbury an "attempt to make these proceedings of the so-called
'Courts-Martial' administering summary justice under the supervision of a Military
Commander, analogous to the regular proceedings of Courts of Justice is quite illusory. 'See
Tiloko v. Attorney-General of Natal 1907 A C 93). They exist as such neither by statute nor
by any law, are created by the will. of the commander; their proceedings are executive in
character and are defensible by necessity alone. The Courts-Martial (sitting under what is
called the Military Act in England, or under similar Acts known as the Indian Army Act,
1911, the Indian Air Force Act, 1932 and other cognate measures) are, on the other hand,
brought into existence by means of statutes which authorise them to decide cases placed
before them and to pass orders of sentences in accordance with law. "
“... ... ...I think if may be fairly inferred that Courts-Martial administering statutory military
laws are Courts of special Jurisdiction, not amenable to supervision or control by any judicial
body or Court of Justice, administering the general law, except where they may be found to
have acted without jurisdiction or in excess of it- Courts-Martial while acting within their
proper scope and sphere are supreme and their decisions, subject to revision by the
confirming authority are absolute and final. In this connection, it maybe pertinent to observe
that while military laws are statutory laws by which discipline is maintained in the Armed
Forces in normal times, martial laws (which in a strictly legal sense are no laws at all) are
merely exceptional methods adopted by the military for preserving order and safeguarding
the interests and integrity of the State during war or insurrection. As in the present case the
petitioners have failed to establish their claim that after a conviction and sentence by Court-
Martial there is yet a remedy open by way of appeal to His Majesty in Council by virtue of
the prerogative of the Crown, I fully agree with the view expressed by My Lords, that these
petitions for special leave to appeal, submitted to this Court, on the strength of the provisions
of section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950 do not lie and must,
therefore, be dismissed." ;
FUNDAMENTAL RIGHTS
62. In the case of Khalid Malik v. Federation of Pakistan PLD 1991 SC 1 the infringement of
fundamental rights at the behest of the Government and the role of the Judiciary to safeguard
the people from such encroachment upon their rights by the Executive, was examined. It was
observed that the Judiciary secures the rights of the people and is a safety value against
excessive and arbitrary actions of the Executive and infringement of law and Fundamental
Rights. One organ cannot overreach the other, nor one can ignore or minimise the importance
of the other. It would be advantageous to reproduce the following extracts from the above
judgment wherein at page 69 of the report. Saleem Akhtar, J. observed as follows:-
"………..The Constitution is a living organism and has to be interpreted to keep alive the
traditions of the past blended in the happening of the present and keeping an eye on the
future. Constitution is the symbol of statehood keeping united people of different races,
diverse cultural, social, economic and historical traditions. It provides a method of legitimacy
to the Government. It is the power behind the organs and institutions created by it.
Constitution must be interpreted keeping in view the entire canvass of national fabric be it
political, social, economic or religious. In Benazir Bhutto 's case the concept of the
Constitution has fully been explained by the Supreme Court in a classical manner."
"National Assembly is one of the main organs of the Constitution. It is a part of the
Parliament and mainly responsible for legislative work The Executive, Legislature and the
Judiciary are the three main organ in any democratic Constitution and Law. In this trichotomy
of power Judiciary has an important but difficult role to pay. It secures the rights of the
people and is a safety valve against excessive and arbitrary actions of the Executive and
infringement of law and Fundamental rights. One organ cannot overreach the other, nor one
can ignore or minimise the importance of the other. All of them have to maintain balance. and
respect each other."
At page 89 of the report, it was observed:-

"The anti-corruption and penal laws have remained ineffective due to their inherent defect in
adequately meeting the fast multitudinous growth of corruption and bribery. Corruption in
high places has remained unearthed leading to a popular belief that immunity is attached to
them. To combat corruption the whole process and have to he made effective and
institutionalized. "
“The spread of corruption and bribe culture is so wide that even rumors and concocted stories
assume the proportion of general belief. Corruption cripples the Government and
administration. It paralyses the course of justice and throws honest persons of integrity in
oblivion as redundant and misfit. No Government with record of corruption, nepotism and
favouritism can claim to be run according to Constitution and Law. Where corruption is of
enormous nature affecting major spheres of life and it is a motivating force in taking major
decisions and public dealings by will surely have nexus with the order of Dissolution."
"The order has charged that the Federal Government has failed in its duty under Article
148(3) of the Constitution to protect the Province of Sindh against internal disturbances and
to ensure that the Government of that Province is carried on in accordance with the provisions
of the Constitution despite the heavy loss of life and property the rule of terror in urban and
rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence and widely
condemned failure of the Provincial Government and its law enforcing agencies and failure to
act under the appropiate provisions of the constitution. The learned counsel for the petitioner
and the Advocates supporting him have not denied that such disturbed conditions did not
prevail in sindh. According to them it was not a new situation which had developed during
the regime of people‟s party but it was inherited by them. it was a perennial problem
continuing since long and could not be controlled or wiped out within such a short period.
The problem was being tackled and was getting under control therefore, so far the internal
disturbances in Sindh are concerned they cannot have any nexus with the impugned order. It
seems to be an admitted position that dacoities, kidnapping for ransom, riots, highway
robberies, political violence, and terrorism were rampant in the entire Province of Sindh
irrespective of urban or rural areas. It had taken the entire Province in its grip. Human life,
honour and property were completely insecure and were at the mercy of the lawbreakers and
criminals. The learned Advocate-General has placed figures of crime during 1-12-1988 to 6-
8-1990 which are as follows:-
Persons killed in ethnic violence 530
Persons injured in ethnic violence 767

