Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Aftab Alam and another VS Respondent: Secretary Home & Tribal Affairs, Govt. of KPK, JUDGMENT
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Syed Arshad Ali Title:Aftab Alam and another vs Secretary Home & Tribal Affairs, Govt. of KPK,
JUDGMENT
Reported As: 2023 PHC 265, PLJ 2024 Peshawar 1, PLD 2024 Peshawar 112 Result: Petition Dismissed Judgment JUDGMENT SYED ARSHAD ALI, J:-On 31.05.2023, these petitions were disposed of by means of the following short order: For reasons to be recorded later, the instant Writ Petition as well as the connected Writ Petitions, the detailed list has been provided in Annexure 'A' to this Short Order, are disposed of in the following manner:- i. The impugned orders of the detention of the petitioners under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 ("Ordinance") read with Notification No. 3-104/H-SPL- 1-64 dated 27.02.1965 and Notification No. SO(JUDL)HD/3-92/2008 dated 02.09.2009 are not maintainable for absurdity, vagueness, lack of reasons/sufficient material while passing the impugned orders by the Deputy Commissioner, which are accordingly set aside and the petitioners be released forthwith on furnishing bail bonds in the sum of Rs. One Lac each with two sureties each in the like amount to the satisfaction of Deputy Commissioner or Additional Deputy Commissioner or Assistant Commissioner with an undertaking they shall not involve in any anti- state activities and shall not act prejudicially to the public safety in any manner (if such bail bond has not already been furnished in terms of the order of this Court dated 18.05.2023), if not required in any other case. ii. The respondents/ District Administration/ Provincial Government would be at liberty to initiate proceedings and pass an appropriate order under the Ordinance against the petitioners when it is satisfied that there are sufficient material against any of the petitioner relating to their any activity
---
## Page 2
prejudicial to the public safety or the maintenance of public order and their arrest/detention are necessary for maintaining the public safety and public order. iii. Those petitioners, whose detention orders passed under Section 3 of the Ordinance, were suspended by this Court subject to furnishing bail bonds along with an undertaking, referred above, and pursuant to the said order, the required bail bonds have been furnished along with the above referred undertaking, their such release on the same terms, as stated above, are hereby confirmed subject to para-ii above. iv. Those petitioners, whose detention orders have been suspended by this Court and so far neither they are arrested nor required in any other case, shall submit bail bonds in sum of Rs. One Lac each with two sureties each in the like amount along with an undertaking referred above to the satisfaction of Deputy Commissioner or Additional Deputy Commissioner or Assistant Commissioner within five (05) days from the date of judgment of this Court. v. The bail bond/surety bond furnished and executed as stated above would be valid for a period of six (06) months from the date of the bond. The reasons for the short order are given below: 2. The petitioners have challenged their detention under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 ("MPO"). It was on 09.05.2023 that the former Prime Minister Imran Ahmad Khan Niazi was arrested by the Law Enforcing Agencies within the premises of Islamabad High Court. The said arrest was protested by the members of the Pakistan Tahreek- e-Insaf throughout the country, and, as evident from the reports in print as well as electronic media, a good number of such protestors created serious law &order situation throughout the country by attacking public places and burning public property andprivate vehicles, military installations, and making hate speeches etc. However, upon the release of the former Prime Minister by the Apex Court on 11th May, 2023, the situation returned to normalcy. 3. On 10.05.2023, the Government of Khyber Pakhtunkhwa Home & Tribal Affairs Department, through a letter addressed to the Government of Pakistan Ministry of Interior, Islamabad intimated them of the prevailing law & order circumstances, and for safety of life and property of citizens as well as security of government installations, placed a request for acquisition of Armed Forces in aid of civil power under Article 245 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). On the same date, the Federal Government while honouring such request and by exercising powers conferred under Article 245 of the Constitution and Section 4(3) (ii) of Anti- Terrorism Act, 1997, authorized deployment of Pakistan Army troops (assets troops) in aid of civil power for safety of life and property of citizens as well as security of government installations in the Khyber Pakhtunkhwa Province. Letter dated 10.05.2023 issued by the Government of Khyber Pakhtunkhwa Home & Tribal Affairs Department is evident to show that Rules of Engagement for Pakistan Army were issued in consultation with the Headquarter 11-Corps, Peshawar, specifying the exact contour of deployment of Pakistan Army in respective formation area of responsibility. 4. In the aftermath of 9th May 2023, a good number of citizens, who purportedly remained violent and attacked the government installations, burnt public place, and vehicles, and endangered the lives of people were booked in criminal cases. From amongst them, the present Petitioners before this Court were put under preventive detention under Section 3 MPO. When the matter came up for hearing on 18.05.2023, Mr. Aamir Javed, the worthy Advocate General Khyber Pakhtunkhwa, raised a preliminary objection to the maintainability of these petitions in terms of Article 245(3) of the Constitution and has also argued that notices were required to be given to the Advocate General and Attorney General since interpretation of various provisions of the Constitution is involved in this matter, consequently, notices were issued to the Advocate General and Attorney General for Pakistan under Order-XXVII-A CPC to assist this Court on the following legal issue.
