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Petitioner: NAZEER AHMED VS Respondent: LT: COL. ABBAS ALI KHAN. PRESIDENT, SPECIAL MILITARY
Court Name: Sindh High Court Judge(s): Agha Ali Haider, S. A. Nusrat Title: NAZEER AHMED vs LT: COL. ABBAS ALI KHAN. PRESIDENT, SPECIAL MILITARY Case No.: Constitutional Petition No. 440 of 1978 Date of Judgment:1978-05-20 Reported As: PLD 1978 Karachi 777 Result: Petition dismissed
JUDGMENT
JUDGMENT AGHA ALI HYDER, ACTG. C. J.-The circumstances in which this petition has been filed, very succinctly stated, are as under. 2. On the 20th of January 1978 at about 9-45 a.m. Fokker PK-543 with 42 persons on board, including the members of the crew, took off from Sukkur en route to Karachi. Within moments of its being air-borne, there was a pendemonium in the cabin. Captain Khaldoom Ghani, the pilot, turned back to see what it was about. He heard a shot fired, and the petitioner demanding that the plane be diverted to India. The pilot found that the petitioner had planted a dynamite on the front door, and some wires attached to the dynamite were connected inside his bag, slung in his shoulder. According to the First Information Report, the pilot set the course of the plane, as directed, but, after a while, pleading insufficiency of petrol, prevailed upon the petitioner to land the plane within the country. The petitioner, though reluctantly, gave in, but kept a watchful eye on the crew and the passengers. When the plane eventually landed at Karachi, the petitioner asked the pilot to communicate his demand to the Authorities. The demand made was for the payment of ten millions in local currency, and one million dollars, otherwise the plane, with all its passengers was to be blown off. Parleys started with Air Martial Nur Khan, the Chairman of the P. I. A. However, during the negotiations, some of the passengers, who had been detained as hostages, were freed, and allowed to move out. At about 11-45 p.m. Air Marshal Nur Khan again turned up for further negotiations, and was permitted to come inside the plane. Seeing that the demands were not being honoured, this time the petitioner adopted a menacing posture, and would not allow Air Marshal Nur Khan to go out. Sensing peril to his life, Air Marshal Nur Khan caught the hands of the
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petitioner, in which he was holding a revolver, and Captain Khaldoom Ghani pounced upon from the rear. During the scuffle, the petitioner fired a shot at the Air Marshal, but soon he was overpowered and disarmed. The wire was also pulled from the bag. The petitioner was taken in custody. 3. In the morning at about 9-00 a.m. Captain Khaldoom Ghani lodged the First Information Report of the incident with the Deputy Director, Crime Circle, and the case came to be registered against the petitioner for offence under sections 307, 347 a d 387, P. P. C. 4. On the 25th of January 1978, the Chief Martial Law Administrator promulgated Martial Law Regulation No. 29, which made hijacking an offence. It reads as under; "(1) This Martial Law Regulation shall come into force at once and shall be deemed to have taken effect on the fifth day of July 1977. (2) Whoever commits or attempts to commit or conspires to commit the offence of hijacking or abets the commission thereof, shall be punished with death or such lesser punishment or combination of punishments as are provided for in Martial Law Order No. 5. Explanation.-The expression `hijacking' shall mean taking over the control of any aircraft on ground, or in the air, by use of force, or show of force, or threat to use force, or threat to cause injury, or by causing injury to the aircraft, or any passenger or any member of the crew of the aircraft, or any person connected with the security or main--tenance of the aircraft, on ground or in the air." 5. A charge-sheet was later presented on 2-2-1978, and the trial was set for 6-2-1978 before the Special Military Court No. 10 at Karachi for offence referred to earlier, with the addition of an offence under Martial Law Regulation No. 29. However, as it transpired during the investigation, that the petitioner was a deserter from the Army, he was produced before the Summary Military Court at Quetta, where he was tried for offences under sections 37 (h) and 45 (a) of the Pakistan Army Act, and sentenced to undergo R. I. For one year. He was also ordered to be dismissed from service. Thereafter he was brought back to Karachi, and on the 3rd of March 1978, the trial only for an offence under M. L. R. 29 started before the Special Military Court. The trial lasted for two days and the petitioner was found guilty. After due confirmation he was sentenced to be hanged by the neck till he be dead, culminating in this petition. 6. As questions of considerable magnitude, including the retroactive application of Martial Law Regulation No. 29 were involved, we thought it in the fitness of things to associate some senior members of the Bar in formulating our opinions. As a result Messrs A.I Ahmed Fazeel, Khalid M. Ishaq, Muhammad A.I Sayeed, Naseem Farooqui and Muhammad Hayat Junejo were called upon to assist the Court as amici curiae, and we had the benefit of their addresses. 