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Petitioner: Malik GHULAM JILANI VS Respondent: THE PROVINCE OF PUNJAB AND Other
Court Name: Lahore High Court Judge(s): Aftab Hussain, Zakiuddin Pal Title: Malik GHULAM JILANI vs THE PROVINCE OF PUNJAB AND Other Case No.: Appeal No. 76 of 1979 Date of Judgment:1979-04-02 Reported As: PLD 1979 Lahore 564 Result: order made
Judgment ORDER ZAKIUDDIN PAL, J.-Mr. Aamar Raza A. Khan, Advocate-General, Punjab, and Syed Iftikhar Ahmad, Deputy Attorney-General of Pakistan, both, have appeared at the request of the Court and rendered assistance at the preliminary stage. 2. Writ Petition No. 1205/79 was filed by Malik Ghulam Jilani, appellant herein, for a direction to respondent No. 4, General Muhammad Zia-ul-Haq, Chief of the Army Stall to refrain, as purported President of Pakistan, from passing any order' on the mercy petition filed by the appellant as a friend of Mr. Zulfiqar Ali Bhutto in regard to the latter's death sentence; to respondents 2 and 3, the Home Secretary, Government of the Punjab, and the Inspector-General of Prisons, Government of the Punjab, respectively, 'to forward the aforesaid mercy petition to respondent No. 7, the Secretary. Ministry of Interior, Home Division, Government of Pakistan Islamabad; to respondent No. 7 restraining him from obtaining orders on the mercy petition from General Muhammad Zia-ul-Haq and directing him to obtain orders from Mr. Fazal Elahi Chaudhry (who has since relinquished his office as President of Pakistan, but according to the appellant still continues to be the President of Pakistan) on the mercy petition, with a further direction to withhold the petition for necessary consideration/orders by the competent President of Pakistan if respondent No. 5, Mr. Fazal Elahi Chaudhry is held by this Court to have ceased to hold the office of the President of Pakistan; to respondents 1, 2, 3, 6 and 7, the Province of Punjab, through the Chief Secretary, Government of the Punjab, the Home Secretary, Government of the Punjab, the Inspector-General of Prisons, Government of the Punjab, the Superintendent, District Jail, Rawalpindi and the Secretary, Ministry of Interior, Home Division, Government of Pakistan, Civil Secretariat, Islamabad, respectively,
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restraining them from executing the sentence of death awarded to Mr. Zulfiqar Ali Bhutto pending the determination of mercy petition by the competent President of Pakistan. 3. The writ petition was dismissed in limine by a learned Single Judge of this Court vide his judgment dated 19-3-1979 mainly on the ground that though the appellant has a right to file a petition for mercy for a friend, relative or in a rare case even for party man or stranger, but there his right ends and he is not entitled to pursue the matter further. He cannot on the strength of such a mercy petition, get a substantial right with regard to the lawful authority of the detaining authority or the pardoning authority to be examined in its full legal perspective. It was also held that the Superintendent Jail, who was to execute the sentence was not concerned with the de facto or de jute authority of the President; he was to see only that he received an order from the appropriate quarter through the hierarchy provided and prescribed in the Jail Manual. It was further held that the power of pardon, the grant, the abeyance or the refusal to grant it could not collaterally be challenged in the proceedings started after filing of the mercy petition, as the scope was entirely of a quo warranto proceeding. 4. The aforesaid writ petition, which has been dismissed by the learned Single Judge, was third in the series directed towards achieving the same end I e. Deferment of the sentence of death passed by the High Court and upheld by the Supreme Court against Mr. Zulfiqar Ali Bhutto in Nawab Muhammad Ahmad Khan's case. The first petition, Writ Petition No. 716,179 was dismissed in limine on 13-2-1979 and the second petition, Writ Petition No. 929/79 was disposed of on 28 2-1979 by the same learned Single Judge. While dismissing the present writ petition, it has been observed by the learned Judge that facts of this writ petition are very much similar to Writ Petition 929/79. 