Dacoities 541
Rape 269
Kidnapping 1,709
Persons killed in terrorist activities 88
Persons injured in terrorist activities 165
Kidnapping for ransom 1,145
Arson 231
"According to the learned Advocate-General of Sindh besides the period of curfew ranging
up to four weeks in different areas curfew was imposed in Landhi for 403 days, Model
Colony 281 days, Sukhan 181 days, Malir 138 days, Malir extension 136 days, Gulberg 100
days, Liaqtabad 91 days, Nazimabad 74 days, Orangi 56 days, Peerabad 45 days, Korangi 41
days, Hyderabad 180 days and Nawabshah 47 days. In its counter-affidavit filed by the
Province of Sindh in Petition No.836 of 1990 the following averment was made:
'That the Provincial Government of Sindh had taken over the charge with full realization that
the criminal elements in the Province are in possession of sophisticated weapons having no
match with the weapons possessed by the police force. Even the number of police force was
not in equation with the rise of population. Revolutionary measures were required to be
introduced in police to cope with the criminals having modern weaponry and other facilities.
Latest weapons, vehicles, wireless system, computerization of records of criminals and rise of
number of police force had to be introduced immediately; but the same was not done. On the
contrary certain political personalities were involved in kidnapping for ransom including the
Ministers and Members of the Provincial Assembly. In this behalf the case of Mr. Ghulam
Uner, an MPA from Larkana who was arrested and facing trial in a case of kidnapping for
ransom. Another instance of such nature is a case of former Minister from Tando Allah Yar
who was also involved in kidnapping for ransom and harbouring dacoits. It is further
submitted that about 50 major gangs were involved in kidnapping for ransom from 1-12-1988
to 6-8-1990, but no effective measures could be taken by police forces preventing them from
anti-social culpable activities inasmuch as, many of these gangs had a protection of persons
of considerable influence and many of them were elected representatives sitting in the
Provincial Assemblies or holding the -office of Provincial Ministers. On 6-11-1990, five
notorious criminals were arrested by Dadu Police, namely Roshan Machi, Nahran Khoso,
Hassan Neich and Khuda Bux. The then Provincial Minister for Law, Pir Mazharul Haq
approached the district administration and police for their release. He was, however, told that
the persons were notorious criminals and could not be released. The Minister reportedly went
to C.I.A. and got them forcibly released from the lock-up. Report was sent to Government
but. no action was taken against the Minister."
At page 91 of the report, it was observed thus:-- ,
" ... ...According to Mr. Syed Sharifuddin Pirzada the Fedration has its own responsibility to
protect the Provinces from external aggression and internal disturbances. He has referred to
Article 148 which reads, as follows:-
' ... ... ... ... ... ... ... ... ... ... ... .,. ... ... ... ... ... ... ...
.…………………………………………………………
……………………‟
'It is the bounden duty of every Province to obey and comply with the Federal laws which
apply to the Provinces Article 148(3) casts duty upon the Federation to protect and save the
Provinces from external aggression and internal disturbance. It also compels the Federation to
see that the Government of the Province is carried on in accordance with the provisions of the
Constitution. Therefore, it is the duty of the Federation not only to take measures to protect
the Provinces from internal disturbance but can also devise ways and means to ensure that the
Government of the Province is run in accordance with the provisions of the Constitution. In
certain cases even directions can be issued to the Provinces. The words 'internal disturbances'
in the wider Constitutional background do not refer to minor clashes, riots, strikes or
incidents of similar nature which may disturb the peace and tranquillity of a Province in a
localised manner. Such small incidents may be every day happenings in the Provinces which
their Government fully equipped with power and resources. are expected to deal with such
situation. However, if situation arises that the internal disturbances are of such a serious
nature that the Provincial Government has failed to control them or that it is unable to,
manage it then Federation may take steps to protect the Province from such internal
disturbances In this regard even emergency can be enforced or Army may be called to assist
the civil administration. The learned counsel for the petitioner and Mr Lakho have contended
that even such internal disturbances have no nexus with the dissolution of the National
Assembly. If Federation does not offer protection to the Provinces against internal
disturbances, it fails in its Constitutional obligation. If the internal disturbances are of such
magnitude that they disturb the peace of the country, create anxiety, mistrust and
despondency in the entire nation, threaten the economic life and prosperity of the country
then in such a situation the Federation cannot sit idle and must take steps for the betterment of
the entire country. The learned counsel for the petitioner have contended that the situation in
Sindh has been termed by the Supreme Court in Saifullah's case as a perennial problem which
was persisting since long and therefore, no such dangerous situation had arisen which may
have called for such a serious action."
".., ...' ...By its geographical location Province of Sindh occupies a unique position and has
acquired a great importance in Pakistan. It has two ports for commerce and trade. The entire
import and export is run and maintained through the ports of Sindh. The foreign trade entirely
depends upon the conditions operating in Sindh. If there are internal disturbances, domestic
violence, highway robbery, kidnapping for ransom, arson, road blocking, bomb blasts in
public places and transport and railway compartments it will affect the entire country. That is
why when Karachi or Sindh jolts, the tremour is felt in the entire Pakistan. The incidents in
Karachi affect every part of the country. Karachi is a cosmopolitan town and has attained the
status of mini Pakistan. A man sitting at N.-W.F.P., Balochistan and Punjab cannot close his
eyes to the disturbed and violent conditions, ethnic riots, kidnapping, robbery and dacoity in
Karachi. The lifeline of Pakistan passes through Sindh. There have been incidents in Karachi
that for days together the commercial activities have remained at a standstill, banks have
remained closed, industries had become idle and Government offices were deserted. Such
conditions operating in a part of the country which is so important coupled 'With other factors
provided nexus to the order and had compelled the President to take the impugned action.
The observations of the Supreme Court in Saifullah's case were only in respect of law and
order situation particulars of which were not provided at any stage. Therefore, a solitary
instance or mere allegations of disturbance without giving full details justifying it will surely
have no nexus with such order. "
"... ... ...a letter of the President dated z8-5-1990 addressed to Mrs. Benazir Bhutto, the then
Prime Minister:-
"This is with a deep sense of anguish that I am reverting to the subject of the breakdown of
law and order in Sindh on which I had addressed a letter to you on 16th May. I had drawn
attention to the fast deteriorating law and order situation in the Province and mentioned that it
seemed to be getting out of control of the Provincial Government. I could not, however,
imagine that the situation would be so inaptly handed to achieve the officially stated object of
'arresting four criminals' or 'recovery of few arms' that we should have had to witness the
ghastly massacre of such a large number of innocent people as we did in Hyderabad and
Karachi.
"The example of such a carnage perpetrated by the administration in the sacred name of
restoring the supremacy of law is unparalleled in the history of the country when cognizance
is taken of the fact that the dead included as many as 27 women and children. It is a pity that
the Administration has so far not uttered a single word of remorse or of sympathy at this
wanton killing, nor publicly called to account those responsible for the gross inaptitude and
callous handling of the operation. "
"At mid-day. yesterday, when the shooting was in progress in Hyderabad, I had talked to you
on the telephone and you had pleaded with me to have faith in what you described as 'my
(President's own Administration'. I told you that this was an uncoordinated, ill-planned and
ill-advised action conducted in flagrant disregard of the law, rules and regulations, I had also
conveyed to you that it appeared as if the police was tasked to conquer the city. I had also
mentioned that while we were bitterly critical of the Indian action in Srinagar we were
enacting our own 'Jagmohan' in Hyderabad. In reply, you assured me 'that the situation was
fully under control of the Police', and you reiterated that I should have confidence in the
Administration which , in your word, was 'President's own'. You denied the allegation of
cutting off of water, electricity and gas supply to the people and stated that the action taken
was necessary to restore the supremacy of law. Unfortunately, you were not aware that right
at that moment when we were on the telephone thousands of people were already on the
streets, protesting against the Police brutalities, and the Army had to be called in minutes later
to take over the situation which by then had completely gone out of the Police control."
"For quite: some time, in the light of the: media and intelligence reports, I had been getting
increasingly worried, as I had conveyed to the Governor and the Chief Minister in my earlier
communication. over the ominous developments that were taking place in the Province. I had
discussed the growing tensions and enhanced polarization and their likely consequences, if
allowed to go unchecked, for the country, with. all responsible members of the Federal and
the Provincial Governments, including as you would recall, yourself, the Governor, the Chief
Minister. the Interior Minister, the Law Minister and Prime Minister's Ambassador at large.
In this context, I had made a suggestion for an All Party Conference to resolve the irritants
through debate and dialogue in conformity with democratic norms and practice. This advice
of mine has gone unheeded so far and, considering the political dimensions that the problem
has acquired, needs to be implemented.
"It would be recalled that, as the situation continued to deteriorate, the law-abiding citizens
resorted to an advertisement campaign pleading for the restoration of peace, and at the same
time and in the process casting aspersions on important personalities, including the President
and the Prime Minister, for their cold indifference. It was forcefully urged that law and order
should be restored by the Government through political dialogue and by acting in an even-
handed manner. I was reassured of the Prime Minister's concern and policy direction to the
Chief Minister through your letter of 3rd May."
"Nevertheless, I was not satisfied with the outcome of my efforts to persuade, warn and
impress upon the Government the necessity -f effective action in good time. I therefore, had a
meeting with the Governor Sindh on 3rd May in which we discussed the law and order
situation in Sindh against the background of crime statistics of 1989 and other official
information available on the subject. I also handed over to the Governor the excerpts from the
reports of the Intelligence Agencies pertaining to the large number of dacoities, kidnappings,
murders and deaths from violence for the period January-April, 1990 which he later
confirmed in his letter of 14th May to be correct."
"After waiting for a couple of weeks for the Provincial Government's response, I addressed a
letter to the Governor in the matter proposing that, 'unless the Provincial Administration can
suggest to him a more competent, credible, efficacious and quicker result yielding alternative-
of which having waited for it for months I personally see very, slim prospects--to apprise me,
applying your judicial mind, of your considered views whether the time has not come to call
upon the Armed Forces 'to act in aid of civil power' in Sindh in accordance with the
Constitution and law in order to bring the situation under control and restore the writ of law,
leading to complete normalcy in the Province. I urged upon him, 'time is of the essence and
we must proceed to act decisively before we see the complete collapse of the administration
and a total anarchy on our hands'.
"I was glad to see that the Prime Minister had more or less drawn the same conclusion
(except the use of the Armed Forces) in her letter of 3rd May referred to earlier, and stressed
on the urgency for action. "Before my letter, could reach the Governor, I received a letter
from him (perhaps as a follow-up of our meeting of 3rd May) in which he recounted various
measures that had been planned and were to be initiated by the Provincial Government. These
measures were further explained and elaborated to me during my visit to Karachi on 21/22
May, and it was on this basis that, discounting the possibility of Martial Law and Emergency,
I conveyed to the Press in the presence of the Chief Minister his assurances that, as a result of
planned measures, the situation would improve within the next 7/8 days. No indication
whatsoever was given to me of the action which the Provincial Administration thought fit to
take in Hyderabad involving the use of massive Police Force collected from the neighbouring
Districts, including the Eagle Squad. The tragedy that unfolded itself in Hyderabad after a
few days of my visit to Karachi completely shocked and astonished me.
"With great personal pain and anguish I note that my past forebodings and fears have come
true. Had my earlier advice and warnings been heeded and had the Army been entrusted with
the responsibility, at early stages, this carnage could have been avoided. Now that the Army
has taken over it would be advisable to let them remain in control till such time they have
accomplished the assigned mission of restoring not only the law and order but also the
confidence of the people in the writ of law and the Governmer;. However, positive results
would only be possible if the provisions of Article 245 of the Constitution enacted during the
last P.P.P regime are availed of.
The Government must also without further delay appoint a Judicial Enquiry Commission,
consisting of High Court Judges, to fix responsibility for the events of 26th and 27th May and
the alleged excessive use of force that was resorted to which resulted in a large number of
people being killed and wounded. Taking into account the manner in which the law and order
situation has continued to deteriorate and in the absence of self-imposing traditions of
acceptance of responsibility it is for serious consideration how ministerial accountability
should be enforced.
In conclusion, I must stress that, more serious options apart, reason to use of Article 245
appears to me to be the best and least expensive option for the Government to discharge its
Constitutional obligation of providing security of life, honour and property to the people and
to enable them to live in peace and dignity."
Earlier on 16-5-1990 the following letter was addressed to the then Prime Minister:-
"Kindly refer to the attached copy of my letter to the Governor Sindh regarding the fast
deteriorating law and order situation in that Province. I have asked him to consult the
Provincial Government, if he likes, on devising ways and means for restoring public
confidence in the Administration and for ensuring the fundamental right of the innocent
citizens to live in peace, honour and dignity as enshrined in the Constitution, and, unless the
Province has a better and more effective solution to the problem to suggest to him to let me
have his considered.
views whether the time had not come to call upon the Armed Forces 'to act in aid of civil
power' in Sindh in accordance with the Constitution and Law in order to bring the situation
under control. I am sure he would be consulting you in the matter.
"I am also enclosing a folder containing extracts from the reports of Intelligence Agencies
pertaining to the incidents of murder, dacoity, kidnapping etc. for the period from January to
April, 1990.
In the same report, Mamoon Kazi, J. observed as under:-
... ... ... Apart from the higher crime rate involving offences like dacoities, murder,
kidnapping for ransom and rape the Province of Sindh was best with ethnic strife, resulting in
loss of many lives. One of such instances quoted by him was the incident which took place at
Hyderabad on 29th May, 1990, when several people are said to have lost their lives on
account of the action taken by the then Provincial Government. No doubt, the problem of law
and order in Sindh had assumed alarming proportions, and to maintain law and order is one of
the primary functions of the Government but admittedly, law and order is a Provincial
subject. The Federal Government can only provide assistance to the Provinces in this regard
by virtue of Article 148(3). It Itas been contended that the Government in power in order to
meet the serious law and order situation should have invoked Article 245 of the Constitution
instead of Article 147 by assigning wider powers to the Army but the Government failed to
perform its Constitutional obligations under Article 148(3). Although, it appears that the
Government had totally failed in this regard but inability of the Government to control
deteriorating law and order situation in one Province only, may not justify dissolution of the
National Assembly unless it is shown that such a situation had also got its tantacles spread in
the other Provinces as well, but it is pertinent to note that deterioration of law and order can
only be a result, the causes for which may be different. If the law and order situation
prevailing in the Province of Sindh at the time of the dissolution of the Assemblies was a
simple law and order situation, the action might not have been justified. But if the situation
had sprung from causes such as ethnic strife which the Government was unable to control or
which were the direct result of a particular Government being in power, the action, by
dissolution of the Provincial Assembly of Sindh would be justifiable. However, the law and
order situation in only one of the Provinces did not justify dissolution of the National
Assembly. To this respect of the matter I shall once again advert while considering the case
of the petitioner in C.P. No.D-836 of 1990 which has been filed by the former Chief Minister
of.Sindh."
"36. As I have already pointed out, there was a complete breakdown of law and order.
According to the material placed before us by the Provincial Government, during the twenty
months' tenure of the former Sindh Government, there were 541 cases of dacoities committed
in various parts of the Province, 269 cases of rape and 709 cases of kidnapping for ransom.
Besides that, 530 persons were killed and 767 injured on account of ethnic violence and 88
persons lost their lives and 165 injured on account of terrorist activities. The figures provided
by the Provincial Government are staggering. It may be pointed out that there is always a
scope for improvement of law and order provided proper steps are taken in this regard.
However, the law and order problem, a major part of which also resulted from ethnic strife,
was allowed to deteriorate rather than improve and the Province appeared to be on the brink
of a civil war. Learned Advocate-General has pointed out that a complete state of anarchy
was prevailing in Sindh and the situation was chaotic. A complete breakdown of the
machinery of the Province was clearly visible, which, in my opinion fully justified the action
taken by the Governor of Sindh. No doubt the Supreme Court in Haji Muhammad Saifullah's
case held that a legislative assembly cannot be dissolved on the ground considered entirely in
a different perspective as there was a complete breakdown of the machinery of the Province
which justified in taking of action by the Governor. "
63 In the case of Sardar Farooq Ahmed Khan Leghari (supra), this Court held:
... ... ... ..Indeed the above distinction exists. However, it may be pointed out that the
suspension of the jurisdiction of this Court to enforce any one or more Fundamental Rights
mentioned in an order passed by the President under clause (2) of Article 233 defends on the
questions, as to whether the preconditions provided for in clause (1) of Article 232 were
present at the time of the issuance of the Proclamation, and, whether the suspension of
enforcement of any one or more Fundamental Righis was warranted - in terms of the
Constitutional framework. In other words, the exercise of power by the President under
clause (1) of Article 232 is conditional and can be invoked if the condtitions/prerequisites
contained therein are present. If the said conditions do not exist, the exercise of power by the
President under the above clause will be without jurisdiction and coram non judice. For
example, if we were to hold that the expression 'the security of Pakistan, or any part .thereof
is threatened by war or external aggression' used in clause (1) of Article 232 means actual
war or actual external aggression, the exercise of power under the above clause would be
without jurisdiction if factually no actual war -or actual external aggression existed at the
time of issuance of the Proclamation under the above provision; or if we were to hold that the
reasons which prompted the issuance of Proclamation under aforesaid clause (1) of article
232 have no nexus with the objects contained therein, such exercise of power by the President
will also be without jurisdiction and coram non judice.
“.......................................
"17. It seems that by now it is a well-entrenched proposition of law that notwithstanding the
ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the
relevant provision of the Constitution or of a statute is to be based on the satisfaction of a
State Functionary mentioned therein, the Court has the jurisdiction to examine whether the
prerequisites provided for in the relevant provision of the Constitution/statute for the exercise
of the power thereunder existed, when the impugned order was passed. If the answer of the
above question is in the negative, the exercise of power will be without jurisdiction calling
for interference by the Court. "
"46. I may take up the two retraining questions together which I have framed hereinabove in
para. 18, namley, whether keeping in view the various provisions of the Constitution and the
situation obtaining after detonating nuclear devices by Pakistan, an order by the President
under clause (2) of Article 233 of the Constitution was warranted; and whether this Court at a
subsequent stage can review the continuation of the Emergency. In this regard, it may be
pertinent to point out that in India and Pakistan, till the present decision, the view obtaining
on the above two questions was that the Courts had no jurisdiction to examine, as to whether
the President was justified to pass an order for suspending certain fundamental rights under
Article 359(1) of the Indian Constitution and Article 233(2) of our Constitution. There was
also consensus on the above second question, namely, that the Courts had no jurisdiction to
examine, whether the continuation of Emergency was justified after the cessation of
hostilities several years back. The latter view seemingly was based on the rationale that after
the cessation of hostilities, it was for the Government concerned to decide, how long it would
take to remedy the damages caused to the country by the war and that the Courts were not
equipped to assess the above situation. The above rationale is not applicable to the case in
hand as no war or external aggression had taken place; thus, the case-law cited on this aspect
is distinguishable.
It may also be pointed out that the above views run counter to the Fundamental Rights
guaranteed by the Constitution and the aforesaid International Covenants of Civil and
Political Rights, European Convention on Human Rights and American Convention on
Human Rights. In my view, a distinction is to be made between an emergency which is
imposed when a country is engaged in an actual war or is subjected to actual external
aggression and when the same is imposed on account of imminent danger thereof for the
purpose of suspension of fundamental rights and continuation of the emergency. In the
former case, the above Latin maxim inter arma silent leges (i.e. when there is an armed
conflict, the law remains silent) or that the national success in the war is to be ensured in
order to escape from national plunder or enslavement even if the personal liberty and other
rights of the citizens are sacrificed as observed by Lord Atkinson in the case of King v.
Halliday (supra) would be applicable. But in the latter case the rule of proportionality is to be
followed as propounded by some of the eminent authors and adopted under above Article 4 of
the International Covenants of civil and Political Rights. Article 15 of the European
Convention of Human Rights, 1967 i.e. a public emergency permits a State to take derogatory
measures in derogation of the covenants subject to the condition that the rule of
proportionality is observed meaning thereby, that the derogatory steps/actions should be to
the extent required by the exigencies of the situation provided such measures are not
inconsistent with their other obligations under the international law. The above view is
reinforced by the report of International Law Association, 1986 referred to hereinabove in
para.36(xix), that while imposing emergency following factors should be considered:-
(i)severity of cause defined generally as threatening the life of the nation;
(ii) good faith on the part of the imposing Government;
(iii) proportionality (relating to geographic scope, duration, and choice of measures strictly
required by the exigencies of the situation);
(iv) proclamation or notification;
(v) non-derogability of certain rights;
(vi) respect for other international obligations;
“.................................”
"47.............................
"After that on 13-7-1998 the President passed another order under the above provision of the
Constitution providing that in the said order (i.e. the order of 28th May, 1998), in the third
paragraph for the words 'all the Fundamental Rights conferred by Chapter I of Part IIF, the
words and figures 'the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23,
24 and 25' shall be, substituted. It may be mentioned that the wording of clause (1) of, Article
233 of the Constitution indicates that it is not mandatory that whenever a Proclamation of
Emergency is issued under clause (1) of Article 232 of the Constitution, an order under the
above clause is to follow. The use of the words 'for the enforcement of such of the
Fundamental Rights ... ...' As may be specified in the Order shows that the President is
required to apply his mind to the question, whether any order under above clause is
warranted. If so, to what extent. He is expected to make efforts td see that there should be
minimum disturbance of the Fundamental Rights of the citizens and the enforcement of those
Fundamental Rights is to be suspended which have direct nexus with the object to meet the
situation mentioned in clause (1) of Article 232 successfully. In the aforesaid first order dated
28-5-1998 the enforcement of all the Fundamental Rights including relating to prohibition of
slavery and freedom of religion was suspended. This demonstrates that the above order was
passed on the assumption that the same was mandatory. In the second order dated 13-7-1998
certain Fundamental Rights have been omitted.
“...............................................
“...............................................
"I am, therefore, of the view that the suspension of enforcement of the above Fundamental
Rights when under clause (1) of Article 233 the State had already acquired power to make
any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of
the Constitution, was not justified and warranted by law and, thus the s same was of no legal
effect. "
64. In his additional note in the above case, one of us (Irshad Hasan Khan J.) respectfully
following the observations of the Hon'ble Chief Justice. regarding suspension of Fundamental
Rights, observed at paragraph 16(F) at page 219 of the report, thus:-
"As to the question of suspension of Fundamental Rights, I respectfully follow the
observations of the Hon'ble Chief Justice that keeping in view the effect of the Proclamation
provided for in clause (1) of Article 233 of the Constitution, which authorises the State to
make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and
24 of the Constitution as also keeping in view the language of Articles 10, 23 and 25, which
are hedged with qualifications, an Order under clause (2) of Article 233 of the Constitution,
suspending the enforcement of the Fundamental Rights, was not justified, therefore, the
original order dated 28-5-1998 and the. Order dated 13-7-1998, varying the above earlier
Order, are declared as without lawful authority and of no legal effect."
Reference may also be made to the case of Malik Toti Khan v. The District Magistrate, Sibi
and Ziarat PLD 1957 Quetta 1, wherein it was observed as under:--'
"I recognize that this decision may cause difficulties to the administration in Balochistan area
where I understand that a sufficient number of judicial Tribunals does not exist nor is
adequate machinery for police investigation of criminal cases in existence. Such
constderations,however, would be irrelevant when we are adjudicating on the effects of the
fundamental rights guaranteed by the Constitution. The remedy lies obviously with the
Legislature or with the Executive Authorities who can make good the deficiencies of the
administration. The argument of inconvenience, cannot be allowed to override the
Constitutional provisions guaranteeing fundamental rights to all citizens of Pakistan."
65.In the case of Brig. (Recd.) F. B. Ali v. The State PLD 1975 SC 506, while discussing the
validity of Ordinances 3 and 4 of 1967, whereby certain clauses were added to sections 2 and
59 of the Army Act, particular Fundamental Rights were also taken into consideration and
dilated upon by Anwarul Haq, J. (as he then was), at pages 548 and 550 of the report,
observed:--
"The validity of Ordinances 3 and 4 of 1967, by which certain clauses were added
respectively to sections 2 and 59 of the Army Act, was challenged, on behalf of the
appellants, on two main grounds:-
"(a)That the subject-matter of these Ordinances did not fall within any of the items mentioned
in the Third Schedule to the 1962 Constitution, and, therefore, they were ultra vires of the
law. making power conferred
"' on the President of Pakistan by Article 29 of the said Constitution read with Article 131
thereof; and'
(b)That the Ordinances were violative of Fundamental Rights Nos. 1 and 1-5 guaranteed by
the Constitution of 1962, and, therefore, void under Article 6 thereof to the extent of such
inconsistency."
"It seems to me, therefore, that, as held in Ch. Manzoor Elahi's case the injunction as
embodied in Fundamental Right No. l of the 1962 Constitution required the Court to ensure
that-
(a)the deprivation of life and liberty of a person is under, and in accordance with, law; and
(b)that the law in question is a valid law in term of the Constitution as well as the accepted
forms of legal process obtaining in the country.
"If the law violates accepted legal and juridical norms it would be repugnant to Article 9 of
the Constitution even though it may, have been enacted by a competent Legislature.
"Coming now to the substance of the contention rmst2d on behalf of the appellants with
reference to Fundamental Right No. l our attention was drawn by Mr. M. Anwar to the
criteria of a fair tri:i. as enumerated on page 197 of the Constitution of the Islamic Republic
of Pakistan (1962) by Mr. M. Monir, a former Chief Justice of Pakistan. Accordmi2 to the
learned Author,, in a criminal trial, an accused person has under the general law some
important rights.
These are:-
"The right to know before the trial the charge and the evidence against him;
The right to cross-examine the prosecution witnesses;
The right to produce evidence in defence;
The right to appeal or to apply for revision;
The right to be represented by counsel;
The right to have the case decided by the Judge who heard the evidence;
The right to trial by jury or with the aid of assessors;
The right to certain presumptions and defences; and
The right to apply for transfer of the case to another Court."
"The right mentioned at No.7 is no longer operative in Pakistan as the requirement of a trial
by jury or with the aid of assessors was dispensed with long ago. The other rights enumerated
by Mr. Munir are clearly available in a trial by a Court-Martial. Although there is no appeal
to a higher Court, yet the convicted accused has a right of revision to the Commander-in-
Chief of the Pakistan Arm, or to the Federal Government under sections 131 and 167 of the
Army Act. It is true that Court-Martial is not required to write a detailed judgment,
commonly done by the ordinary criminal Courts of the country, yet this is obviously not one
of the essentials of a fair trial, it being intended more for the benefit of the Appellate Court
rather that. for that of the accused."
"I may, add that, as observed by Halsbury on page 825, the CourtsMartial are parts of the
ordinary law of the land, and must not be confused with Martial Law Courts which are
brought into existence on suspension of the ordinary law. Any criticism or misgivings
attaching to the functioning of Military Courts under Martial Law cannot be imported into a
consideration of the fairness of trial held by Courts Martial established under the relevant
Acts for the Army, Navy and Air Force. These Courts-Martial are intended to regulate the
discipline and conduct of the personnel of the respective Forces, and of all other persons who
may be made subject to these laws in certain circumstances. They are thus established,
institutions with well-known procedures, which cannot be described as arbitrary, perverse or
lacking in fairness in any manner."
"I am, therefore, of the view that there is no merit in the contention that a trial by Court-
Martial violates the accepted judicial principles governing a fair :trial as obtaining in
Pakistan. The impugned Ordinances cannot accordingly be invalidated with reference to
Fundamental Right No. l of the 1962 Constitution. "
The above observations by Anwarul Haq, J. (as he then was), were also quoted with approval
by my learned brother Saiduzzaman Siddiqui; J. in the case of Mst. Shahida Zahir Abbasi v.
President of Pakistan PLD 1996 SC 632.
66. The plea raised by the learned Attorney-General that the impugned I legislation falls
within the category of reasonable classification is not sustainable. Suffice it to say that the
provisions of clause (1) of Article 245 in the purported exercise whereof the Military Courts
were established/convened nor the power to legislate the impugned Ordinance find support
from Entry No. l read with Entry No.59, contained in the Federal Legislative List as
vehemently contended by the learned Attorney-General. The subject-matter also does not fall
under the residuary Entry No.59, relatable to matters incidental and ancillary to any,matter
enumerated in Part I of the Federal Legislative List. The above Entry indicates that the
Parliament can legislate in respect of jurisdiction and power of all Courts except the Supreme
Court'with respect to any of the matters in the aforesaid - List but to such extent as expressly
authorised by or under the Constitution. Clearly, the jurisdiction of the Supreme Court can,be
enlarged but cannot be curtailed in any circumstances whatsoever. It is reiterated that the
Military-Courts do not fall under any of the provisions of the Constitution, therefore, the trial
by these Courts of civilians for civil offences, which have no nexus with the Armed Forces or
Defence of Pakistan would be ultra vires of the Constitution. Thus, visualized, the
establishment of the Military Courts cannot be upheld on the basis of reasonable
classification as spelt out in the case of Brig. Retd. F.B. Ali (supra), heavily relied upon by
the learned AttorneyGeneral. The above decision, is distinguishable and not applicable to the
controversy involved in this case.
67. In the case of Muhammad Yaqoob Khan v. Emperor PLD 1947 PC 39, it was held that
the Army Act intended the findings of a Court Martial, as and when confirmed by the proper
confirming officer, to be final, subject only to the power of revision for which that Act itself
provides. There is no room for an appeal to His Majesty-in-Council consistently with the
subject-matter and scheme of the Act. It may, however, be observed that now through recent
amendment an Appellate Court has been created by introducing sections 133-A and 133-B in
the Army Act.
68. Reference may be made to the case of Muhammad Nawaz v. Crown 1951 FCR 135,
wherein it was held that "a Court Martial is a Court within the meaning of section 3 of the
Judicial Committee Act, 1837, and as proceedings before a Court-Martial are of a criminal
character, it is a criminal Court. But 'it is a Court administering' statutory military law. It is,
therefore, a Court of special jurisdiction, not amenable to supervision or control by any
judicial body or Court of Justice, administering the general law, except where they may be
found to have acted without jurisdiction or in excess of it."
69. Learned Attorney-General relied on the case of The King v. The -Army Council Ex parte
Ravenscroft (1917) 2 KB 504, to contend that Civil Courts will not intervene in matters
relating to military law and discipline and that Courts could not issue a writ of mandamus
against Military Courts, because, "to do so would make the military law dependent upon the
Civil Court". Reference may also be made to Halsbury's Laws of England, page-325, to show
that the English Army and the Air Force Acts of 1955 and the Naval Discipline Act of 1957
are parts of the ordinary law of the land and must not be confused with Martial Law when a
state of war exists, and indicates the suspension of the ordinary law".
The above decisions were also noted by Hamoodur Rehman, CJ in Brig. Retd F.B. Ail's case
supra, who, at page 540 of the same report, has observed as under:-
"Thus the extension of the Army Act to civilians, as has been done by the amendment of the
Army Act, is nothing unusual. Under the English Law also civil offences committed by
persons subject to the Courts of the Army, Navy and Air Force-, would be triable by the said
Courts except for certain specified offences in the same manner as provided in section 59 of
the Army Act. "
70. Learned Attorney-General also referred to the following. decisions of British Courts,
arising out of - acts, done by the Military Authorities during Martial Law. In this connection,
he first referred to the case of D.F. Marais. v. The General Officer Commanding the Lines of
Communication and the Attorney-General of the Colony Ex parte D.F. Marais, wherein the
ratio. of the judgment has been expressed in the following words: -
"Where actual war is raging, acts done by the military authorities, are not justiciable by the
ordinary Tribunals."
"The fact that for some purposes some Tribunals have been permitted to pursue their ordinary
course in a district in which martial law has been proclaimed is not conclusive that war is not
raging. "Elphinstone v. Bedreechund, (1830) 1 Knapp, P.C. 316, followed."
"Special leave to appeal refused from a judgment affirming the rightful custody of the
petitioner by the military authority in a district in which martial law prevails."
Reference was also made to the case of Tilonko v. The AttorneyGeneral of the Colony of
Natal. 1907 Privy Council 1906, wherein ratio of the judgment was expressed in the
following words:-
"There is no analogy between Courts-Martial, so-called, administering punishments and