7. It is beyond the pale of any controversy that the offence of hijacking was brought on the statute book, for the first time, on the 25th of January 1978, in the shape of Martial Law Regulation No. 29. This was overdue, as Pakistan was a signatory to the Convention for the suppression of unlawful seizure of Aircraft (called Hague Convention), which was signed by over a hundred countries of the world on the 16th of December 1970, and also of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (called Montreal Convention, signed on the 23rd of September 1971). Pakistan had ratified the former on the 28th of November 1973, and the latter on the 21th of January 1974. The Hague Convention had sixteen articles in all. Article 1 thereof reads as under;-- Any person commits an offence if he unlawfully and intentionally---- (a) performs an act of violence against a person on board Aircraft in flight, if that is likely to endanger the safety of that aircraft ; (b) destroys an aircraft in service or causes danger to such an aircraft which renders it incapable of flight and which is likely to endanger its safety in flight ;
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(c) places or causes to be placed on an aircraft in service by means whatsoever any device or substance, which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, of to cause damage to it, which is likely to endanger its safety in flight, or (d) destroys or damages aircraft navigation facilities or interferes with their operation ; if any such act is likely to endanger the safety of aircraft in flight ; and (e) communicates an information which is known to be false, thereby endangering the aircraft." The second article dealt with attempts and accomplices, and Article 3 stipulated that each contracting State undertakes to make the offence men--tioned in Article 1, punishable with severe penalties. 8. These conventions were called, because aerial hijacking or piracy after 1961, had no more remained an occasional romantic adventure, but a peril staring in the face of every aviation Company, and their passengers. Searching of persons and baggage, electronic devices for detection, like magnometers before embarkation, the employment of security guards in the course of flight, arming the flight crew, locking the cockpit door, fencing and guarding embarkation gates, special code for pilots to signal ground control, depressurising the cabin, where the hijacker could be manoeuvred, bullet proof cockpit areas, or stationing police dogs in the cabins and other devices had been tried and found wanting. Later events disclosed that there was some flaw or the other in them, especially if the device used was other than fire-arm e.g. Plastic toy gun, or vials of nitroglycerine. So, to ward off the peril, deterrence could be the only approach. The measure was therefore, due and taken, though tardily, after a macabre and harrowing experience, and was to be effective from an antecedent date. 9. Given, that the Regulation is retrospective in operation, the question is, whether the same can pass muster as a valid piece of legislation, and effect is to be given to the same? I am advisedly taking up the consideration of this contention, as with the exception of Mr. A.I Ahmad Fazeel, the other amici curiae, either took exception to its validity itself, or, to the sentence awarded, primarily because of the retrospective effect given to the same. 10. A retroactive law is one, which provides that, as at a past date, the law shall be taken to have been, that which was not. A law creating a new offence, or, punishing acts not punishable when committed is ex post facto as to acts committed before its passage. Ex post facto means literally "from what is done afterwards". It is a retroactive law that belongs to a category of criminal law. In the words of R. K. Gooch, in the Manual of Government in the United States, page 539, it "establishes conditions that are more unfavourable to the accused person than they were at the time the alleged crime was committed". It exposes a transgressor to a penal Statute, and being subjected by a subsequent legislation to any penalty, liability, or consequence that was not attached to the transgression when it accrued, or, because innocent acts can be rendered criminal after the event, or, offences can be aggravated, making it harsh, or, oppressive by altering the situation to the disadvantage of an offender, and as a result generally looked with disfavour. In the words of C. K. Allen, author of "Law in the Making" at page 383, "there is, in all civilized States, the strongest prejudice against retrospective, or, ex post facto legislation, since it is in the words of Willis, J. (in Philips v. Eyre (6QB1)), "prima facie of questionable policy, and contrary to the general principle, that legislation, by which the conduct of mankind is to be dealt with future acts, and ought not to change the character of past transactions carried on upon the faith of the existing law." In America ex post facto legislation is specifically forbidden by the Constitution. It is therefore, easy to understand the tenor of judgments, and the observation of the authors from there, on the subject. However, as our legal jurisprudence is based on the legal pattern of Britain and the British Commonwealth, it will be in the fitness of things to see as to what is the state of law on the subject there.