5. Mr. Aitaz Ahsan, learned counsel for the petitioner has raised the following contentions : (a) The learned Single Judge has misinterpreted the scope of word "right" and has wrongly applied fallacious doctrine of superior Orders. (b) It has been wrongly held by the learned Single Judge that assumption of office of the President by General Muhammad Zia-u1-Haq can only be challenged through a quo warranto proceeding and not otherwise. According to law, it can be challenged in collateral proceedings as held in Mr. Zulfiqar Ali Bhutto v. The State PLD 1978 SC40. (c) Undue weight has been placed on prima facie de facto status of respondent No. 4 General Muhammad Zia-ul-Haq. The learned Single Judge, has, therefore, acted illegally in this regard, as respondent No. 4 is neither de jure nor legitimate authority for deciding mercy petition because he has usurped the Office of the President in violation of the Constitution. (d) President's Order No. 13 of 19978 is illegal and void being contrary to the Constitution, legal necessity and public good. The Constitution of 1973 cannot be amended through such legislation. (e) The assumption of Office of the President by respondent No. 4, General Muhammad Zia-ul-Haq is mala fide, in any case. 6. The aforesaid Order No. 13 of 1978, called the President's Succession Order, was issued on 15-9- 1978 by Mr. Fazal Elahi Chaudhary, the then President of Pakistan in pursuance of the Proclamation of the 5th day of July 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A.'s Order No. 1 /77) in exercise of all powers enabling him in that behalf. It was provided to have effect notwithstanding anything contained in the Constitution or any other law. Paragraph 3(t) of the Order provides that upon the office of the President becoming vacant by reason of death, physical or mental incapacity, resignation, or by reason of the incumbent of that office relinquishing charge of the office or for any other reason, before the election of a President under the Constitution, then the Chief Martial Law Administrator or such other person as may be designated by the Chief Martial Law Administrator shall be the President and shall perform all functions assigned to the President by or under the Constitution or by or under any law. Paragraph 4 thereof provides that if the Chief Martial Law Administrator is the President, then he shall hold the office until the President
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is elected in accordance with the Constitution. He may also, at any time, designate any other person to be the President; and if he does so, he shall cease to hold the office upon the person so designated entering upon the office. Sub-paragraph (2) of paragraph 4 provides that a person, other than the C. M. L. A. Who holds office of President under the said Order, shall, unless the C. M. L. A. Otherwise directs, hold the office until a President is elected in accordance with the Constitution. Paragraph 6 of the Order provides that if the person holding office of President immediately before the commencement of this Order resigns from his office or relinquishes charge of the office, he shall be entitled to utilize the period of leave and leave allowance in accordance with President's Salary, Allowances and Privileges Act, 1975. 6-A. It is not denied that Mr. Fazal Elahi Chaudhary, Ex-President of Pakistan, holding the office of President immediately before the commencement of the said Order submitted his resignation to General Muhammad Zia-ul-Haq, Chief Martial Law Administrator and at that time enjoying legislative as well as the powers of the Chief Executive, as held in Begum Nusrat Bhutto v. Chief of the Army Staff PLD1977SC657. It is also admitted that Mr. Fazal Elahi Chaudhary after relinquishing charge of President utilized the leave period and leave allowance to which he was entitled under the President's Salary and Privileges Act, 1975. 7. The Laws (Continuance in Force) Order, 1977 [C. M. L. A.'s] Order No. 1/77 was enforced on 5-7- 1977, when Martial Law was proclaimed in the country. Paragraph 2 of the Order lays down that notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, Pakistan shall, subject to this Order and any Order made by the President and any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, be governed as nearly as may be in accordance with the Constitution. Simultaneously General Muhammad Zia-ul- Haq as C. M. L. A. Issued proclamation to the effect that the Constitution of Pakistan shall remain in abeyance, National Assembly, Senate and the Provincial Assemblies would stand dissolved, the Prime Minister, Federal Ministers, Ministers of State, Advisors to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies, the Chairman and Deputy Chairman of the Senate the Provincial Governors, Provincial Chief Ministers and the Provincial Ministers would cease to hold office, the President of Pakistan would continue in office and the whole of Pakistan would come under Martial Law. The Supreme Court while dealing with the case of Begum Nusrat Bhutto held that the proclamation embodied and described in legal form, the extra- constitutional action, with the Chief of the Army Staff had taken on the ground of necessity. The circumstances under which the aforesaid proclamation was issued were dealt