restraining acts of repression and violence under the supervision of a military commander and
the regular proceedings of Courts of justice."
"Where the local Legislature has declared sentences of this kind to be lawful, the Judicial
Committee has no power to inquire as to their propriety or as to the propriety of the
legislation; and a petition for special leave to appeal from any such sentence must be
dismissed."
The above decisions are not helpful in that during the colonial era fundamental rights were
not enforced.
71. Passages were again quoted by the learned Attorney-General from the case of Niaz
Ahmed Khan (supra) and in particular observations made at pages 647 and 648 of the report,
which read thus:-
"The curtailment of Civil Courts' jurisdiction on the failure of civil power to operate due to
domestic disturbances beyond its control and the Militia called in to execute the laws of the
land is an accepted position. in many Constitutional jurisdictions, and if the Constitution
Seventh Amendment Act, 1977 has just brought in what is otherwise accepted in the parallel
systems of basic laws governing State and indeed what finds place in certain Constitution. I
do not see how an argument is available that the power of superior Courts in Pakistan has
been trampled upon by the newly-added clause (3) of ArtVe 245 to the extent that having
regard to the general scheme of the Constitution providing for trichotomy of powers, the
Judiciary has been offended to the extent which is not permissible by the inherent juristic
philosophy of the Constitution. I have already held that the encroachment upon High Courts'
jurisdiction under Article 199 is a stop gap arrangement meant to last so long as the Armed
Forces are acting in aid of civil power. I may add here that by its very nature the curtailment
of High Courts' jurisdiction cannot be of lasting nature, for, the express words for the time
being' signify beyond doubt that the Makers of the Constitution did not mean to deprive High
Court of its jurisdiction for any length of period which may be viewed as permanent or even
semipermanent. It is also inherent in the scheme of Article 245 that the direction to call upon
the Armed Forces to aid civil power is to last for such period as is essential and the newly-
added clause (4) further fortifies the view that the curtailment of High Court's jurisdiction is
for a short and temporary period as any proceedings in relation to an area referred to in clause
(3) instituted on or after the day the Armed Forces start acting in aid of civil power is to
remain suspended for the period during which the Armed Forces are so acting. I am,
therefore, clearly of the view that the provisions contained in the newly-added clause (3) of
Article 245 by their very nature are of temporary character, and the Makers of the
Constitution taking into consideration the position that has prevailed under English Common
Law considered it fit, in their wisdom, to insert these provisions in our Constitution. "
72. The stance taken by the learned Attorney-General is that the Military Courts were not
established under Article 175(1) of the Constitution. These Courts were merely an
arrangement in the supreme national interest, in that the civil power of the country has failed.
I am unable to subscribe to the above plea.
73. The Courts/Tribunals which are manned and run by the Executive Authorities, without
being under the control and supervision of the High Court in terms of Article 203 of the
Constitution could hardly meet the mandatory requirement of the Constitution and that in
order to ensure independence of the Judiciary, any Court or Tribunal, which is not subject to
judicial review and administrative control of the High Court and/or the Supreme Court does
not fit within the judicial framework of the Constitution. Refer case of Mehram Ali (supra), in
paragraph 12 at page 1478,' whereof it has been observed thus:-
" We will have to examine the various provisions of the A.T.A. in the light of the above legal
-principles deducible from the case-law referred to hereinabove. However, before doing so
we may refer to the submission of Ch. Muhammad Farooq, learned Attorney-General, that
the terrorism has attained global magnitude and that in Punjab and Karachi there were very
grave incidents of terrorism involving brutal kills of innocent persons inter alia, on sectarian
basis inter alia at the places of worship. According to him, the A.T.A. is founded on
reasonable classification having nexus with the object for which it was enacted. In this
regard, it may be pertinent to mention that in the case I.A. Sherwani and others v.
Government of Pakistan 1991 SCMR 1041. The Court while dealing with certain
Constitutional petitions under Article 184(3) of the Constitution filed on behalf of the old
pensioners assailing discrimination treatment meted out to them by the Government, the
following principles of law on the question of classification were deduced after referring the
case-law of foreign jurisdiction as well as of Pakistani origin--
(i) that equal protection of law does not envisage that every citizen is treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be
treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable