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11. In Director of Public Prosecutions v. A. E. Lamb and another ((1941)2AER499). The four defendants were charged with certain currency offences committed between September 3, 1939 to May 11, 1940, and pleaded guilty. The information laid was in August 1940. The Regulation in force at the time of the commission of the offences limited the penalty for each offence to a fine of --100, or, punishment for a term not exceeding three months, or both. On June 11, 1940, an order in Council came in force, altering the law from that date, providing for a further alternative penalty for a maximum fine equal to three times the value of the currency in question. The terms of this order were, where any person is convicted of an offence against "those regulations, "the maximum fine which may be imposed on him shall be . . . . . a fine equal to three times . The value of the security . . . . . . . ." Humphrey, J., observed, "to my mind, it was totally immaterial for him (the Magistrate) to consider, what would have been the result, and what would have been his powers, if this matter had come before him six months earlier than it did. He had nothing to do with it. He was sitting on the 4th of September, and all that he was concerned with, was his powers on that date". Tucker, J., observed, ". . . . . . Although I do not altogether like the idea of punishments being increased after the offences have been completed, nonetheless, if the language is clear and if that is the result, I think that it is impossible to escape from the consequences of the language which has been used". Cassels, J., had the following to say : "If the language is plain and not ambiguous, the Act may well have a retrospective effect". To the same effect is the decision of their Lordships in Buckman v. Button ((1943)3AELR82). 12. In Abeysekra v. Jayatilake ((1932)AC260), their Lordships of the Privy Council, while approving the judgment of the Supreme Court of Ceylon, while dealing with the retrospective nature of an Act, though of the nature of indemnity and relief in respect of penalties incurred, had no hesitation in saying, that the Legislature had certainly the `power to prevent, alter, or, reverse the consequences of their decrees, though "not Jove himself upon the past hath power". 13. The King v. Kldrnan (20 C L R 425) is a case from the High Court of Australia, and will be in point. Giffith, C. J., opined in that case, that in the case of plenary power, such as that of the United Kingdom, no question of the validity of such a law would arise (p. 432 of the Report). Higgins, J., observed, "that he was not aware of any instance in which a Legislature created by the British Commonwealth had been held to have over-stepped its power, by making legislation retroactive . . . . . . . This is the British system, whether it be right or wrong. It is not the system of French Code . . . . . . . . The British Parliament by Acts of attainer, or, otherwise, has made crimes c:1 acts after .The acts were committed and men have been executed for the crime, and whatever might be the excellence of the utilitarian theory of punishment, the Federal Government is not bound to adopt that theory. Parliament may prefer to follow St. Paul. St. Thomas Aquines and many others, instead of Bentham and Mill". In Miller v. Raith (4), it was held that any act made an offence, by an Act, became unlawful from the anterior date in exactly the same way as if the Act had been passed on that date. 14. The learned Attorney-General has cited a number of cases from our Courts in which the same view has consistently prevailed. In Nawab Khambu Khan and others v. The Emperor (AIR 1943 Sind 39), observation was that in matters of criminal law, retrospective effect could be given only by an Act of Legislature, a validating Act. In the Punjab Province v. Malik Khizir Hayat Khan Tiwana (PLD 1956 FC 200), the respondent had his suit decreed by the High Court of Judicature at Lahore on the Original Side, for a considerable amount towards compensation. It was after the pronouncement of judgment that there was the amendment of the Canal and Drainage Act by the Constituent Assembly. Because of the amendment, it was the Government that had to be compensated by the plaintiff. Their Lordships of the Federal Court held that, although the legislation might be harsh, or, unreasonable, or vindictive, yet it was not for the Court to question the motive, or, the policy, but to ascertain the intention and carry it out, irrespective of the consequences. In Messrs Noorani Cotton