with in detail by the Supreme Court in that case. As a result thereof the proclamation was held to be valid. It was further held that the provisions of the Laws (Continuance in Force) Order showed that they were primarily designed to give effect to the purpose of the proclamation. It was held that this order was off- spring of necessity and as such the Superior Courts would continue to have power of judicial review notwithstanding anything to the contrary contained in the Order to test the validity of its provisions and any action taken thereunder in the light of the principles regulating the application of the law and doctrine of necessity after the Supreme Court held the proclamation to be valid. It meant that the action of the C. M. L. A. In dissolving the National Assembly and Senate, and all the Provincial Assemblies as well as the removal of the Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate etc. From their offices stood validated. 8. It has been argued while relying upon Articles 44, 47 and 49 of the Constitution of the Islamic Republic of Pakistan that since the country is to be ruled under the Constitution as much as possible, therefore, President's Order No. 13 of 1978 being contrary to the aforesaid provisions, the assumption of the office of President by General Muhammad Zia-ul-Haq is against law; and since he is not the legally appointed President of Pakistan, therefore, the mercy petition to be disposed of
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by the President under the Constitution cannot be disposed of by him; its disposal should be deferred till lawfully appointed President enters upon the Office. According to Article 41 of the Constitution, President shall be elected by the members of the Parliament in joint sitting in accordance with the provisions of the. Second Schedule. He would hold office for a term of five years from the date he enters upon his office. Under clause (3) of Article 44, he can resign from his office by sending his resignation to the Speaker of the National Assembly. He can be removed on the ground of physical or mental incapacity or on a charge of violating the Constitution or gross misconduct by two Houses of Parliament. According to Article 49, if the office of President becomes vacant by reason of death, resignation or removal, the Chairman of the Senate or, if he is unable to perform the functions of the office of the President,' the Speaker of the National Assembly shall act as President until a President is elected in accordance with clause (3) of Article 41. Clause (2) of Article 49 provides that when the President by reason of his absence from Pakistan or any other cause is unable to perform his functions the Chairman of the Senate or if he too is absent or unable to perform the functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the President returns to --- Pakistan or otherwise resumes his functions. According to Article 45 of the Constitution, the President has the power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority. 9. It has been argued that there was no legal necessity to issue President's Order No. 13 of 1978 enabling the C. M. L. A. Or any other person, as may be designated by him, to become President of Pakistan on the office of the President becoming vacant. It is contended that the procedure as laid down in Article 49 should have been followed, and since Senate cannot be dissolved under the Constitution, therefore, the Chairman of the same should have taken over as President of Pakistan after the office was relinquished by Mr. Fazal Elahi Chauhdary. I am afraid, this contention has no force in the given circumstances. The proclamation dissolving the National Assembly,. The Senate and Provincial Assemblies and removing the Prime Minister, Federal Ministers. Ministers of State, Speaker and Dy. Speakar, National Assembly, Chairman and Deputy Chairman- of -the Senate etc. From their offices having been declared to be valid by the Supreme Court, the aforesaid representative offices no more exist and as such the Speaker and the Chairman are no more holding their respective offices. Further, according to Article 53 of the Constitution, the office of Speaker would become vacant if he resigns or otherwise ceases to be a member of the Assembly. The same provision has been made applicable to the Chairman of the Senate vide Article `61. The Speaker and Chairman being part and parcel of the National Assembly and the Senate, respectively, cannot hold their respective offices after the dissolution of both the houses. When both the house stand dissolved then the Speaker and the Chairman cannot be said to be still holding offices. According to the Constitution, they can hold office as long as they remain members of the respective houses and in the absences of that no such office can be held by them. They have ceased to be members of the respective houses after their dissolution and as such they are no more holding their respective offices. 