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Petitioner: GULAB DIN VS Respondent: MAJOR A. T. SHAUKAT
P L D 1961 (W
P L D 1961 (W. P.) Lahore 952
Before Shabir Ahmad, Muhammad Yaqub Ali and Anwarul Haq, JJ
GULAB DIN‑Petitioner
versus
MAJOR A. T. SHAUKAT AND OTHERS‑Respondents
Writ Petition No. 265 of 1961. Reference answered on 26th September 1961.
(a) Martial Law Regulation‑Interpretation‑General Clauses Act (X of 1897) inapplicable‑Intention of Regulation to be discovered by Courts. The General Clauses Act, 1897 cannot be invoked for interpretation of Martial Law Regulations, because neither that Act nor any Martial Law Regulation or Martial Law Order says that they shall be interpreted in accordance with the tenets laid down in the Act.
When interpreting any provision of law contained in‑any of the laws enforced by any of the many modes of making laws, the Courts have to find out the intention of the lawmaker. In case of laws which owe their existence to ordinary modes of making laws, i.e., passing of Acts or promulgation of Ordinances, the Law contained in laws relating to interpretation for example the General Clauses Act;. 1897, is that some expressions have, to be presumed to have a certain meaning unless the context indicates otherwise. Even when a Court has to find out the meaning of expressions used in a Martial Law Regulation or a Martial Law Order, one of the well‑established canons of interpretation of ordinary statutes, namely, that the law‑maker is to be presumed to have intended what has been clearly expressed by the words used, has applica tion.
(b) Martial Law Regulation (C. M. L. A's. No. 88), Para, 7 --"Martial Law Authority"‑Definition and scope of expression‑. Authority which can issue a Martial Law Regulation or Order or which is declared to be such an Authority‑Authority "clothed with power to do any act under a Martial Law Regulation or Order", not necessarily a "Martial Law Authority"‑Expression used in C. M. L. A's. Regulation No. 68.
The expression "Martial Law Authority" may be defined as follows :‑
A Civil or Military authority which can issue a Martial Law Regulation or a Martial Law Order or an authority which has been declared to be a Martial Law Authority either by the Chief Administrator of Martial Law or by someone authorised by the Chief Administrator of Martial Law to make such a declara tion.
That the expression does not mean that an Authority "clothed with the power to do any act under a Martial Law Regulation or Order" is a "Martial Law Authority", is clear from the context in which the same has been used in C. M. L. A's. Regulation No. 68.
Unless there is anything to show the contrary the law‑maker is to be presumed to have used an expression in the same sense throughout the law.
(c) West Pakistan Border Area Regulation, 1959 (Zone "B" M. L. A's. No. 9), para. 4‑"Border Allotment Committee " Not a "Martial Law Authority" within meaning of para. 1 of Martial Law Regulation (C. M. L. A's. * No. 88)‑Jurisdiction of High Court in regard to orders of Border Allotment Committee not taken away by Martial Law Regulation No. 88,if that jurisdiction otherwise is intact‑Same principle re‑jurisdiction applies to orders of Chief Land Commissioner or Land Commissioners appointed under West Pakistan Land Reforms Regulation, 1959 (C. M. L. A's. No. 64). .
The "Border Allotment Committee" constituted under para. 4 of West Pakistan Border Area Regulation (Zone "B" M. L. A's. No. 9), consists of a member of the Pakistan Army and a person who is not a member of the Pakistan Army viz, the representative of the Rehabilitation Department. Such a body cannot be consi dered to be a Military Authority, because a Civilian cannot get the status of a Military‑man without its being conferred on him. The Committee is not a "Martial Law Authority" contemplated by para. 1 of Martial Law Regulation (C. M. L. A's. No. 88). It follows, therefore, that Regulation No. 88 does not take away the jurisdiction of the High Court to issue a writ, if that jurisdiction exists otherwise with regard to an order passed by a Border Allotment Committee. This applies with equal force to the Chief Land Commissioner and Land Commissioners appointed under Land Reforms Regulation, C. M. L. A's. No. 64. Therefore, the power to issue a writ to the Chief Land Commissioner, or one of the Land Commissioners, if it existed, has not been taken away by Martial Law Regulation No. 88.