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Corporation and others v. The Sales Tax Officers (PLD1965SC161), it was held that, as long as the power to enact laws remained in force, it was power to make laws for all times, past as well as future, and that even if the power to legislate existed for a day, it could have made laws for all times. In Mir Ahmad Nawaz Khan Bughti v. Superintendent of Jail, Lyalipur and others (PLD1966SC357). The question was kept open, but it was remarked that the distinction, which the learned counsel drew between retrospective legislation, which affected rights and liabilities of persons, and that which did not, was without foundation. In that event, there would be no retro-- spective legislation. 15. However, in Haji Ghulam Zamir and others v. A. B. Khan and others (PLD 1965 Dacca 156), though finding no fault with the proposition that the Legislature was competent to legislate prospectively as well as retrospectively, it was ruled that the Ordinance, being not contemporaneous law, was an attempt to nullify Article 2 of the Constitution of 1962 (which is in pari materia with Article 4 of our Constitution). As the said article was not a mere rope of stands, but a protection In praesenti, therefore the same was void. This view was followed in the later case of Haji Ghulam Sabir v. Pan Allotment Committee and another (P .L D 1967 Dacca 607). The Supreme Court in Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner and another (PLD 1968 SC 101), took notice of the Dacca cases and observed: "To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect is respect of all matters that are specified in Article 2. We do not conceive that the article was intended to produce so wide an effect in relation to the well-established practice of retrospective, or, retroactive legislation. It is difficult to construe Article 2, as conveying Fundamental Right in every citizen of Pakistan, and every person for the time being within Pakistan, against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interest. In Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623 ), the same view was reiterated, though it was emphasised that, for the deprivation of vested right, the words had to be express, or, the intendment had to be explicit. 16. 1t was, however, strenuously argued by Mr. Khalid Ishaq and Mr. Naseem Farooqui and also by Mr. Hashmat A.I Habib, that Article 12 of the Constitution still remains in the field, and the same is unaffected by the Proclamation of Emergency, and the President's Order, suspending the Fundamental Rights. The material portion of Article 12 reads as under; "l2. No law shall authorise the punishment of a person---- (a) for an act or omission that was not punishable by law at the time of the act or omission, or (b) for an offence by a penalty greater than or of a kind different, from, the penalty prescribed by law for that at the time the offence was committed." Support was sought for the proposition from the case of Mrs. Habiba Jilani v. The Federation of Pakistan (PLD 1974 Lah. 153), wherein it was observed that, in spite of the Proclamation of Emergency, the Fundamental Rights are not suspended, but only the right to move the Court for enforcement of the rights remains suspended. Therefore, when it was prayed that the detention should be declared to be illegal for non-compliance with the provisions of Article 10, the petitioner was not seeking the enforcement of a Fundamental Right, but simply asking the High Court to perform its constitutional duty under Article 199 (1) (b) (i) to satisfy itself, whether the detenu is being held in custody in accordance with law. This view came to be followed in another case from the same High Court in Major General (Retd.) Mian Ghulam Jilani v. The Federal Government (PLD 1975 Lah. 65). Reference was made to Article 233 (2) of the Constitution, which did not include Article 12. The President, according to them, could make an order of kind, which could be made only under clause (2) of Article 233 of the Constitution, and anything in excess thereof would be in conflict with the same, and thus void. The reply of Mr. S. Shareefuddin Pirzada was that the decision in the Lahore case was not in accordance with the rules laid down in Abdul Baqi Baloch v.