10. Therefore, in the given circumstances the aforesaid provisions of the Constitution cannot be implemented and there being no further provision in the Constitution to meet the situation arising on account of resignation of Mr. Fazal Elahi Chaudhary, Ex-President's Order No. 13 of 1978 wall enforced to fill in the vacuum. The Office of the President was very much recognized in the Laws (Continuance in Force) Order, 1977 and as such) it had to be assumed by some body. It could not remain vacant as the country was to be, subject to the Laws (Continuance in Force) Order,. 197/1 and any order to be made by the President and any Martial Law Regulation or Martial Law Order made by the C. M. L. A., governed, as nearly as may be, in accordance with the Constitution. The
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circumstances created on account of the resignation of Mr. Fazal Elahi Chaudhary necessitated issuance of President's Order No. 13 of 1978 otherwise there would have been great confusion in the country. 11. The validity of President's Order No. 13/78 is to be decided, as held by the Supreme Court in Begum Nusrat Bhutto's case in the light of the principles regulating application of law and doctrine of necessity. It has been held in that case that 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity, the President of Pakistan and the Superior Courts continue to function under the Constitution. The C. M. L. A. Having validly assumed power by means of extra-Constitutional step in the interest of the State and in the welfare of the people is entitled to perform all such acts and promulgate all legislative measures which have been consistently 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 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 the establishment of the declared objectives of the promulgation of Martial Law, namely the restoration of law and order and normalcy in the country and the early possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution. It has also been held that the aforesaid acts or any of them may be performed or carried out by means of President's Orders; Ordinances, Martial Law Regulations or Orders, as the occasion may require, and the. Superior Courts would continue to have power of judicial review to Judge the validity of any act or action of the Martial Law authorities, if challenged, in the light of the principles underlying the principle of law of necessity, as mentioned above principles Their powers under Article 199 of the Constitution would remain available to their full extent and may be exercised as herebefore notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, President's Order or Ordinance. 12. The Supreme Courts while deciding the case of Mr. Zulfiqar Ali Bhutto further elucidated the aforesaid conditions which should be taken into consideration by the superior Courts while deciding the actions of the Martial Law regime in the light of State necessity. It has been held that it must be clearly understood that in judging whether an action taken by the President or the C. M. L. A. Is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned. Nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories incorporated by the Supreme Court in Begum Nusrat Bhutto's case while spelling out the powers which may be exercised by the C. M. L. A. Or the President of Pakistan acting on his advice. It has been further held that in order to find out as to what is reasonable or not in this context, must be p; judged by the standards of an ordinary ,prudent and reasonable citizen and will depend on the prevailing circumstances and the object with which the action has been taken. Viewing in this perspective, the Supreme Court held that President's (Post Proclamation) Orders 3, 4 and 5, which were ' challenged before the Supreme Court, clearly fell within the objectives for which the Martial Law was imposed in the country on the 5th of July 1977, to ensure restoration of democratic institutions under the Constitution. Their Lordships further held that as the Constitution, unfortunately, did not contain any provision for meeting the unprecedented situation which was being considered, the President on the advice of