distinction or reasonable basis;
(iii) that different laws can validly be enacted, for different sexes, persons of different age
groups, persons having different financial standard and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be

laid down as what may be reasonable classification in a particular set of circumstances, may
be unreasonable classification in a particular set of circumstances, may be unreasonable in the
other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if
there is sufficient basis or reason for it, but a classification which is arbitrary and is not
founded on any rational basis is no classification as to warrant its exclusion from the mischief
of Artice 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;
(vii) that in, order to make a classification reasonable, it should be based-
(a) on an intelligible differentia which distinguishes persons or things that are grouped
together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification.
The above-quoted principles were reaffirmed by this Court in the case of Government of
Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993
-SC 341 (supra).
Indeed under above-quoted sub-para. (iii), it has been laid down that different laws can
validly be enacted for. different sexes, persons in different age groups, persons having
different financial standing and persons accused of heinous crimes. Idowever, this does not
mean that a parallel judicial system can be created in violation of Articles 175, 202 and 203
of the Constitution. There can be Special Courts trying heinous crimes expeditiously, but the
same should be within the framework of the Constitution," '
74. Before concluding this judgment, it may be observed that the system of administration of
justice in the civilized world including Pakistan is confronted with case loads. The work-load
in the subordinate Courts including the superior Courts experienced a fantastic growth during
the past 25 years. Continual addition of Judges and Courts in all branches of law is a
temporary solution to the back log crises. Many potential solutions exist to resolve the crises,
but decision-makers have not taken any appropriate steps to help solve the problem, in that,
the Judiciary has no lobby. The S.A. Rehman Law Commission, 1958 expressed the view that
there was no fault with the existing judicial system. However, some recommendations,
through making appropriate amendments in the Civil Procedure Code, 1908, were accepted
by the Government, but were not acclaimed by the people including the Members of the Bar
and the Bench and the same were, therefore, withdrawn. Justice Hamoodui Rehman Law
Reform Commission Report, 1967-70, also did not point out any major fault with the existing
legal system. The recommendations made by the.Commission for increasing the strength of
Judicial Officers and provision of facilities in the Court Rooms, have not been adhered to.
The High Powered Law Reform Committee, also gave recommendations for increase in the
number on Judges and provision of adequate number of Court Rooms and proper
accommodations to Judicial Officers but with no success. The Law Committee for
Recommending Measures for Speedy Disposal of Civil Litigation, 1978; also reiterated its
recommendations regarding increase in the strength 'of Judicial Officers and adequate
facilities in Court Rooms/accommodations for Judicial Officers but with no result.
75. Pakistan Law Commission in its Report on Criminal Justice System, published in 1997,
also made comprehensive recommendations for stlengthening the existing judicial system but
much is desired to be done. The Committee on Islamisation of Laws and Establishment of,
Qazi Courts, 1980, also suggested some structural changes to the system of administration of
justice, recommending inter alias-
"(a)The present adversary system should be replaced by Amicus Curiae System;
(b)Discretion of Courts in the matter of frequent adjournments and of remand should be

curtailed;
(c)Persons avoiding service of notice and process should be penalised;
(d)The procedure should not be regarded as an-end in itself. The Courts should not be a slave
to it, but should be inspired to do justice;
(e) In civil cases, the Courts should, from the very beginning, use its good offices to bring
about a_ compromise between the parties:
(f) The Appellate and Revisional. Courts should not remand the cases in routine;
(g)Back-log of cases should be cleared by appointment of sufficient number of retired

Judicial Officers;
(h)Judgment should immediately follow the completion of the hearing of a case. The
judgment should be brief and to the point;
(i)Defects in pleadings to be immediately rectified without any formality."
The above recommendations have also not been implemented so far.
76. The Law Commission has also stated in its report that the present Judicial System is time-
tested and has been generally sound. Due to its practice for a long period of time, the system
is fully understood by the people and generally approved of. It generally enjoys the trust and
confidence of the people.
77. The Commission also emphasised the need for increase in the number of Judicial Officers
to clear the back-log in the subordinate Courts in addition to a large number of pending cases
in the Special Courts for Suppression of Terrorist Activities, 1995 in various Provinces. The
Commission was of the view that to clear such back-log. "It would be essential that the
criminal justice system is reformed so as to be able to promptly punish the criminals and
serve as deterrent to would-be criminals. Such reform measures, however, should aim at
improving and strengthening the system rather than substituting it with another. There is
scope within the system for special procedure so as to put an end to acts of violence and
terrorists activities. Such measures, however, should be within the ambit of the Constitution,
because to do otherwise. would be illegal. In suggesting any reform to the judicial. system,
one should be conscious of the principles prescribed by the Constitution, such as the
trichotomy of powers, separation of Judiciary from the Executive and the independence of the
judiciary. Care must be taken of the fundamental rights of citizens which are guaranteed by
the Constitution and enforceable through the Courts. Keeping in view the above scenario, it
would be difficult to reconcile to the idea of creating a parallel judicial system or a dual
system of administration of justice in the country. Such an idea should not be explored, for
the reason that this country has had, in the past, pretty bad experiences of this nature. Special
Courts created outside the regular judicial system, are generally abhorred and detested by the
people, and rightly so, as in the past, they are used as instruments of victimisation against
opponents. Examples abound when miscarriage of justice took place. Common sense
demands that we learn from past mistakes and refrain from repeating them. It is, therefore,
recommended that appropriate reforms and changes should be introduced within the
prevailing judicial system for improving its efficiency and performance. In this respect, the
Government may consider introducing appropriate reforms of the law, procedure and take
administrative measures for effectively tackling the problem of violence and terrorists' acts in
the society ....".
78. Apart from highlighting the need for provision of Court Rooms and allied facilities,
training/orientation of Judicial Officers and the improvement in the terms and conditions of
services of Judicial Officers, it was found that the system of process serving in respect of
criminal/civil cases was. defective. "Abnormal delays" occur in the process serving because
of which the trial is delayed. In criminal cases the police personnel serve summons and
notices on persons. It was recommended that .the task of process serving should be performed
by separate agency under the control of the High Court and District Courts. Such agency
should be used for process serving both in civil and criminal cases. The Government was
suggested to review the terms and conditions of service of process-servers with a view to
bringing about some improvement .in the salary structure and other terms and conditions of
service. They should be provided motor cycles for quick service. They should also, be given
incentives in the shape of emoluments for exemplary performance and should be held
responsible and accountable for deliberate default/delay or inefficient performance.
79. In Justice Hamoodur Rehman Law Reform Commission Report, 1967-70, it was found
that delay in criminal cases was due to delay in investigation, inefficiency and lack of
integrity on the part of investigating officers and their engagements in other miscellaneous
police duties, delay in obtaining expert opinion, particularly, of the Medical /Forensic report,
lack of proper supervision by the superior police officers and lack of public cooperation, etc.
The same recommendations were reiterated by the Pakistan Law Commission in its 22nd
Report. It was observed:
"The maximum period for the submission of challan is 14 days, which should be strictly
adhered to. In appropriate cases, contempt proceedings may be initiated against the
investigating officer who deliberately or negligently causes delay in submitting challan or
deliberately distorts investigation with a view to favour or disfavour someone. Again, in
appropriate cases, with a view to prevent delay in trial, challan may be submitted even if the
report of medico-legal, forensic or ballistic expert is awaited. Such reports may be submitted
later in point of time. In cases, triable by the Court of Session, the challan rather than being
submitted to the Magistrate/s 190(3) of the Code should be sent directly to. the Court of
Session."
80. Defects in the investigating agencies, lack of security to the witnesses/litigants,

Advocates and the Presiding Officers of the Courts is one of the major causes for delay in
criminal cases. It would be reproduce the summary of recommendations made by Pakistan
Law Commissions in its 22nd Report, which should be given serious consideration by the
Government to fulfil its Constitutional obligations to ensure inexpensive and expeditious
justice as contemplated by Article 37 of the Constitution instead of creating a parallel judicial
system in any manner whatsoever:-
(1)"Rather than creating a parallel judicial system the Government should strengthen the
existing system of administration of justice which is I time-tested and enjoys the confidence
of the people. Given due 1 facilities, this system has the capacity and strength to ensure the
expeditious disposal of cases.
(2)With a view to resolve the problem of backlog and ensure quick disposal of cases, the
Government should increase the number of Judges and Judicial Officers:
(3)The problem of delays may also be tackled through enhancing the retirement age of
Judges. The Government may, therefore, also consider this option.
(4)The Government should provide necessary funds for construction of proper Court-rooms,
provision of adequate ministerial staff, typewriters and stationary, etc. to Courts.
(5)Arrangement should be made for the pre- and in-service training of iQ' Judicial Officers.
Libraries should be established and adequate books and other material made available to
Judges. Funds may also be provided for installing computers in Courts.
(6)With a view to attract capable, competent and qualified persons as Judges/judicial officers,
their terms and conditions of service should be improved. In particular, the problem of
accommodation and transport should be resolved.
(7)The system of process serving should be improved. The task of process serving in criminal
justice system should be assigned to a separate agency under the control of High Courts and
District Courts. Such agency should be utilised for process serving both in civil and criminal
cases. The Courts should make full use of the system of "substituted service."
(8)For timely submission of challan, the investigating branch of the police should be
strengthened, the number of forensic science laboratories increased and the Courts should
take serious notice of negligence or undue delay/default in the timely submission of challan.
(9)Better seating arrangements be made for litigants and witnesses and the amount payable to
witnesses as travelling allowance and diet money should be rationalised. Witnesses and
litigants should also be given due protection. The Courts should take serious view of
situations when witnesses deliberately avoid/evade appearance in Courts. Arrangements I
should be made for transporting undertrial prisoners to Courts. The High Courts should issue
instructions to Courts to conduct hearing regularly and on day-to-day basis.
(10) With a view to overcome the" problem of congesftion in jails, and so as to liberalize the
law relating to bail, section 497 of the Cr.P.C. be amended, creating therein three categories
of bail; first, when offence is punishable for a period not exceeding 3 years and accused
detained for a period exceeding 6 months but trial has not yet concluded; second, when
offence is punishable for a period exceeding 3 years but not punishable with death and
accused detained for a period exceeding one year but trial has not yet concluded; and third,
when offence is punishable with death and accused detained for a period exceeding 2 years
but trial has not yet. concluded.
(11) Frequent adjournments of cases should not be allowed. In cases of adjournment at the
request of the counsel due to appearance in a higher Court, it should be allowed only on an
application alongwith a copy of the cause list.
(12) With a view to achieve the goal of expeditious trial, the High Courts should examine the
possibility of bifurcating the civil and criminal functions of District and Sessions Judge so
that they are assigned responsibilities exclusively for the trial of civil and criminal cases.
(13) There is a need for organised and methodical arrangements of supervision and control by
the High Courts over the functioning of subordinate Courts. The cases of corruption,
inefficiency and inproficieney must be taken notice of and appropriate punishments awarded.
Strict control must also be exercised by the District Magistrate over the functioning of
Executive Magistrates under his control. There should also be a system of reward and
incentives in the shape of giving special increments, preference in promotion nor choice of
posting for Judges/Magistrates whose performance is exemplary.
81. Civilization of a country is measured by the respect, the Government has for the
Judiciary. A fair and effective criminal justice system marks the distinction between the
civilized society and anarchy. If the judicial system is allowed to function without any let or
hindrance and if it works well, the people can live their lives peacefully and enjoy freedom,
security of their persons as well as rewards of their labour as guaranteed under the
fundamental rights provided in our Constitution. If such judicial system works badly or it is
not allowed to function effectively by not adhering to the conditions precedent for
the smooth running of the same i.e. by effective and efficient deployment of law
enforcing agencies, fair and expeditious investigation of the crimes and
commitment on the part of the Presiding Officers as well as the Bar, litigants and
witnesses, then the lives of the people would be marred by constant fear of crimes
including terrorism. What is, therefore, needed is a strategy to be evolved by the
Executive as well as the Judiciary, determining the priorities and objectives in a
coherent way. This can be done only if all directions are made by the Executive,
Legislature and Judiciary to sustain the rule of law by preventing crime. Wherever
possible by detecting the culprits by law enforcing agencies, by conducting the
investigation justly, fairly, expeditiously and in accordance with law; prosecuting
the culprits before competent Courts by convicting the guilty and awarding them
suitable sentences and acquitting the innocent. A genuine effort must be made by
all and sundry for the maintenance and encouragement of public confidence in the
existing criminal justice system, not by replacement thereof by establishment of
Military Courts for which there is no warrant in the Constitution. However, the
Presiding Officer of a Court must also evolve a strategy in every case assigned to
him for greater efficiency and effectiveness in accordance with law and procedure
in force. Every section of the people, particularly, the legal community, the media
.and litigants must help in strengthening the criminal justice system of the country.
To do this we need the help of not only the black-coated fraternity and Judges and
personnel, working in the criminal justice system but also each and every member
of the public, who values a civilized society. The Government must also seriously
consider suitable increase in the manpower of the police and take adequate
measure to make them effective in the maintenance of rule of law. This can be
achieved only' if people have confidence that the police are operating effectively
and properly. It is a vital aspect of the strategy to build up confidence between the
police and the community at large. It is unfortunate that there is a general
complaint by the people that the police at times do not entertain ordinary
complaints relating to the commission of cognizable offences, which is mandatory
upon them as contemplated by section 154 of the Code. The people have to rush to
the High Court for seeking directions to the police for lodging F.I.Rs. and to
undertake investigation of complaints. A system must be established for
monitoring the incidence of terrorists attacks so as to enable the police to detect
patterns of attack and to deploy main power to the best advantage. The Federal
Government also must take steps in close collaboration with the Provincial
Governments to take appropriate measures and evolve a strategy for crime
prevention A system must also be evolved to respond to the victim's material needs
although the accused has also a right to a fair trial. If some changes are required in
the criminal law, it is the responsibility of the Government to make amendments in
the existing law in conformity with the Constitutional provisions and not by,,
replacing the existing Courts or creating parallel Courts as has been attempted to
be done through the impugned Ordinance. I may also add that salaries of not only
Judges of the subordinate Courts and their staff but even those of
secretarial/personal staff, attached with the Judges of the superior Courts, are
extremely low. This seriously impairs administration of justice at ,all levels and
needs to be remedied at the earliest.
82. Above are the reasons pursuant to the short order dated 17th February 1999,
which reads as follows:-
"After hearing the learned counsel for the petitioners, the petitioners in person, the
learned Attorney-General for Pakistan and the learned Advocate-General, Sindh,
for the reasons to be recorded later, we are of the view that Ordinance No.XII of
1998 as amended up to date in so far as it allows the establishment of Military
Courts for trial of civilians charged with the offences mentioned in section 6 and
the Schedule to the above Ordinance are declared unconstitutional, without lawful
authority and of no legal effect and that the cases in which sentences have already
been awarded but the same have not yet been executed shall stand set aside and the
cases stand transferred to the Anti-Terrorist Courts already in existence or which
may hereinafter be created in terms of the guidelines provided hereunder for
disposal in accordance with the law. The evidence already recorded in the above
cases and the pending cases shall be read as evidence in the cases provided that it
shall not affect any of the powers of the Presiding Officer in this regard as is
available under the law. The above declaration will not affect the sentences and
punishments already awarded and executed and the cases will be treated as past
and closed transactions.
"2. However, we are not oblivious of the fact that terrorism in Karachi and in other
parts of Pakistan has not only taken toll of thousands of innocent lives but has also
affected the economy of the entire country and it is a, matter of paramount
importance that this menace is eliminated effectively in the shortest possible time,
for which a solution be found within the framework of the Constitution.
"3. Since we are seized of these petitions in exercise of our Constitutional