---
## Page 3
"Whether the provisions of Article 199 of the Constitution can be pressed into service where the Armed Forces have been called in aid of civil power for safety of life and property of citizen as well as security of government installations, by issuing notification under the provision of Article 245(3) of the Constitution? 5. Today, while opening his arguments, the worthy Advocate General has reiterated the aforesaid preliminary objection relating to the maintainability of these petitions. He has maintained that neither the action of the Federal Government under Article 245 of the Constitution has been challenged in these petitions nor as evident from the express language of clause (3) of Article 245 of the Constitution, this Court has any jurisdiction in the matter. The worthy Advocate General, while relying upon the observations of the Hon'ble Courts, in the cases of Sh. Liaquat Hussain and others vs. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 Supreme Court 504), Niaz Ahmed Khan vs. Province of Sind and others (PLD 1977 Karachi 604) and Darwesh M. Arbey, Advocate vs. Federation of Pakistan through the Law Secretary and 2 others (PLD 1980 Lahore 206) has argued that when the Armed Forces of Pakistan have been called to act in aid of civil power in pursuance of Article 245 of the Constitution, a High Court cannot entertain any petition under Article 199 of the Constitution which is indeed an express bar, therefore, this petition as well as the connected petitions merit outright dismissal. On merit, the worthy Advocate General has contended that a good number of petitioners were found involved in anti-state activities and there is every likelihood of repetition of the said acts, therefore, the order of preventive detention of the petitioners was not only justified but in the interest of the State. He has next argued that a complete legal mechanism /dispensation has been provided under the MPO which, inter alia, includes the availability of alternate remedy before the Board constituted under Section 3(5) of the MPO which is an appropriate forum to consider the representation made by an aggrieved person and to pass any order on the detention of the detenue keeping in view the material placed before it. 6. M/s Muhammad Muazzam Butt & Ali Zaman Advocate, the learned counsel representing the petitioners while rebutting the arguments of worthy Advocate General, have argued that since the impugned order of detention is based on malafide, besides being absurd, therefore, this Court has every jurisdiction to interfere in the matter. In support of their contention, they have placed reliance on the cases of Shahid Rasool vs. Government of the Punjab through Secretary Home Department, Lahore and 6 others (2023 YLR 333) and Federation of Pakistan through Secretary Ministry of Interior, Islamabad vs. Mrs. Amatul Jalil Khawaja and others (PLD 2003 Supreme Court 442). 7. Mr. Shah Faisal Utmankhel, Advocate, the learned counsel also representing the petitioners, has argued that despite the constitutional bar, the Court can still look into the propriety of the impugned order if it is clear from the record that the impugned action of authority is tainted with malice. As a result, these petitions are maintainable, and the petitioners deserve to be released. 8. We have given anxious consideration to the submissions of learned counsel for the parties and have perused the record. Opinion of the Court on the maintainability of these petitions. 9. It is the case of the respondent-Government that when the Armed Forces are directed by the Federal Government to act in aid of civil power in terms of Article 245 of the Constitution, then during such period and in relation to the area demarcated for the purpose, the High Court shall not exercise any jurisdiction under Article 199 of the Constitution. Before embarking upon this legal proposition, we would like to refer to the history of the said legislation. 10. In the original text, Article 245 read as "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".
