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Petitioner: FEDERATION OF PAKISTAN VS Respondent: GHULAM MUSTAFA KHAR
1988 S C M R 185
1988 S C M R 185
Present: Muhammad Haleem, C. J., Nasim Hasan Shah, Shafiur Rahman, Javid Iqbal, Ali Hussain Qazilbash and Usman Ali Shah, JJ
FEDERATION OF PAKISTAN and another--Petitioners
versus
Malik GHULAM MUSTAFA KHAR--Respondent
Civil Petition No.275-R of 1987, heard on 8th December, 1987.
(On appeal from the common judgment dated 18-11-1987 of the Lahore High Court in Writ Petitions Nos.3623, 4705, 659, 571, 599, 660 and 518 of 1986) .
Constitution of Pakistan (1973)--
---Arts.270-A & 185(3)--Leave to appeal granted to examine question as to whether all legal measures mentioned in cl.(1) of Art.270-A of the Constitution, having been validated cannot be subjected to judicial review and as regard orders passed, proceedings taken and acts done in exercise of powers derived from said legal measures High Court's jurisdiction was limited to corum non judice, without jurisdiction, malice in law and violation of the constitutional provisions to a specified extent.
Ali Ahmed Fazeel, Attorney-General, Khalil Ramdey, Advocate-General Punjab and Ch. Fazal-i-Hussain, Advocate-on-Record for Petitioners.
S.M.Zafar, Advocate Supreme Court and Imtiaz Ahmed Khan, Advocate-on-Record for Respondent
Date of hearing: 8th December, 1987.
ORDER
NASIM HASAN SHAH, J.--This petition for leave to appeal is directed against the common judgment passed by a Full Bench of three Hon'ble Judges of the Lahore High Court, Lahore in seven Writ Petitions on 18-11-1987 whereby in accordance with the opinion of majority it was held that: - .
"all legal measures mentioned in Clause (I) of Article 270-A of the Constitution, having been validated cannot be subjected to judicial review. As regards the orders passed, proceedings taken and acts done in exercise of the powers derived from said legal measures the High Court jurisdiction is limited corum non judice, without jurisdiction, malice in law, and violation of the Constitutional provisions to the extent already stated. "
One of the Hon'ble Judges by a separate judgment went on to observe that petitions under Article 199 of the Constitution are maintainable not only in the above circumstances but also against orders passed, acts done and proceedings taken by Military Authorities, which are mala fide. In view of the above finding the learned High Court has directed that each case shall now come up for hearing for disposal on merits as per orders of the Chief Justice.
2. The background of the above order is that the respondent and others, who were petitioners before the High Court were tried by Special Military Courts, convicted and sentenced for different offences, except the petitioners in Writ Petition No.659 of 1986, who are Ex-Army Officers and were arraigned before the Special Courts constituted under Presidential Order 2 of 1982/CMLA Order 1 of 1982. In Writ Petitions filed by them before the High Court, the Writ Petitioners had inter alia assailed the validity of the actions taken against them by Martial Law Authorities, the constitution of the Courts which tried them, the authority of the Chief Martial Law Administrator/ President, to amend the Constitution, the powers of the Parliament to incorporate Article 270-A in the Constitution, validating the legal measures issued and acts done by the Martial law Regime; ouster of jurisdiction of the superior Courts and the constitutionality of the assent given by the President to the Constitution (Eighth Amendment) Act. 1985.
3. A pre-admission notice was issued to the learned Attorney General who objected to the maintainability of the petitions but the learned Judges of the High Court held that the petitions were maintainable in the limited circumstances set out in the order of the Court reproduced above. The Federation of Pakistan feeling aggrieved has, accordingly moved this petition for leave.
4. This Court has already granted leave to appeal to consider the question whether the provisions of Article 270-A introduced by the Eighth Amendment to the Constitution of 1973 has the effect of validating, protecting and rendering immune from challenge not only the M.L.Rs., M.L.Os. and President's Orders promulgated during the Martial Law period but also every kind of action taken thereunder in C.Ps. Nos.191-K/87, 231-K/87, 261-K/87, 288-K/87, 170-R/87, 181-R/87, 182-R/87, 232-R/87, 233-R/87, 234-R/87, 235-R/87 and 236-R of 1987 passed against orders of the Sind High Court. As the questions arising in this petition are somewhat similar, leave to appeal is also granted. This case will be heard alongwith appeals arising from the above mentioned petitions. Further proceedings in pursuance of the order impugned herein shall remain stayed meanwhile.
5. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any, and put up for hearing in the month of February, 1988.
M.B.A./F-30/S Order accordingly