jurisdiction under Article 184(3) of the Constitution, we lay down the following
guidelines which may contribute towards the achievement of the above objective:--
"(i) Cases relating to terrorism be entrusted to the Special Courts already

established or which may be established under the Anti Terrorism Act, 1997
(hereinafter referred to as A.T.A.) or under any law in terms of the judgment of
this Court in the case of Mehram Ali and others v. Federation of Pakistan PLD
1998 SC 1445;
"(ii) One case be assigned at a time to a Special Court and till judgment is
announced in such case, no other case be entrusted to it;
'(iii) The concerned Special Court should proceed with the case entrusted to it on
day-to-day basis and pronounce judgment within a period of 7 days as already
provided in A.T.A. or as may be provided in any other law;
"(iv) Challan of a case should be submitted to a Special Court after full preparation
and after ensuring that all witnesses will be produced as and when required by the
concerned Special Court;
"(v) An appeal arising out of an order/judgment of the Special Court shall be

decided by the Appellate Forum within a period of 7 days from the filing of such
appeal;
"(vi) Any lapse on the part of the investigating and prosecuting agencies` shall
entail immediate disciplinary action according to the law applicable;
"(vii) the Chief Justice of the High Court concerned shall nominate one or more
Judges of the High Court for monitoring and ensuring that the cases/appeals are
disposed of in terms of these guidelines;
"(viii) That the Chief Justice of Pakistan may nominate one or, more Judges of the
Supreme Court to monitor the implementation of the above guidelines. The Judge
or Judges so nominated will also ensure that if any petition for leave/or appeal with
the leave is filed, the same is disposed of without any delay in the Supreme Court;
"(ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of
the A.T.A., the assistance of the Armed Forces can be pressed into service by
virtue of Article 245 of the Constitution' at all stages including the security of the
Presiding Officers, Advocates and witnesses appearing in the cases, minus the
process of judicial adjudication as to the guilt, and quantum of sentence, till the
execution of the sentence."
83. Before parting, I must pay tribute to the learned counsel for the petitioners in
the above petitions, Ch. Muhammad Farooq learned Attorney General for Pakistan;
for the hard work which they put in and for their laudable efforts to assisting us to
come to a conclusion in a matter of far-reaching consequences and of great public
importance.
(Sd).
IRSAHD
HASSAN KHAN, J.
RAJA AFRASIAB KHAN, J.---On 17-2-1999, Constitution Petition No 37 of

1998 (Sh. Liaqat Hussain v. Federation of Pakistan). Constitution Petition No. 38
of 1998 (Syed Iqbal Haider v- Federation of Pakistan), Constitution Petition No.42
of 199.8 (M.Q.M. through its Deputy Convener v. Federation of Pakistan),
Constitution Petition No.43 of 1998 (Shahid Orakzai v. President of Pakistan and
another) and Constitution Petition No.4 of 1999 (Nisar Khurho v. Federation of
Pakistan and 2 others) were disposed of by this Court through short order whereby
the establishment of Military Courts in Karachi for trial of .civilians charged with
the offences under section 6 and the Schedule to the Pakistan Armed Forces
(Acting in Aid of the Civil Power) Ordinance, 1998 (Ordinance XII of 1998)
promulgated on 20th of November, 1998 as amended uptodate, was declared
unconstitutional, without lawful authority and of no legal effect. It was ordered that
the cases in which sentences had been passed but were not executed, would stand
set aside and these cases had to be transferred to the Anti-Terrorist Courts for their
trial and decision. Apart from the above declaration, guidelines were provided to
the Anti-Terrorist Courts for the disposal of the cases referred to above. It was held
that the sentences and punishments already awarded and executed, would be
treated as past and closed transactions. It has been mandated that, at a time, only
one case shall be assigned to the Anti-Terrorist Court and till the judgment of that
case is announced, no other case has to be entrusted to that Court. The Court was
directed to conduct day-to-day proceedings and pronounce the judgment within 7
days. The prosecution has been directed to submit complete challan with full
preparation before the concerned Special Court ensuring that all the witnesses are
to be produced as and,- when required by the Court. An appeal which may arise
out of order/judgment of the Special Court, has been ordered to be decided by the
appellate Forum within seven days from the date of its filing. Any lapse on the part
of the Investigating/Prosecuting Agencies has been made actionable. It has been
directed that protection shall be given to the Presiding Officers, Advocates and the
witnesses who are to appear in such cases by invoking Article 245 of the
Constitution.
In pursuance to the above order, leading judgment has been rendered by the
Hon'ble Chief Justice of Pakistan wherein all the points raised and argued by the
learned counsel for the parties have been attended to in depth and decision thereon
has been given in very exhaustive and illuminating manner. I had the privilege to
read the judgment of the Hon'ble Chief Justice with which f have expressed my full
agreement. However, I intend to add a brief note of my own in view of the
importance of the controversy.
Our unanimously adopted Constitution of the Islamic Republic of Pakistan. 197:1

is based on the principles of trichotomy of powers. Obviously these powers have
been distributed among the three pillars of the State namely. the Legislature. the
Executive and the Judiciary. The Objectives Resolution has been made a
substantive part of the Constitution vide Article 2A wherein It has been
commanded that the independence of the Judiciary shall be fully secured. In other
words, a very heavy task has been assigned to the Judicial organ of the State to do
evenhanded justice to all the citizens of Pakistan in accordance with law. Article 4
provides that it is the right of every individual to be dealt with in accordance with
law. In turn, under Article 5, every citizen is under obligation to remain loyal to the
State. Article 6 has taken full care of person who abrogates or attempts or
conspires to abrogate, subverts or attempts or conspires to subvert the Constitution
by use of force or show of force or by other unconstitutional means. The accused
of such an offence is guilty of high treason and is liable to punishment of death or
imprisonment for life. Under Article 7 in Part 11 of the Constitution, the
expression "State" has been defined. Fundamental Rights available to the people
have been enumerated in Articles 8 to 28 of the Constitution. Principles of Policy
have been mentioned in Articles 29 to 40. The most important office in the
Federation of Pakistan is that of the President who is the head of the State and
represents the unity of the Republic under Article 41 Office of the President has
been dealt with by Articles 41 to 49. Chapter 2 of the Constitution deals with
Majlis-e-Shoora (Parliament) vide Articles 50 to 89. The constitution, powers and
functions of the Federal Government have been mentioned in Articles 90 to 100.
Similarly, Part IV (Chapters 1 to 3) deals with the powers and functions of the
Provinces vide Articles 101 to 140. Part V (Chapters 1 and 2) relates to the
distribution of legislative powers between the Federation and the Provinces
(Articles 141 to 152)- After dealing with the Legislature and the Federal
Government, a specific Chapter has been reserved for the establishment of
Supreme Court of Pakistan the Provincial High Courts and the subordinate Courts
vide Article 175 to 212 It may be noted that previously under Article 212-A, it was
provided that Military Courts would be established. The defunct Article reads as
follows:-
"212-A. (1) Notwithstanding anything hereinbefore contained, the Chief Martial

Law Administrator may, by a Martial Law Order, provide for the establishment of
one or more Military Courts or Tribunals for the trial of offences punishable under
the Martial Law Regulations or Martial Law Orders or any other law, including a
special law, for the time being in force specified in the said Martial Law Order and
for the transfer of cases to such Courts or Tribunals.
(2) The jurisdiction and powers of a Military Court or Tribunal shall be such as
may be specified in a Martial Law Order issued by the Chief Martial Law
Administrator.
(3) Notwithstanding anything hereinbefore contained, where any Military Court or

Tribunal is established, no other Court, including a High Court, shall grant an
injunction, make any order or entertain any proceedings in respect of any matter to
which the jurisdiction of the Military Court or Tribunal extends and of which
cognizance has been taken by, or which has been transferred to, the Military Court
or Tribunal and all proceedings in respect of any such matter which may be
pending before Court, shall abate."
The said Article was omitted by S.R.O. No.1278(1)/85, dated 30-12-1985 read
with proclamation of withdrawal of Martial Law of the same date. In Part X
(Articles 232 to 237) provisions have been made in respect of Proclamation of
Emergency. For the purposes of resolution of the controversy involved in these
proceedings, Part XII, Chapter 2 (Articles 243 to 245) is very important, inasmuch
as, aforesaid Military Courts were established under the provisions of Article 245.
Under Article 243, command of the Armed Forces has been vested with the
Federal Government of Pakistan. It is obligatory on the part of every member of
the Armed Forces to take oath in the form set out in the 3rd Schedule of the
Constitution In Article 245, functions which are to be performed by the Armed
Forces have been mentioned. In order to better appreciate the controversy.
provisions of Article 245 are reproduced:-
"245.--(1) The Armed Forces shall, under the directions of the Federal
Government, defend Pakistan against external aggression or threat of war, and,
subject to law, act in aid of civil power when called upon to do so. .
(2) The validity of any direction issued by the Federal Government under clause
(1) shall not be called in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation
to any area in which the Armed Forces of Pakistan are, for the time being, acting in
aid of civil power in pursuance of Article 245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High
Court in respect of any proceeding pending immediately before the day on which
the Armed Forces start acting in aid of civil power.
(4) Any proceeding in relation to an area referred to in clause (3) instituted on or
after the day the Armed Forces start acting in aid of civil power and pending in any
High Court shall remain suspended for the period during which the Armed Forces
are so acting,"
The above resume of outlines of the Constitution shows beyond doubt that no
provisions have been enacted in the Constitution for the establishment of Military
Courts. The provision which was so made to provide setting up of Military Courts
(vide Article 212-A) was omitted on 13-12-1985 by the Constitution-makers- After
omission of Article 212-A, there is no provision left in the Constitution to give
powers to the Federal Government to set up Military Courts. It is, therefore, so
clear and so manifest that the Federation has tried its best to find out a way for
setting up of such Courts under Article 245 of the Constitution. The interpretation
of this Article, therefore, needs our deeper consideration. We have heard the
learned counsel for the parties for full 17 days and have perused all the material on
record with their assistance to find out the true intent/objective of the abovesaid
Article. The Armed Forces have been created with a mandate to defend Pakistan
under the directions of the Federal Government whenever it is subjected to external
aggression or threat of war. It has also been enacted that subject to law, the Armed
Forces shall act in aid of civil power when they are called upon to do so. Civil
power does not include military power. To further elaborate my view, I would first
refer to the dictionary meaning of the word "civil": which according to the Black's
Law Dictionary is as follows:-
Civil: Of or relating to the state or its citizenry. Relating to private rights and
remedies sought by civil actions as contrasted with criminal proceedings.
The word is derived from the Latin civilis, a citizen. Originally, pertaining or
appropriate to a member of a civitas or free political community; natural or proper
the policy and Government of the citizens and subjects of a State.
In Macmillan English Dictionary by William D. Halsey, the word "Civil" is
defined as under:--
"(1) -Of or relating to a citizen or citizens. 2. Of or relating to the relations between

a Government and its citizens. Civil affairs. 3. Occurring within the boundaries of
a nation or among its citizens; domestic; internal: civil strife. 4. Not Military or
ecclesiastical: a civil wedding ceremony. 5. Coolly polite; courteous. 6. Having
social order and organized Government; civilized u.a. of or in accordance with
civil law: civil Court, civil proceedings. Distinguished from criminal. b. relating to
an individual's rights and to the legal proceedings involving such rights. 8. Of; or
relating to those divisions of time which are recognized as legal standards: The
civil week goes from Sunday to Saturday. (Latin civilis relating to a citizen, polite,
from civis citizen.) "
In Stroud's Judicial Dictionary, the word 'power' has been defined in the following
words:-
"Power: The right, ability, authority, or faculty of doing something. Authority to do

any act which the grant or might himself lawfully perform. Porter v. Household
Finance Corporation of Columbus, D.C Ohio, 385 F. Supp. 336, 341.
A power is an ability on the part of a person to produce a change in a given legal

relation by doing or not doing a given act. Restatement, Second, Agency, SS 6;
Restatement, Property, SS 3.
In a restricted sense a "power" is a liberty or authority reserved by, or limited to, a