---
## Page 4
11. The bare reading of the said Article would show that it dealt with only the situation where the Armed Forces were required to perform their twofold duties; (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. After general election in 1977 when late Zulfikar Ali Bhutto was elected as Prime Minister, the Opposition Parties under the banner of Pakistan National Alliance (PNA) carried out large scale demonstration to protest against the alleged rigging and manipulation in the election process by the ruling party of the then Prime Minister. Their demand being re-polling, the protest and demonstrations, though peaceful initially, turned violent and resulted in losses to property and lives. In order to curb the situation, Martial Law was imposed in Lahore, by the Federal Government, while exercising its authority under Article 245 of the Constitution, and the Armed Force of Pakistan were directed, subject to law, to act in aid of civil power. The Defence of Pakistan Ordinance, 1971 and the Army Act 1952 were amended whereby certain powers were given to the Armed Forces relating to maintaining public order. The aforesaid impugned actions were challenged before the Lahore High Court through a number of Constitutional Petitions.[1] 12. Similarly, in Karachi and Hyderabad Divisions, Curfew/Martial Law was imposed which led to an unfortunate incident i.e. fatal shootings of citizen in Liaqat Abad by the Law Enforcing Agencies deployed in the area. The said acts were challenged by Niaz Ahmed Khan, an Advocate of the Karachi High Court, before the Sindh High Court through various constitutional petitions.[2] During the said proceedings, on 16th May, 1977, Constitution (Seventh Amendment) Act, 1977 was introduced in Parliament, inter alia, for further amending Article 245 of the Constitution. We have also carefully perused the legislative debate at the time but it appears from the same that no one from PNA had participated in the said proceedings of the Assembly, therefore, the pro and cons of the said amendment could not be debated or considered. However, the Act was ultimately passed and assented to by the President whereby Article 245 of the Constitution was amended 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. 13. The essential issue before this Court is the bar of jurisdiction of this Court in terms of Article 245(3) of the Constitution. The scheme of governance provided under constitutional dispensation is to have trichotomy of power between the Executive, the Legislature and the Judiciary. Each of the organs may be fashioned in a variety of different forms and shapes. Indeed, it is the Constitution which defines the functions of each organ and also specific territories in which, the subject in respect of which, and sometimes even the circumstances in which these functions will be exercised by each of these organs or sub-organs.[3] 14. The Apex Court in the case of District Bar Association Rawalpindi has re-affirmed the independence of judiciary as one of the salient features and basic structure of the Constitution. It is emphasized in the judgment supra that the salient features, as ascertainable from the
---
## Page 5
Constitution, includes Democracy, Parliamentary form of Government and Independence of Judiciary. The Courts are always vested with jurisdiction to interpret the Constitution in order to ascertain and identify its defining salient features. It is equally Vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.[4] 15. In our Constitution, we can notice that not only Article 199 of the Constitution starts with the phrase 'Subject to Constitution' but there are other provisions in the Constitution expressly barring the jurisdiction of the Constitutional Courts e.g., Article 212 and Article 225 of the Constitution. In these cases, the bar is obvious for the reasons that in the matter of civil services and election disputes a complete mechanism has been provided either under the Constitution or the law made thereunder. The said disputes are decided by the forum either established under the mandate of Constitution or sub-Constitutional Law but within the parameters provided under Article 175 of the Constitution.[5] 16. However, very often we are confronted with the situation when no alternate remedy is available to an aggrieved person but still the jurisdiction of the High Court under Article 199 is barred. Article 245(3) of the Constitution is one such example. In the case of Zafar-ul-Ahsan[6], while considering the ouster clause in clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, which expressly said that an order of the authority mentioned in clause (3) of that order "shall not be called in question in any Court", Munir, C.J. while speaking for the Court observed: "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute". 17. In the case of Zia-ur-Rahman (supra), the Apex Court while dealing with the interpretation of the ouster clause as provided in Article 281[7] of the Interim Constitution Order, 1972 observed that: "In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 along with some of the other provisions of the same Constitution without departing from the well-recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice". Soon after the judgment in Zia-ur-Rehman's case, clause (2) of Article 281 of the Interim Constitution was amended, by adding a deeming clause and an ouster of jurisdiction clause to that Article. Thereafter, the Interim Constitution was replaced by the Constitution of 1973 in which