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Government of Pakistan (PLD1968SC313), wherein it was observed that, as long as the Fundamental Rights remained suspended, clause (2) of Article 6 of the Constitution of 1962 (which is in pari materia with Article 8 (2) of the Constitution) could not be agitated, and todeclare the Ordinance in question invalid would be tantamount to enforcing the Fundamental Rights. Reference was also made to the case of Miss Asma Jilani v. The Government of the Punjab and another (PLD1972SC139), and some other cases, out of which mention might be made of the case of Begum Nusrat Bhutto v. Chief of the Army Stuff and Federation of Pakistan (PLD 1977 SC 657). The Fundamental Rights remaining suspended, invocation of Article 12, according to him, would be totally irrelevant. He also maintained that Article 233 (2) of the Constitution was not the only source of the President's power during an emergency and allusion to the same in the judgment of Begum Nusrat Bhutto was by a mere way of analogy. At any rate, according to him, clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, being C. M. L. A. Order No. 1 of 1977, reigned supreme, suspending all the Fundamental Rights conferred by Chapter 1, Part II of the Constitution, and alongwith it, all proceedings in any Court for the enforcement of the same. This order being an extra-constitutional instrument was, therefore, beyond challenge and above reproach. He further contended that it had also been held in the case of Begum Nusrat Bhutto, that the Chief Martial Law Administrator had the power to amend the Constitution, and, in that case, the amendment could be prospective as well as retrospective. It is not necessary to expatiate, at My length, on this issue, as we had an occasion to deal with certain aspects of these submissions in Writ Petition No. D-52. Rustam All and others v. Martial Law Administrator, Zone `C' and others (PLD 1978 Kar. 736), in which we have held, only a week earlier, that, the enforcement of the Fundamental Rights remain suspended. That will also be the position in regard to Article 10 of the Constitution, which had been invoked in reference to certain contentions whichfollow later. 17. However, Article 4 of the Constitution has not been affected by the Proclamation of Emergency, according to which, the protection of law, and to be treated in accordance with law, is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. Law, as held in Brig. (Recd.) F. B. A.I and another v. The State (PLD1975SC506), in its generally accepted connotation, means positive law, that is to say, a pronouncement of the Will of the competent law-giver. It was observed : "There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Courts cannot strike down a law on any such higher ethical notions, nor can Courts act on the basis of philosophical concepts of law, as pointed out by me in the case of Miss Asma Jilani v. The Government of the Punjab and another. In Federation of Pakistan v. United Sugar Mills Ltd., Karachi (PLD1977SC397), it was ruled that the connotation of the word "law" was restricted to positive law, that is to say, a formal pronouncement of the Will of the competent law-giver and did not include what were the legal precepts or theories; even judicial pronouncement. It will thus be seen that Article 4 of the Constitution will be like a School-child's holiday with home work tagged on to it. It has to yield to President's Order No. 1, and also Martial 'Law Regulation No. 29. I am, therefore, clearly of the opinion that the retrospection given to Martial Law Regulation 29 will prevail, and due effect has got to be given to the same. 18. It was contended by Mr. Hashmat A.I Habib, and also by Mr. Khalid M. Ishaque, and Mr. Naseem Farooqui, that the present Govern--ment had acquired legitimacy on the basis of the doctrine of necessity, and' according to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan, the avowed object of the present Government was holding of fresh elections, so that a freely elected Government might once more be installed in office. It had, therefore, no business to fritter its energies in other direction, and thus lose sight of the goal. The simple answer to this question is to be found in the said judgment itself, where the true legal position emerging in the extra-constitutional change over had been dealt with, specially the three categories of the various types of permitted actions, that is, 3 (a) to 3 (d) which had better be reproduced;----
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"(iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra- constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consis--tently recognized by judicial authorities as falling within the scope of the law of necessity, namely (a) All acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it ; (b) All acts which tend to advance or promote the good of the people ; (c) All acts required to be done for the ordinary orderly running of the State ; and (d) All such measures as would establish or lead to…
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