person to dispose of real or personal property, for his own benefit, or benefit of
others, or enabling one person to dispose of interest which is vested in another.
Constitutional powers.---The right to take action in respect to a particular subject-
matter or class of matters, involving more or less of discretion, granted by the
Constitution to the several departments or branches of the Government, or reserved
to the people. Powers in this sense are generally classified as legislative, executive,
and judicial (q.v); and further classified as enumerated (or express), implied,
inherent, resulting, or sovereign powers.
Commerce Powers.---Power of Congress to regulate commerce with foreign

nations, and among the several states. Art. 1. SS 8, C1.3, U.S. Constitution.
Enforcement Powers The 13th, 14th, 15th, 19th, 23rd, 24th and 26th Amendments
each contain a section providing, in these or equivalent words, that "Congress shall
have the power to enforce by appropriate legislation, the provisions of this
Article."
Enumerated or express powers.---Powers expressly provided for in Constitution;

e.g., U.S. Constitution, Art-1, SS 8.
Implied powers.---Such as are necessary to make available and carry into effect
those powers which are expressly granted or conferred, and which must, therefore,
be presumed to have been within the intention of the Constitutional or legislative
grant. See Enforcement powers, above; also necessary and proper powers, below;
See also Penumbra doctrine.
Inherent powers. --- Powers which necessarily inhere in the Government by

reason of its role as a Government; e.g. conducting of foreign affairs. United states
v. Curtiss-Wright Export Corporation 299 SS 304, 315, 316, 57 S.Ct.216, 81 L.Ed.
255. See also Supremacy clause.”
In Macmillan English Dictionary by William D., Halsey, the word "Power" is
defined as under:-
"(1) Ability to do or effect something: It is not m his power to help you. 2. Ability
or right to command, control, or make decisions; authority: A struggle for power
took place within the company. 3. Also, powers. Particular mental or physical
ability or faculty: He lost his power of speech, 4. One who or that which possesses
or exercises influence, control, or authority over others. The United States is a
major world power. 5. Political or military strength of a nation. Government, or
similar organization. 6. Legal ability or authority to do or act: The President has
the power to veto bills. 7. Physical strength; force: There was no power behind his
punch. 8. A number of times, indicated by an exponent, that a given number or
algebraic expression is multiplied by itself. The power of 4 is 3. b. product found
by multiplying a number or algerbraic expression by itself a given number or times
as indicated by an exponent. The second power of 5 is 25 since 5 = 5 X 5.9. Energy
or force that can do work, esp. electrical energy. 10. Rate at which work is done or
energy is used. The power of a source is equal to the force exerted, multiplied by
the distance through which it acts, divided by the time during which it acts. 11.
Capacity of a lens or a combination of lenses to magnify the apparent size of an
object. 12. Powers. Member of the sixth of the nine. orders of angels. 13. In
formal. Large number or quantity. ---v.t. to provide with power, esp. mechanical
power.---adj. 1. Operated or driven by a motor or by the energy produced by
electricity, air, water, or steam; a power saw, a powerloom, a power lawn mower.
2. Operating with the assistance of an auxiliary engine-driving system so as to
require less effort: power steering, power brakes. (Anglo-Norman power ability to
act, authority, going back to Latin potis able.)"
It would also be proper to refer to the word 'Act', which according to Black's Law
Dictionary, 5th Edition, at page 24, means:--
"Act" n. Denotes external manifestation of actor's will Restatement. Second, Torts

SS 2. Expression of will or purpose; carries idea of performance; primarily that
which is done or doing; exercise of power; or effect of which power exerted is
cause, a performance; a deed. In its most general sense, this noun signifies
something done voluntarily by a person; the exercise of an. individual's power; an
effect produced in the external world by an exercise of the power of a person
objectively, prompted by intention, and proximately caused by a motion of the
will. In a more technical sense, it means something done voluntarily by a person,
and of such a nature that certain legal consequences attach to it. Thus a grantor
acknowledges the conveyance to be his "act and deed," the terms being
synonymous. It may denote something done by an individual, as a private citizen,
or as an officer, or by a body of men, as a legislature, a council, or a Court of
justice; including not merely physical acts, but also decrees, edicts, laws,
judgments, resolves., awards, and determinations. Some general laws made by the
Congress of the United States are styled joint resolutions, and these have the same
force and effect as those styled acts.
“……………………………………….”
Legislative act.--An alternative name for statutory law. When introduced into the
first house of the Legislature, a piece of proposed legislation is known as a bill
When passed to the next house, it may then be referred to as an act After enactment
the terms "law" and "act" may be used interchangeably. An act has the same
Legislative force as a joint resolution but is technically distinguishable, being of a
different form I and introduced with the words ' Be it enacted' instead of ' Be
resolved'. Acts are either public or private. Public acts (also called general acts, or
general statutes, or statutes at large) are those which relate to the community
generally, or establish a universal rule for the governance of the whole body
politic. Private acts (formerly called special), are those which relate either to
particular persons (personal acts) or to particular places (local acts), or which
operate only upon specified individuals or their private concerns. Unity v. Burage,
103, SS 447, 454, 26 L.Ed. 465. Public acts are those which concern the whole
community and of which Courts of law are bound to take judicial notice. A
'special' or 'private' act is one operating only on particular persons and private
concerns. A 'local act' is one applicable only to a particular part of the legislative
jurisdiction:"
"See also Government act; Legislation; Legislative act; Statute."

Private acts are those made by private persons as registers in relation to their
receipts and expenditures, schedules, acquaintances, and the like.
Public acts are those which have a public authority, and which have been made
before public officers, are authorized by a public seal, have been made public by
the authority of a magistrate, or which have been extracted and been properly
authenticated from public records. .
In the said Dictionary, the word 'Aid' has been defined as follows:--
"Aid. To support, help. assist or strengthen. Act in cooperation with; supplement

the efforts of others. State v. Upton, Iowa. 167 N.W. 2d 625, 628."
Even the abovesaid plain dictionary meanings of the keywords used in Article 245
would not, at all, advance the case of the Federation under the Constitution, the
civilian government is empowered to call upon the military power to act in aid of
civil power as and when a situation calling for such aid has arisen. This exercise of
power has, undoubtedly, been made subject to law. The Code of Criminal
Procedure, 1898 (hereinafter called the Code) provides to Chapter IX, sections 127
to 132-A that Military Force may be summoned for public security and
maintenance of law and order It has been mentioned in proviso to section 131-A
that while using the military force for maintenance of law and order and public
security, the powers of a Magistrate shall not be exercisable by the Military Force.
Such powers shall necessarily include ,judicial powers of a Magistrate. In my view,
expression "subject to law" as mentioned in Article 245 relates to the powers given
to the Governmental Functionaries in Chapter IX of the Code. Under sections 129
and 130. powers have been given to a Magistrate to press into service the aid of the
Armed Forces to disperse unauthorised assembly for the purposes of maintenance
of public order. There is, however, no bar for the Federal Government, to enact
new/more law/laws on the subject. The controversy as to whether or not the
Military Courts can be set up for trial of the civilians is not a new phenomenon,
inasmuch as, earlier too, such controversy arose for its resolution before the Sindh
and Punjab High Courts which considered the controversy in its proper
perspective. Their views about the provisions of Article 245 are also clear,
inasmuch as, they have held that under Article 245, Military Force cannot be
permitted to replace a Civil Court or to assume the powers of Judiciary in the garb
of coming in aid of civil power. It was so held by a Full Bench of Sindh High
Court in Niaz Ahmad .Khan v. Province of Sindh and others (PLD 197'/ Kar.
604):-
"The primary function of Armed Forces under Article 245 is to defend Pakistan
against external aggression or threat of war. The other function of a lesser import is
to act in aid of Civil Power when called upon to do so but subject to law. I have
already stated earlier that the words 'act in aid of has its own connotation namely,
to come to the help or assistance of the Civil. Power and in the present case
expressly for the limited purpose of maintaining law and order and security, in its
narrow sense of aiding in suppression of a riot or tumult actually existing or
preventing one that is threatened so that the Civil Power is enabled to perform its
normal functions. To enable the Armed Forces to performe this limited function
they must of necessity be clothed with Police Powers and to constitute a valid
exercise of such powers it must be neither arbitrary nor, excessive and subject
always to law. The actions of the Armed Forces must be germane only to the
restoration of peace and tranquillity. It will be no answer that a law. permits them
to act in excess of this limited and confined function for no law can enlarge the
functions of the Armed Forces beyond the mandate of the Constitution contained
in Article 245. No law, therefore, can enable the Armed Forces to exceed their
assigned duty under the Constitution and even in relation to a law enabling them to
perform their assigned function of maintenance of law and order and security, any
interference in the citizen's personal freedom or property rights must be justified,
as in the case of Police Powers, by necessity actually existing or reasonably
presumed. The test is whether the interference is necessary in order to perform the
duty of restoring order. To give a specific instance a law may provide or such a
power may be implicit in the performance of the duty cast, for imposition of
curfew, but its exercise must carry the restraint of necessity and reasonableness.
No law can permit or empower the Armed Forces to shoot at site a person who
violates the curfew simpliciter so as to cause his death or bodily harm for such a
grave action must have for its justification imminent and grave public necessity. It
may be that in performance of its duty the Armed Forces in the exercise of Police
Powers not independents of the Civil Authority but the Armed Forces cannot
abrogate, abridge or displace Civil Power of which Judiciary is an important
integral part. The Armed Forces, therefore, can certainly apprehend those who
disturb or threaten to disturb peace and tranquillity but such persons in my humble
view, can only be tried by ordinary Civil Courts which have admittedly not ceased
to function. The argument that Military Tribunals will ensure prompt punishment
as an example for others overlooks the disadvantages of a Military trial and
underestimates the importance of a trial by an ordinary Civil Court who can, if
need be, given directions to give priority for the disposal of the cases arising out of
the present law and order situation. If the political parties or political activities are
not banned in the specified areas, by the Civil Power, both the Public and the Press
have a right, so long as they remain within the bounds of law, to give expression to
their views in a manner recognised by law, for a call to aid the Civil Power does
not operate to suspend civil law or to negate individual rights of person and
property. " (Emphasis supplied).
Similarly, in Darvesh M. Arbey, Advocate v. Federation of Pakistan and others

PLD 1980 Lah. 206, a unanimous view was expressed by the Lahore High Court
which is as under:-
"Even if this aspect of the matter is ignored we feel that is sufficient to note, for the
purpose of the question under consideration. that no nexus whatsoever has been
provided by the amendment in question between the offences made exclusively
triable by the Courts Martial by virtue of this amendment and the object for which
the Armed Forces have been called in the District of Lahore, i.e., to restore or
maintain security and, law and order. The result is that the Armed Forces are now
trying civilians for cases, like the murder of a nurse named Ghazala by her
paramour and other similar cases with which they had no concern whatsoever.
Moreover, even under Common Law of England when the Armed Forces are
called in (under the said law) to quell a disturbance to put down an insurrection or
to control violence they are given powers to try. convict and sentence offenders
only when law and order situation has deteriorated to such an extent that the
ordinary Courts are unable to function. But in the present case when the Courts
were admittedly open and functioning without any hindrance from any section of
the population, the Armed Forces have as a result of this enactment (Act X of
1977) been placed in a position where Courts Martial set up by them have
superseded the ordinary criminal Courts The mere fact that an army officer
authorised in this behalf can transfer a case to the ordinary Court in his discretion
does not improve the status of the ordinary Court, but, in fact, goes to show that
they have been subordinated to the discretion of such an army officer. It is thus
obvious that instead of acting in aid of the civil power the armed forces are acting
in supersession and displacement of the same." (Emphasis supplied).
In the famous case of Mehram Ali v. Federation of Pakistan-PLD 1998 SC 1445, it

has been held by this Court that no parallel Judicial system can be permitted to be
established which is not in consonance with the mandatory provisions of Article
175 of the Constitution. In this case, following observations have been made:-
"From the above case-law the following legal position obtaining in Pakistan
emerges: -
(i) That Articles 175, 202 and 203 of the Constitution provide a framework of
Judiciary i.e. the Supreme Court, a High Court for each Province and such other
Courts as may be established by law.
(ii) That the words 'such other Courts as may be established by law' employed in
clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts
referred to in Article 203 thereof.
(iii) That our Constitution recognises only such specific Tribunal to share
judicial powers with the above Courts, which have been specifically provided by
the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution),
Tribunal under Article 212, Election Tribunals (Article 225). It must follow as a
corollary that .any Court or Tribunal which is not founded on any or the Articles of
the Constitution cannot lawfully share judicial power with the Courts referred to in
Articles 175 and 203 of the Constitution.
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof
the supervision and control over the subordinate judiciary vests in High Courts,
which is exclusive in nature, comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of