---
## Page 6
Article 281(2) of the Interim Constitution as Article 269(2) was reproduced with a view to strengthen the validation and ouster provisions. That Article provided that the orders made and actions taken inpurported exercise of powers under Martial Law Regulations and Orders "shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever". In Saeed Ahmad Khan's case (PLD 1974 SC 151) Honorable Supreme Court of Pakistan was seized with the matter of interpretation of Article 269(2). Despite the insertion of the words "on any ground whatsoever", the Supreme Court did not agree that the acts, orders or proceedings which are done, taken or made without jurisdiction, malafide or coram non judice, have been saved from the security of the courts by the ouster clause. The Apex Court in the case of Malik Ghulam Mustafa Khar[8] dealt with the ouster clause under Article 270-A of the Constitution. The main object whereof was (a) to confer validity upon acts,actions andproceedings, done or taken when the Martial Law was in force; and (b) to oust the jurisdiction of the Courts from examining their validity. If there is a dispute on the point whether a court has or does not have jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it has to hold that it has no jurisdiction. Indeed, it is now "an established principle of law that the courts of this country are the judges of their own jurisdiction" and it has been consistently held "that the question, as to whether a superior court has jurisdiction in a particular matter or not, is to be decided by the court itself'. In so doing, the courts exercise their judicial power, which is a constitutional power and which cannot be taken away by a sub-constitutional law.[9] It is now firmly established that an ouster clause, however, widely worded and whether it occurs in a constitution or in an ordinary Statute, does not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram-non-judice and malafide).[10] 18. The interpretation of bar of jurisdiction under Article 245(3) of the Constitution came up before the Hon'ble Apex Court, Hon'ble Sindh High Court and Hon'ble Lahore High Court in the cases of Sh. Liaquat Hussain and others vs. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 Supreme Court 504), Niaz Ahmed Khan vs. Province ofSind and others (PLD 1977 Karachi 604) and Darwesh M. Arbey, Advocate vs. Federation of Pakistan through the LawSecretary and 2 others (PLD 1980 Lahore 206). It would beimportant to note that in all these cases, it was not a simple matter of interpretation of Article 245 of the Constitution but in all the three cases, the Armed Forces were directed by the Federal Government to act in aid of civil power when there were extra ordinary circumstances; for example, at the time of insertion of the clause, there was an emergency in the country as contemplated under Articles 232[11] and 233[12] of the Constitution. In the said dispensation, Articles 15, 16, 17, 18, 19 fell under eclipse as far as the exercise of executive authority by the executive limb of the State and the power of legislation to legislate law for the particular purpose. In Niaz Ahmed Khan's case Mr. Justice Abdul Kadir Shaikh, the Hon'ble Chief Justice of Sindh High Court explained the parameter of powers by the Armed Forces under Article 245 and observed that an embargo has been placed by the Constitution under Article 245 by word 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. 18. After amendment, the law laid down through (Seventh Amendment) Act No. XXIII of 1977 was thrashed out by Full Bench of Hon'ble Lahore High Court in the case of Darwesh M Arbey, Advocate. [13] Clause-3 of Article 245 of the Constitution is an ouster of jurisdiction clause. The ratio of the case ibid was that the ouster provided in Article 245 does not operate as complete ouster of
---
## Page 7
jurisdiction, and has been made contingent upon the existence of certain factors mentioned in that clause. The Hon'ble Court assumed the jurisdiction by analyzing the law in view of the following jurisdictional points: (i) 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. Aslam Riaz Hussain J, as then he was, interpreted the ouster of jurisdiction clause of Article 245, as follows: "15. The position with regard to clause (3) of Article 245, is, however, different because the wording of this clause does not spell out a naked ouster of jurisdiction of this Court under Article 199 but the same has been made contingent upon the existence of certain factors mentioned in that clause". 20. The matter of interpretation of Article 245 also came up for discussion before the Hon'ble Sindh High Court in the case of Niaz Ahmed Khan.[14]The purpose of introduction of Article 245 was laid down as under:- "It was for this reason that the makers of the Constitution enacted Article 245 so that use of Armed Forces may be availed of in an emergency but with the restriction that it be only on a direction issued by the Federal Government and also the Armed Forces will act subject to law". The then Hon'ble Chief Justice of High Court of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.