(d) Martial Law‑Only "Martial Law Authorities" not subject to writ jurisdiction of High Court‑Orders of other members of 9' Armed Forces not Immune to scrutiny by Court‑[Laws (Continuance in Force) Order (I of 1958), Art. 2 (5)]‑That High Court orders might possibly be ignored not a relevant consideration in taking decisions permissible under law‑[Zahid Umar & Company v. Chief Secretary, West Pakistan P L D 1959 Lah. 764 ref:]
(e) Martial Law Regulation‑Writ may issue to enforce a Martial Law Regulation or Martial Law Order provided power to issue writ to enforce such Regulation or Order has not been taken away‑[Laws (Continuance in Force) Order (I of 1958)]‑Constitu tion of Pakistan, (1956). Art. 170‑[Iftikhar‑ud‑Din v. Muhammad Sarfraz P L D 1961 Lah. 842 and lftikar‑ud‑Din. and another v. Muhammad Sarfraz and another P L D 1961 S C 585 ref.]
(f) West Pakistan Border Area Regulation, 1959 (Zone "B" M. L. A's. No. 9), para. 4‑"Border Allotment Committee"‑Not immune from writ jurisdiction of High Court so far as claim to ' immunity depends upon Art. 2(5), Laws (Continuance in Force) Order (I of 1958) is concerned.
Immunity from writs cannot be extended to persons exercising powers under the authority of a Martial Law Adminis trator of a Zone as has been granted to persons who are mentioned in clause (5) of Article 2 of Laws (Continuance in Force) Order (I of 1958) and as the Border Allotment Committee cannot be held to be acting either under the authority of the Chief Administrator of Martial Law, or that of a Deputy Chief Administrator of Martial Law, clause (5) of Article 2 of the Laws‑(Continuance in Force) Order, 1958, does not take away the jurisdiction of the High Court to issue a writ to the Committee.
(g) West Pakistan Border Area Regulation (Zone "B" M. L. A's. No. 9), para. 15‑Does not take away writ jurisdiction of High Court by reason of Art. 2(4), Laws (Continuance in Force) Order (I of 1958).
Held, that paragraph 15 of Zone B' Martial Law Regulation No. 9 (West Pakistan Border Area Regulation) does not abrogate and could not have been intended to abrogate clause (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, so that notwithstanding paragraph 15 in the power given to the High Court of issuing a writ by clause (4) of Article 2 of the Order would subsist.
(h) Martial Law Regulation‑Martial Law Order‑Interpreta tion‑Language of Regulation or Order open to more than one meaning‑Courts to keep in view circumstances prevalent at time Regulation or Order was issued‑[Ghulam Mustafa v. The State P L D 1960 Lah. 364 ref.].
(i) Laws (Continuance in Force) Order (1 of 1958), Art. 3 (ii) ---Only Martial Law Regulations and Martial Law Orders issued by Chief Administrator of Martial Law fall within ambit of Art. 3 (ii).
(j) Laws (Continuance in Force) Order (1 of 1958) ---‑Provisions of, cannot be set at naught by Regulations by' Martial Law Adminis trators of Zones‑West Pakistan Border Area Regulation (Zone "B" M. L. A's. No. 9), para. 15‑Taking away jurisdiction of Courts . Held power to take away jurisdiction made use pf in para. 15 did not flow from Chief Administrator of Martial Law [Muhammad Ayub Khuro v. Pakistan P. L D 1960 S C (Pak.) 237 r6l.
(k) Laws (Continuance in Force)'Order (1 of 1958), Art. 2 (3)---- Supreme Court may give findings on questions of law not directly arising in case‑Such (obiter) findings binding on other Courts Mian lftikhar‑ud‑Din etc. v. Muhammad Sarfraz P L D 1961 S C 585 ref.
(1) Laws (Continuance in Force) Order (1 of 1958), Art. 3 (ii) --Only Martial Law Regulations and Martial Law Orders which are in accordance with law that governs them covered by Art. 3 (ii) [Manzoor llahi v. The State P L D 1959 Ldh. 243 aad Muhammad Ayyub Khuro v. Pakistan P L D 1960 S C (Pak.) 237 ref.]
(m) West Pakistan Border Area Regulation, 1959 (M. L. A's. No. 9), para. 15‑Does not take away jurisdiction of High Court to issue writ to Border Allotment Committee‑Constitution of Pakistan (1956), Art. 170.