Judiciary from the Executive (which is founded on the Islamic Judicial System) in
order to ensure independence' of Judiciary and, therefore, any Court or Tribunal
which is not subject to judicial review and administrative control of the High Court
and/or the Supreme Court does not fit in within the judicial framework of the
Constitution.
(vi) That the right of 'access to justice to all' is a fundamental right, which right
cannot be exercised in the absence of an independent judiciary providing impartial,
fair and just adjudicatory framework i.e. judicial hierarchy. the Courts/Tribunals
which are manned and run by executive authorities without being under the control
and supervision of the High Court in terms of Article 203 of the Constitution can
hardly meet the mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with
the process of appointment of Judges and the security of their tenure and other
terms and conditions. "
In view of the above observations of this Court. in case of Mehram Ali (supra)
there appears to be absolutely no scope or powers left with the Federal
Government to set up Military Courts in the country in place of ordinary Civil
Courts, which have been established under Article 175 of the Constitution. In my
considered view, the establishment of Military Courts for trial of civilians amounts
to. parallel system for all intents and purposes which is wholly contrary to the
known existing judicial system having been set up under the Constitution and the
law. The interpretation of the Constitutional provisions by the Supreme Court is
itself the Constitutional law under Article 189 of the Constitution. This being the
position, the decision of the Supreme Court is binding on all other Courts in
Pakistan. All executive and judicial authority throughout Pakistan have been bound
down under Article 190 of the Constitution to come to its aid in the
implementation of its decision. To bring this controversy to an end, Article 175 has
ordained that there shall be a Supreme Court of Pakistan and a High Court in each
Province and such other Courts as may be established by law. Criminal Courts are
established under the provisions of the Code and other special laws. Reference may
be made to Part II, Chapter II, section 6 of the Code, which reads thus:-
"6: Classes of Criminal Courts.--Besides the High Courts and the Courts
constituted under any law other than this Code for the time being in force, there
shall be five classes of Criminal Courts in Pakistan, namely:-
I. Courts of Session;
II. (Omitted by A.O. 1949);
III. Magistrates of the first class;
IV. Magistrates of the second class;
V. Magistrates of the third class."
The above are the criminal Courts which have been established and are functioning
in Pakistan. There is n o other set of criminal Courts which can be permitted to
operate and function as has been done under the impugned Ordinance XII of 1998.
It is a clear violation of Article 245 of the Constitution itself under which these
Courts have been brought into being. Law laid down in Niaz Ahmad Khan and
Darvesh M. Arbey (supra) is very much illustrative and clear on the controversy.
Similarly, the dictum laid down in Mehram Ali's case (supra) shows that in the
present Constitutional set-up, such Courts cannot be established which are not
subordinate to the High Courts/Supreme Court. In other words, well-established
view has been reiterated in these cases while giving the declaration to the
petitioners that setting up of Military Courts by the Federation. of Pakistan is
beyond the limits of the Constitution and the law. Needless to say that the
establishment of Military Courts is the necessary corolly/result of imposition of
Martial Law and in its absence, Military Courts cannot be conceived to be set up in
a Constitutional rule. In such a situation, the arguments advanced on behalf of the
Federation are liable to be discarded being devoid of force.
During his arguments, learned Attorney-General has forcefully submitted that

under the present judicial set-up, justice is always delayed. Thousands of cases are
piled up and there is no hope of their hearing and disposal within reasonable time.
In this background, it is useful to disclose the latest facts and figures of the pending
cases before different Courts of Pakistan. The detail is as follows:-
LIST OF PENDING CASES IN THE SUPREME COURT:
Name of station Petitions Appeals Total
Islamabad 1138 2557 3695
Lahore 1522 Nil 1522
Karachi 197 30 227
Peshawar 265 Nil 265
Quetta 375 18 393
Total: 3497 2605 6102

LIST OF PENDING CASES IN THE LAHORE HIGH COURT:
Category Principal Bahawalpur Multan Rawalpindi Total
of cases seat Bench BenchBench
LPA/ICA 3801 75 205 114 4195
RFA 1910 460 855 1166 4391
RSA 1453 385 1084 480 3402
FAO 591 153 372 165 1281
SAO 198 23 64 18 303
CR 8235 3099 5620 2464 19418
WP 7679 2210 6493 3058 19440
WP(Sett.) 958 57 226 148 1389
C. T. A. - 14 - - 14
E. R: - - - 8 8
R. A. 491 29 27 18 565
T. A. 860 - 190 3 1055
P. T. R. 283 1 - - 284
T.R. 7 - 2 4 13
Ex.A. 53 1 - 1 55
Crl.A.S: - 74 - - 74
C(T)
C.O. 688 - - 55 743
C.Referene 1075 - - - 1075
C. 0. S. (B) 104 7 4 64 219
LA/LR - - - 34 34
P.L.A.(B) 02 - - 12 14
C.O.C. - - - 62 62
PSLA 53 3 43 8 109
M.R. 1291 79 32 12 1374
Cr.A. 5630 667 1360 1087 8744
Cr.Review 621 195 454 381 1651
Cr.Misc. 1545 126 427 522 2620
Cr.Mis.(Q) 77 81 - 13 171
Criminal original 4208 40 415 140 4803
S.A./S.R. - - - 92 92
E.P. - - - 1 1
C.T.R. 12 - - - 12
Cross-objection14- - - - 14
I.T.A. 238 10 - - 248
C.M.(V) 78 - - - 78
E.F.A. 2 - - 11 13
C.A. 18 - - 8 26
Custom Appeal 55 - - - 55
C.M.(Ind.) - - - 19 19
____________________________________________________________
Total: 42282 7789 17915 10168 78154
____________________________________________________________
LIST OF PENDING CASES IN THE HIGH COURT OF SINDH KARACHI:
Appellate side 11746
Original side 9553
Total: 21299
Sukkur Bench 2420
Circuit Court 2903
Hyderabad
Circuit Court
Larkana 502
Grand Total:27124
LIST OF PENDING CASES IN THE PESHAWAR HIGH COURT PESHAWAR:
S.No. Category Number of cases
1. Death appeals. D.B. 68
2. Murder References D.B. 68
3. L/Imprisonment D.B. 196
4. Criminal Appeals S.B. 111
5. Criminal Appeal Spl. Laws D.B. 29
6. Cr.A. Contempt D.B. 1
7. Cr.A. QDO D.B. 6
8. State Appeals 208
9. State Appeals 434
10. Criminal Revisions 105

11. Criminal Revisions 110
12. R.F.A. 90
13. R.F.A. 299
14. R.S.A. 9
15. R.S.A. 6
16. F.A.0. 105
17. F.A.O. 335
18. S.A.O. 9
19. S.A.O. 1
20. I.C.A. 4
21. F.A. Election 1
22. F.A.B. 177
23. Cross Objections in F.A.B. 1
24. Cross Objections in R.F.A. 8
25. C.R. 1473
26. C.R. 50
27. Rehb. W.P. 2
28. Service S.P. 692
29. Others W.P. 2042
30. Election W.P. 1
31. Company Cases . 39

32. Tax References 193
33. Org. Suit Bank 31
34. Obj. Petitions 1
35. Ex. Petitions 10
36. Review in F.A.O. 2
37. Criminal Miscellaneous 751
38. Criminal Miscellaneous 56
39. C.M. in Ref. 13
40. C.M. In Orig. suits 15
41. Civil Miscellaneous 328
42. Civil Miscellaneous 4130
Total: 12210
Abbottabad Bench 1681
D.I. Khan Bench . . 1043
Total 14934
LIST OF PENDING CASES IN THE HIGH COURT OF BALOCHISTAN

QUETTA:
D.B.APPEALS/ S.B. APPEALS/ TOTAL
PETITIONS PETITIONS
308 328 636
STATEMENT SHOWING LATEST PENDENCY OF THE CIVIL CASES IN

THE PROVINCE OF PUNJAB:
S.No. Name of District Number of cases vending
1. Attock 3651
Fateh Jang 867
Jand 804
Pindi Gheb 686
Bahawalnagar 4293
Chishtian 1146
Minchinabad 1355
Haroonabad 1127
Fortabbas 745
3. Bahawalpur 7523
Ahmadpur East 4235
Yazman 559
Khai ur Tamewali 789

Hasilpur 1187
4. Bhakkar 4973
Kaloorkot 444
Mankera 408
5. Chakwal 5134
Tallagang 2284
6. D.G. Khan 3783
Taunsa Shairf 1894
7. Fasialabad 18070
Sumundari 1712
Tandlianwala 1726
Jaranwala 2496
8. Gujranwala 10476
Wazirabad 2365
9. Gujrat , 4250
Kharian 2206
10. Hafizabad 1573
Pindi Bhatian 1215
11. Islamabad 5465
12. Jhang 6720

Chiniot 3515
Shorkot 1715
13. Jhelum 2639
Pinddadankhan 1772
Sohawa 651
14. Kasur 5307
Chunian 2825
Pattoki 1749
15. Khushab 3753
Noorpur Camp at Jauharabad 271
16. Khanewal 4489
Kabirwala 1525
Mian Channun 1798
17. Lahore 43683
18. Layyah 4295
Karor 1208
19. Lodhran 2602
Duniapur 745
Karor Pacca 1541
20. Mianwali 4239
Eisa Khel 334

21. Multan 15036
Jalalpur Peerwala 1300
Shujaabad 1473
22. Muzaffargarh 6865
Alipur 3635
Kot Addn 1417
23. Mazdi Baha-ud-Din 4420
Malakwal 1266
Phalia 3595
24. Narowal 2442
Shakargarh 2503
25. Okara 10713
Depalpur 10984
26. Pakpattan Sharif 4364
Arifwala 2003
27. Rahimyarkhan 8243
Sadiqabad 1582
Khanpur 3874
Liaqatpur 2940
28. Rajanpur 2217
Jampur 2132
29. Rawalpindi 17290
Gujjar Khan 4507
Kahuta 2360
Murree 917
Taxila 1571
Kotli Sattian 681
30. Sahiwal 7801
Chichawatni 2547
31. Sargodha 9978
Bhalwal 2504
Shahpur 783
32. ShOkhiipurc 7207
Ferozewal 2886
Nankana Sahib 2338
33. Sialkot 604
Daska 2990
Pasrur 2286
34. Toba Tek Singh 3130
Kamalia 1635
Gojra 1405
35. Vehari 6696

Burewala 4386
Mailsi 4654
G. Total: 3,87,204
STATEMENT SHOWING LATEST PENDENCY OF THE CRIMINAL CASES

DISTRICT-WISE IN THE PROVINCE OF PUNJAB:
S.No. Name of District Number of cases pending
1. Attock 2159
Fateh Jang 544
Jand 1009
Pindi Gheb 300
2. Bahawalpur 2140
Chisthtian 2562
Minchinabad 1621
Haroonabad 1541
Fortabbas 817
3. Bahawalpur 3416
Ahmadpur East 1317
Yazman -
Khairpur Tamewali 2037
Hasilpur 1159
4. Bhakkar 1066
Kaloorkot 484
Mankera 313
5. Chakwal 2483
Tallagang 351
6. D.G. Khan 10770
Taunsa Shairf 759
7. Faisalabad 14661
Sumundari , 1755
Tandlianwala 3942
Jaranwala 7399
8. Gujranwala 14754
Wazirabad 3558
9 Gujrat 3430
Kharian 2992
10 Hafizabad 3603
Pindi Bhatian 2562
11 Islamabad 2532
12 Jhang 4139
Chiniot 2788
Shorkot 4166
13 Jhelum 2191
Pinddadankhan -
Sohawa 211
14. Kasur 5113
Chunian 1879
Pattoki 3862
15. Khushab 1439
Noorpur Thal 234
16 Khanewal 3348
Kabirwala 2509
Mian Channun 3173
17. Lahore 5873
Cantt. 3688
Model Town 3570
District Courts 860
18. Layyah 2303
Karor 805
19. Lodhran 1660
Duniapur 1328
Karor Pacca 1619
20 Mianwali 4912
Eisa Khel -
21 Multan 9653
Jalalpur Peerwala 1141
Shujaabad 905
22 Muzaffargarh 2994
Alipur 1942
Kot Addu 1822
23 Mandi Baha-ud-Din 1720
Malakwal 1389
Phalia 1282
24. Narowal 3249
Shakargarh 1821
25. Okara 6157
Depalpur 5236
26. Pakpattan Sharif 2536
Arifwala 3050
27. Rahimyarkhan 4530
Sadiqabad 2490
Khanpur 3072
Liaqatpur 1543
28. Rajanpur 3669
Jampur 3081
29. Rawalpindi 5507
Gujjar Khan 482
Kahuta 709
Murree 582
Taxila 504
Koth Sattian -
30. Sahiwal 5994
Chichawatni 2782
31. Sargodha 3405
Bhalwal 2922
Shahpur 789
32. Sheikhupura 9775
Ferozewala 7550
Nankana Sahib 7194
33. Sialkot 5350
Daska 2187
Pasrur 2151
34. Toba Tek Singh 4128

Kamalia 866
Gojra 314
35. Vehari 2782
Burewala 1899
Mailsi 1800
G. Total: 293373
CONSOLIDATED STATEMENT SHOWING THE DISTRICT-WISE

PENDENCY OF CRIMINAL AND CIVIL CASES BEFORE THE DISTRICT
AND SUBORDINATES IN SINDH AS ON 31-3-1999:
S.No. Name of the District Pendency Civil Total
Criminal
1. Judge Small Causes Court: - 284 284
2. Karachi (South) 5932 8773 14705
3. Karachi (West) 4896 3457 8353
4. Karachi (East) 5634 5618 11252
5. Karachi (Central) 4790 4848 9638
6. Maleer 3569 796 4365
7. Hyderabad 4803 4735 9538
8. Thatha 756 676 1432

9. Badeen 976 1063 2039
10. Dadu 335 1419 1754
11. Mithii 105 98 203
12. Umar Kot 497 419 916
13. Mirpur Khas 1101 932 2033
14. Sangarh 1669 1219 2888
15. Naushehro Feroz 1336 1281 2617
16. Nawabshah 1235 1209 2444
17. Sukkur 2414 1441 3855
18. Khairpur 2940 1303 4243
19. Ghotki 2577 1159 3736
20. Larkana 6649 2062 8711
21. Shakarpur 2680 745 3425
22. Jacobbabad 3598 564 4162
Total: 61492 44101 105593
STATIONWISE PENDENCY OF THE CIVIL COURTS IN THE PROVINCE OF

N.-W.F.P.
S.No. Name of the District Pendency
1. Peshawar 15089
2. Naushehra 2123
3. Charsadda 3981
4. Mardan 7755
5. Swabi 4814
6. Malakand 1172
7. Swat 6507
8. Shangla 695
9. Timergara 2471
10. Burner 1797
11. Chitral 1846

12. D. I. Khan 8524
13. Tankcarmp Court 765
14. Bannu 2941
15. Lakhi 2845
16. Kohat 5033
17. Karak 2723
18. Haripur 6421
19. Abbottabad 7480
20. Mansehra 5745
21. Batgram 1021
22. Kohistan 114