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the C. M. L. A. Was clearly not only competent, but also under a solemn obligation to take steps to ensure fresh elections. It was held that in these circumstances it was not for the Court to substitute its own opinion as to the arrangements necessary to be made in that behalf, all that the Court was to examine was whether the contemplated measures reasonably fell within the objectives in question. It was held that the aforeasid three President's Orders, subject-matter of the judgment in that case, directly intended to achieve one of the most important objectives of the imposition of Martial Law and as such their validity could not be questioned on the ground that they were not necessary. It may be mentioned that aforesaid President's Orders 3, 4 and 5 of 1977, related to the Oath of Office of the Chief Election Commissioner, Election Commission and Elections of Houses of Parliament and Provincial Assemblies, respectively. The fact that the General Elections, to be held in October 1977, were postponed was noticed in the aforesaid judgment passed by the Supreme Court in Mr. Zulfiqar Ali Bhutto's case. The arrangements made by the President as well as the Chief Martial Law Administrator by enforcing Post Proclamation President's Orders 3, 4 and 5, were held to be falling within the objectives for which Martial Law was imposed President General Muhammad Zia-ul-Haq has now fixed 17-11-1979 for holding of General Elections. The E present measure in the form of President's Order No. 13/78 is an ad hoe one. It is an extra-Constitutional step in order to enable the Martial Law regime to achieve the objectives already declared by it. 13. According to President's Order No. 13/78 if the C. M. L. A. Assumes the office of the President, then he shall hold this office until a President is elected in accordance with the Constitution. Similar is the case with a person who is designated by the C. M. L. A. To hold this office. The fact that General Elections are going to be held in November 1979 and the power will be transferred to the elected representatives, who in turn will elect President of the country in accordance with the Constitution, cannot be ignored. General Muhammad Zia-ul-Haq will relinquish the office of the President as soon as the new President is elected in accordance with the Constitution after the General Elections. The extra Constitutional step in the form of President's Order 13/78 has been taken in the public p interest as well as for the purpose of running the country in an orderly manner. It undoubtedly tends to advance and promote the good of the people so as to achieve one of the objects of Martial Law, i.e. Holding of General Elections as early as possible. As mentioned above, the Supreme Court has authorised the present regime to carry out the aforesaid acts or any one of them by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders, as e occasion may require. Mr. Fazal Elahi Chaudhary, Ex-President of Pakistan was still the validly elected President, as admitted by the learned counsel, when President's Order 13/78 was issued by him. As such issuance of President Order 13/78 is fully justified in the given circumstances. 14. General Muhammad Zia-ul-Haq's position as C. M. L. A. Having imposed Martial Law in the country, as discussed above, has been fully validated by the Supreme Court in Begum Nusrat Bhutto's case. It has been held that he enjoys the legislative as well as powers of the ChiefExecutive. It means that he is performing his duties being the Chief Executive, as Prime Minister' of the country and is performing functions of Legislatur as well. When he enjoys the legislative powers, it means that he also holds the power of the Speaker of the National Assembly. In the circumstances, when Mr. Fazal Elahi thaudbary submitted his resignation to him, it was submitted to a valid authority competent to accept the same. The learned Advocate-General has submitted, and this submission has not been denied by the learned counsel for the petitioner, that Mr. Fazal Elahi Chaudhary was requested to continue as President, but he insisted on relinquishing the charge of his office. Since the legislative as well as the power of the Chief Executive had combined in General Muhammad Zia-ul-Haq being the C. M. L. A. As held by the Supreme Court, therefore, Mr. Fazal Elahi
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Chaubdary's resignation was rightly accepted and he was validly relieved of his duties as President. 15. As a consequence of the above discussion it is held that Mr. Fazal Elahi Chauhdary has ceased to be President of Pakistan and General Muhammad Zia-ul-Haq, in addition to his status as C. M. L. A. Has also validly assumed the office of the President of the country. As such, question of restraining him from deciding the mercy petition submitted by the petitioner does not arise and the prayer made in this behalf is hereby refused to be granted. 16. According to Article 45 of the Constitution, the President is authorised to grant pardon, reprieve and respite and to remit, suspend or…
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