State v.

Dosso (PLD 1958 SC (Pak) 533

Preliminary Note:
in case of State v. Dosso (PLD 1958 SC (Pak) 533) Supreme Court validated the imposition
of martial law by invoking the Kelsenian theory and held that,

“a victorious revolution was itself a law creating fact.”

Although the application of Kelsenian theory in the facts and circumstances of that case
has been subject of critical comment but the positive aspect of the judgment was that it
unequivocally declared that “the country would continue to be governed as nearly as
possible under the Constitution”. which stood abrogated in the case of Province of East
Pakistan v. Muhammad Mehdi Ali Khan (PLD 1959 SC 387).

Facts which leaded to State V, Dosso case 1958:

Following interesting events led toward the Dosso case.

I- End of 1956 constitution.

II- Dissolution of the central legislature.

III- Dissolution of the central cabinet.

IV- Dissolution of Provincial legislature

V- Dissolution of Provincial Cabinet.

VI- Imposition of Martial Law by Muhammad Ayub Khan.

VII- Control of legislative functions by Chief Martial Law administrator.

VIII- Control of Administrative powers by Chief Martial Law administrator.

IX- Promulgation of Law (Continuance in force) Order 1958.

Writ in High Court:

A writ was filed by the petitioner in the High Court. Two writs were demanded to
be issued which were writ of Certiorari and writ of Mandamus. The petitioners
also questioned regarding the validity of the Frontier Crimes Regulations.

The High Court issued the writs in the favour of petitioners.

Appeal to Federal Court:

The Government which was not satisfied with the decision of the High Court, filed
an appeal before the federal court.

Judges:
I- Muhammad Munir C.J.,

II- M. Shahabuddin. J.

III- A.R. Cornelius. J.

IV- Amiruddin Ahmad. J.

Bfrief Facts:
Martial Law was imposed in 1956, it annuled the constitution of 1956, and dismissed the
Central and Provincial cabinets. By Imposition of martial law, the entire legislatuve and
administrative mechinary was took over by Chief Martial Law Administrative, and an
order known as The Laws (Continuance in Force) Order, 1958, was promulgated.

Effect of Laws (Continuance in Force) Order, 1958:

The effect of this order was,

I- The validation of laws other than the Constitution of 1956.

II- Assumption of authority by the Martial Law Administration

III- Resturation of the jurisdiction of all the courts

The point involved in appeal:
Whether National legal order depends upon new law creating authority or victorious
revolution, for its validity.

Decision:
I It was held that, a victorious revolution or a successful coup, is an
internationally recognized legal method of changing a constitution and
that, after a change of that character, the National Legal order, depends
upon the new law creating order, for its validity.

II- It was also held that, even courts can funtion only, in the manner
determined by the new Constitution.

III- It was also held that, if the territory and the people remain substantially the
same, then the corpus of the international entity of the State does not
change.

IV- Where revolution is successful, it satisfies the test of afficacy and becomes
a basic law creating fact.

kelsen's theory of law:

The theory of Doctrine of Necessity originated with one of the great legal theorists of the 20th
century, Hans Kelsen (1881-1973), in his classical study Theory of Law and State “a successful
revolution is a law-creating fact”

Doctrine of Necessity:
Doctrine of Necessity means that, which otherwise is not lawful, necessity makes it lawful.