Total: 92067
STATIONWISE PENDENCY THE COURTS OF SESSIONS IN THE

PROVINCE OF N.-W.F.P.
S. No. Name of the District Pendency
1. Peshawar 2751
Naushehra 1205
3. Charsadda 1663
4. Mardan 907
5. Swabi 600
6. Malakand 234
7. Swat 1884
8. Shangla 247
9. Timergara 1459
10. Burner at Daggar 294
11. Chitral 241
12. D . I . Khan 1261
13. Tankcarmp Court 242
14. Bannu 676
15. Lakhi 615

16. Kohat 1524
17. Karak 637
18. Haripur 1163
19. Abbottabad 588
20. Mansehra 972
21. Batgram 85
22. Kohistan as Dasu 106
Syed Kabul Shal'
Total: 19354
TOTAL PENDENCY DISTRICT-WISE IN THE SUBORDIANTE

JUDICIARY OF BALOCHISTAN PROVINCE:
S.No. Name of the District Pendency
1. Quetta 2295.
2. Khuzdar 214
3. Usta Muhammad 88
4. Kallat 149
5. Hub 285
6. Nasirabad at Dera
Murad Jamali 343

7. Dera Allah Yar 292
8. Sibbi 646
9. Loralai 333
10. Zhob 61
11. Pishin 433
12. Nushki 107
13. Kharan 156
14. Turbat 423
Grand Total:5825
The total of all kinds of cases from this Court to the lowest level is 10,30,366 (ten
lac thirty thousand three hundred and sixty-six) The above-quoted latest authentic
figures of pending cases are not only horrible and alarming but painful as well. In
other words, submission of the Attorney-General had to be -seen in the light of the
abovequoted pending case. He wanted/wished that the cases might be speedily and
quickly decided to provide a deterrent to the criminals. This is, undoubtedly, a
noble desire having been expressed by the principal Law Officer. of the State.
People may loose confidence in the State institutions if they are deprived of justice
or justice is not provided to them within reasonable time. If the remedial measures
are not immediately adopted, the most important judicial organ of the State may be
feared to collapse which, in turn, may create confusion and lawlessness
everywhere. The total strength of the judiciary from this Court to the lowest level
comes to 1754. This strength of the judiciary may not be sufficient to
overcome/control the judicial crisis being faced by Pakistan. In this scenario, in my
considered view, answer to this most important question lies in the .substantial
increase in the existing judicial strength without which, backlog of cases cannot be
cleared and on the contrary, it may increase without having any control on it. The
sanctioned strength of the judiciary may, therefore, be doubled to effectively meet
the judicial crisis in the country. The Hon'ble Chief Justice of Pakistan and the
Government may consider the above observation.
Apart from the above, the working conditions in the subordinate judiciary have to
be changed and made favourable to the Judges because these are also hurdles in the
speedy disposal of the cases. They have, undoubtedly, been working with untold
difficulties. To say the least, they have no transport to reach their Courts and
homes. It is sad to say that sometimes the Judges and the criminals against whom
they are holding trial, travel together. Some of them have no accommodation
facilities. Their pay scales are such with which it is difficult for them to live with
dignity. On 23-4-1994, I (as I then was) alongwith two other Hon'ble Judges of the
Lahore High Court, in response to an invitation, visited the Islamabad District Bar
Association. At the request of the then President of the Bar, we went and saw a
Court room of hardly 20' x 20' which was shared by two Honourable Judges of the
subordinate judiciary. This Court room was partitioned by a simple cloth curtain.
The Judges complained that it was impossible for them to hear and decide cases
with devotion and peace of mind because of perpetual disturbance to both of them.
On another occasion, on 12-3-1999, at Chief Justice's House, Lahore High Court,
Lahore a Special Judge before several other Judges disclosed that he was working
without a stenotypist for the last 6 months and performing his duties by borrowing
the services of steno-typist. These two incidents are enough to tell the pathetic tale
of the subordinate judiciary in its proper perspective. Despite the above, the
subordinate judiciary is still doing the crusade and is administering justice with
punctuality and devotion.
Keeping in view the above position, it is advantageous to quote Letter No.53 which
was sent by Caliph Ali to the Governor of Egypt about administration of justice
and the relief package to be provided to the members of the Islamic Judicial set up
as contained in the 1st Edition of "Nihjat-ul-Baligha" by Allama Syed Sharif which
is itself illustrative, clear and needs' no further elaboration:-
The summary of the above note is:-
(1) Under Articles 175 and 203 etc. of the Constitution and the law, no Courts
other than Supreme Court of Pakistan Provincial High Courts and the Civil and
Criminal Courts established thereunder can be set up in Pakistan to administer civil
as well as criminal justice.
(2) On omission of Article 212-A from the Constitution, intention of the

Constitution-makers becomes clear that Military Courts cannot be set up under the
present judicial system, inasmuch as, there are no Constitutional provisions or the
law to do so.
(3) The rule laid down by this Court in Mehram Ali's case (supra) clinches the
controversy once for all. In violation of the above law, no Courts which may
amount to parallel judicial system can be permitted to be established in Pakistan.
(4) The present strength of the judiciary, if it is so advised, may be doubled

including the subordinate judiciary. This may be done by stages. There may be a
sanctioned strength of 32 Judges in the Supreme Court of Pakistan. Reference in
this behalf may be made to Article 176 of the Constitution. The above strength in
the apex Court may be necessary because in the near future thousands of new cases
may come for disposal in the Supreme Court, especially, when the above heavy
backlog in the High Courts of Pakistan is decided/disposed of on war footing. As
an immediate measure, Ad-hoc Judges in the Supreme Court may be appointed
under Article 182 of the Constitution, of course, in consonance with the rule laid
down in AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 to clear the
backlog. Present strength in Lahore High Court is 50. It should be increased to 100.
Increase in other Provincial High Courts as well as in the subordinate judiciary
should also be made according to the above ratio and also keeping in view the
actual necessity of the work load. Men and money may be the crying need of the
time for the judiciary of Pakistan. (Emphasis supplied).
(
Sd.)
RAJA AFRASIAB
KHAN, JUDGE.
MUNAWAR AHMED MIRZA, J.---I had advantage of going through judgment
proposed to be delivered by Hon'ble Chief Justice. I agree with lucid and
comprehensive reasoning contained therein. However, as regards observations in
para. 45 of said judgment I am prompted to add a brief note.
Our Constitution guarantees fundamental rights and is based on federal democratic

system envisaging trichotomy of powers. Superior Judiciary obviously is obligated
to perform role of interpretation and application of the Constitution and Law,
besides ensuring enforcement of fundamental rights. However, in this background
it becomes necessary to appropriately visualize true import of the independence of
Judiciary. The stature of Judiciary and its independence from executive enshrined
in the Constitution has been duly clarified by various judgments of this Court
namely:-
(i) PLD 1993 SC 341 (Government of Balochistan v. Azizullah Memon).
(ii) PLD 1994 SC 105 (Government of Sindh v. Sharaf Faridi).
(iii) PLD 1998 SC 161 (Asad Ali v. Federation of Pakistan).
(iv) PLD 1998 SC 1445 (Mehram Ali v. Federation of Pakistan).
(v) PLD 1996 SC 324 (Al-Jehad Trust v. Federation of Pakistan).

It may be seen that independence of Judiciary and its separation from Executive as
mandated by the Constitution does not make its authority absolute but require its
regulation within the four corners of laws, rules and procedure. Its normal
functioning should be transparent and inspire confidence amongst general public. It
is bound to exercise jurisdiction and authority within the prescribed domain so that
it remains self-accountable. Superior judiciary enjoins authority and powers under
the law and Constitution, to control and supervise working of entire subordinate
Courts functioning within respective Provinces. It is essential to notice that
subordinate Courts should not be merely open and working but must necessarily
perform functions with efficacy and effectiveness by adhering to prescribed norms
and carry out duties circumscribed by relevant laws, Rules and Procedure. In the
same way respective High Courts are obligated to control and supervise working of
subordinate forums with complete vigilance and continue issuing necessary
instructions to improve its working capabilities for smooth and speedy
administration of justice.
It may be mentioned here that Criminal Courts function under Criminal Procedure
Code and are regulated by Volume III of the Rules and Orders of Lahore High
Court as adopted by other Provincial High Courts (hereinafter referred as 'Rules').
It provides broad details relating to procedure and precautions which Presiding
Officers must adopt for conducting criminal matters. It is expected that a
Magistrate or Criminal Court should be firmly vigilant, while granting remands
and give priority to custody cases to ensure its speedy disposal as contemplated
under Chapter 1-A of Volume 3 of 'Rules'. At the time of remand requirements of
sections 61, 167 and 344 of Cr.P.C. coupled with Chapter 11-B of 'Rules' be kept
in view. Whereas for conducting Sessions trials, instructions/directives contained
in Chapter 24 of the above 'Rules' with particular reference to Rules 4, 8 and 27 to
32 of Chapter 24-B are relevant, which impose an obligation both upon the trial
Court and the controlling authority for vigilantly pursuing the basic object and real
spirit of ensuring fair and expeditious disposal of Sessions cases covering heinous
offences. Delays caused in the disposal of criminal matters on the pretext of heavy
work, not only contravene the 'Rules' but needs condemnation.
Delay occasioning in disposal of cases, can be attributed to various circumstances

such as; (i) Casual remands; (ii) Delay in submission of challan; (iii) Failure of
process-server agencies or prosecution to produce witnesses; (iv) Frequent
adjournments by trial Courts at the request of either prosecutor or defence counsel,
and (v) Unnecessary postponement by the Court for want of time or pre-
occupation. All these factors are adversely eroding the image of judicial system if
general perception; therefore, it calls for extraordinary measures, whereby control
and supervisions by the authorities empowered under the Constitution and Laws,
be exercised in effective manner. It also requires proper Court Management to
dispel fast degenerating and adverse impressions about working of subordinate
judicial forums. Needless to observe that if Courts follow proper vigilance and
procedure for granting remand and prevail upon prosecution or process-serving
agencies to produce witnesses, abstain from granting unnecessary adjournments
which are normally not conceived in Sessions trial and perform functions and
duties with dedication; the bottlenecks can be checked, and situation can
considerably improve. It is high time, when after combating on Constitutional
pedestal for the independence of Judiciary, the judicial system should be preserved
by shedding away casual attitude, to ensure speedy redress and fair justice.
(Sd.)
MUNAWAR
AHMED MIRZA, J
M.B.A./L-13/S Order
accordingly

Liaquat Hussain - PLD 1999 SC 504

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P L D 1999 Supreme Court 504

Present: Ajmal Mian, C. J., Saiduzzaman Siddiqui,

Irshad Hasan Khan, Raja Afrasiab Khan,

Muhammad Bashir Jehangiri, Nasir Aslam Zahid,

Munawar Ahmed Mirza, Mamoon Kazi and

Abdur Rehman Khan, JJ

Sh. LIAQUAT HUSSAIN and others---Petitioners

FEDERATION OF PAKISTAN through Ministry of

Law, Justice and Parliamentary Affairs,

Islamabad and others---Respondents

Constitutional Petitions Nos.37, 38, 42 and 43 of 1998 and No.4 of

(a) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 6 & Sched.---Anti-Terrorism Act (XXVII of 1997),

Pakistan Armed Forces (Acting in Aid of the Civil Power)

The following guidelines were provided by the Supreme Court in

(ii) One case be assigned at a time to a Special Court and till

(iv) Challan of a case should be submitted to a Special Court after

(v) An appeal arising out of an order/judgment of the Special Court

(vi) Any lapse on the part of the investigating and prosecuting

(ix) That besides invoking aid of the Armed Forces in terms of

Per Ajmal Mian, C.J., Saiduzzaman Siddiqui, Irshad Hasan Khan,

(b) Pakistan Armed Forces (Acting in Aid of the Civil Power)

---Preamble -Salient features of the Ordinance stated.

(c) Constitution of Pakistan (1973)-

----Arts. 175 & 203---Pakistan Armed Forces (Acting in Aid of the

Constitution recognises only such specific Tribunals to share

Mehram Ali and others v. Federation of Pakistan PLD 1998 SC

(d) Constitution of Pakistan (1973)---

----Art. 245---Provision of Art. 245 of the Constitution of Pakistan

(e) Constitution of Pakistan (1973)---

(i) The scope and purpose of Article 245 is restricted, namely, it is

(iv) in case of invocation of Article 245 of the Constitution the

(ix) to enable the Armed Forces to perform their aforesaid limited

(xi) Article 245 of the Constitution cannot be invoked by a political

(xii) the language employed in Article 245 of the Constitution as

Naga People's Movement of Human Rights v. Union of India AIR

(f) Constitution of Pakistan (1973)---

----Art. 245---Pakistan Armed Forces (Acting in Aid of the Civil

Word "act" inter alia means exercise of power or effect of which

The expression that "subject to law" used in clause (1) of Article

Article 190 of the Constitution has also employed the expression

(g) Constitution of Pakistan (1973)

----Art.245---Pakistan Armed Forces (Acting in Aid of the Civil

(h) Constitution of Pakistan (1973)---

----Art. 245---Armed Forces called in aid of civil power---Power of

Besides the laws which are in the field, the Legislature is

So long as the Parliament acts within the parameters of the

----Arts. 184(3) & 199---Vires of legislation---Law if validly

Federation of Pakistan and another v. Malik Ghulam Mus_tafa

(j) Pakistan Armed Forces (Acting in Aid of the Civil Power)

----S. 3---Constitution of Pakistan (1973),. Art.245---Convening of

(k) Constitution of Pakistan (1973)---

----Art. 6---High treason---Doctrine of necessity---Invocation---

----Art. 237---Imposition of Martial Law in connection with the

Constitution of the Islamic Republic of Pakistan, 1973, does not

The Parliament cannot make any law indemnifying any person in

The imposition of Martial Law in connection with the maintenance

(m) Constitution of Pakistan (1973)---

----Art. 245---Armed Forces called in aid of civil power---Marked

(n) Constitution of Pakistan (1973)---

----Art. 245---Pakistan Armed Forces (Acting in Aid of the Civil

Mehram Ali and others v. Federation of Pakistan PLD 1998 SC

----S. 3---Constitution of Pakistan (1973), Arts. 245, 9, 25, 175 &