(n) Martial Law Regulation (C. M. L. A's. No. 88)‑Does not hold sacrosanct Martial Law Regulations or Martial Law Orders issued by. Authorities subordinate, to Chief Martial Law Adminis trator.
(o) West Pakistan Land Reforms Regulation, 1959 (C. M. L. A's No. 64), para. 4 (3)‑Chief Land Commissioner‑Land Com missioner‑No writ can be issued to either because of Art. 2 (5), Laws (Continuance in Force) Order (! of 1958)‑Constitution of Pakistan (1956), Art. 170.
(p) Full Bench‑Reference to, of law point‑Full Bench will answer the point of reference, but, if the point referred is one relating to jurisdiction and the reply of Fall Bench was in negative on that point, Full Bench may proceed to dismiss the matter regarding which the point of jurisdiction had been referred to it.
(q) Martial Law Regulation ‑A "statute".
Sarfraz Ahmad for Petitioner.
M. Anwar, Advocate‑General, assisted by S. Zahir Abbas and Ch. Nazir Ahmad Khan Attorney‑General ‑ for Respon dents.
Date of hearing : 26th June 1961.
JUDGMENT
SHABIR AHMAD, J‑‑This Full Bench of three Judges was constituted under the orders of his Lordship the Chief Justice of this Court to consider whether or not this Court had writ jurisdiction with regard to two matters, one being the distribution, of land by a committee constituted under Martial Law Regulation No. 9 dated the 17th of March 1959, called the West Pakistan Border Area Regulation which was issued by General Bakhtiar Rana, Martial Law Administrator of Zone `B' , and the other being the orders passed by the Chief Land Commis sioner and a Land Commissioner acting under the Chief Martial Law Administrator's Regulation No. 64, called the West Pakistan Land Reforms Regulation, 1959. A number of writ petitions had been filed with regard to, the first matter, namely, the allotment of land by the Border Allotment Committee, but none of them had been heard, because the position taken up by the Martial Law Authorities, when a report was called for by this Court from the Border Allotment Committee, was that this Court had no jurisdiction in the matter and, therefore, no report could, be called for. It appears that the order of this Court addressed to the Border Allotment Committee had been sent by both or one of its members to Martial Law Administrator Zone `B' Headquarters, and it was thereafter that jurisdiction of this Court was questioned by the Zone `B' Martial Law Authorities.
2. With regard to the orders of the Chief Land Commissioner, and the Land Commissioner, Multan, the jurisdiction of this Court was not questioned in the manner as it was in the other case but at the hearing of a writ petition before a. Division Bench. This case was Writ Petition No. 714 of 1960 and it was during the hearing of that petition that the jurisdiction of this Court was questioned. It was in these circumstances that Writ Petition No. 714 of 1960, in which notice had issued to the parties, and Writ Petition No. 265 of 1961, which was still at a preliminary stage, were referred to this Full Bench, . so that an authoritative decision may be given.
3. In Writ Petition No. 265 of 1961, the Full Bench had on the 29th of May 1961, passed an order the gist of which was that as some Martial Law Authorities believed that there was a complete ouster of jurisdiction of this Court to issue writs in cases in which orders purported to have been passed by any person or authority under a Martial Law Regulation or a Martial Law Order, it was desirable to settle the question of jurisdiction before proceeding further in the matter. Consequently, notice was sent to the Attorney‑General of Pakistan, the Advocate -General of West Pakistan and the Judge Advocate‑General of the Pakistan Army to enable them to address the arguments that they might deem proper. At the hearing before the Full Bench, the Attorney‑General, of Pakistan appeared not only for the Central Government but also for the Judge Advocate -General of Pakistan Army, while Mr. M. Anwar, Advocate -General of West Pakistan, appeared for the Provincial Government. On the 29th of May 1961, the hearing of the two cases was fixed for the 26th of June 1961 and on the 22nd of June 1961, Martial Law Regulation No. 88 was issued by the Chief Martial Law Administrator of Pakistan. This Regu lation is in the following terms :‑
"(1) Notwithstanding anything in any law for the time being in force no proceedings, whatsoever, shall lie in any Court in respect of any order made or anything done or to be done or intended, expressed or purported to be done, or to have been done by any Martial Law Authority in pursuance of any Martial Law Regulation or Martial Law Order.
(2) For avoidance of 'doubt it is hereby declared that the expression `order made or anything done or to be done or intended, expressed or purported to be done, or to have been done' in paragraph (1) shall include any order made or anything done whether the order or the thing is within the ‑scope of the Regulation or Order or not, or whether the authority making the order or doing a thing had jurisdiction in the matter or not.
(3) This Regulation shall be deemed to have come into force as from the 8th of October 1958."
As questions relating to jurisdiction which arise in Writ Petition No. 714 of 1960 and Writ Petition No. 265 of 1961 are not materially different from each other, the two petitions will be disposed of by this order.
4. On behalf of the respondents, Chaudhri Nazeer Ahmad Khan, Attorney‑General of Pakistan and Mr. M. Anwar, Advocate‑General of West Pakistan, addressed arguments in Writ Petition No. 265 of 1961, while the latter alone addressed arguments in Writ Petition No. 714 of 1960. The contention raised in each of the two cases was that the jurisdiction of‑this Court to pass an order with regard to either of the matteis agitated in these two writ petitions did not exist. The reliance of both the learned counsel was on Martial Law Regulation No. 88 issued by the Chief Martial Law Administrator of Pakistan on the 22nd of June 196 1, which has been reproduced in the last paragraph, as well as on clause (5) of Article 2 of Laws (Continuance in Force) Order, 1958, which clause is in the following terms :‑
"No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either."
The contention was that a Border Allotment Committee appointed under Zone `B' Martial Law Administrator's Regulation No. 9 as well as the Chief Land Commissioner appointed under Regulation No. 64 issued by the Chief Martial Law Administrator and the Land Commissioners working under him were Martial Law Authorities for the purpose of Martial Law Regulation No. 88 and, therefore, the jurisdiction of this Court to issue a writ was excluded by reason of Regulation No. 88 issued by the Chief Martial Law Administrator, even though the order passed or the thing done was not within the scope of the Martial Law Regulation under which it purported to have been done and even if the authority making the order had no jurisdiction to make it. With regard, to the case regarding issue of a writ to the Border Allotment Committee, the reliance of the learned Attorney‑General of Pakistan as well as the learned Advocate‑General of West Pakistan was, in addition on paragraph 15 of the Zone `B' Martial Law Regulation No. 9.
5. Before dealing with the' other contentions raised with regard to the lack of jurisdiction of this Court to issue writs, I will deal with the argument based on Martial Law. Regulation No. 88, which was issued by the Chief Martial Law Administrator on the 22nd of June 1961. The Regulation relied upon is clearly worded, and as with regard to things done or orders passed by any Martial Law Authority the ouster of jurisdiction of Courts is clearly expressed in the Regulation, the question that requires determination on this part of the case is whether a Border Allotment Committee appointed under Zone `B' Martial Law Regulation No. 9 and the Chief Land Commissioner and the Land Commissioners' appointed under Chief Martial Law Administrator's Regulation No. 64 are Martial Law Authorities, because if they are, no question of the exercise of the jurisdiction a by this Court would arise by reason of the fact that if the order passed by the relevant authority was with jurisdiction this Court will not issue a writ even if it had jurisdiction to do so, notwithstanding the fact that the Court did not agree with the order and if the order passed was without jurisdiction the power of the Court to issue a writ with regard to an order passed without jurisdiction would not exist because of Regulation No. 88 issued by the Chief Administrator of Martial Law. The expression "Martial .Law Authority" is not defined either in Chief Martial Law Administrator's Regulation No. 88, or as far as I know, in any other Martial Law Regulation or Martial Law Order issued by the Chief Martial Law Administrator. It is clear that the General Clauses Act (X of 1897) cannot be invoked for interpretation of Martial Law Regulations, because neither that Act nor any Martial Law Regulation or Martial Law Order says that they shall be interpreted in accordance with the tenets laid down in the Act. But even if the General Clauses Act, 1897, had been applicable, the situation in this regard would not have changed, because the expression "Martial Law Authority" is not defined anywhere in that Act. In this uncertain state of law, Courts have, for purpose of determining the meaning of the expression "Martial Law Authority" which occurs in Chief Martial Law Administrator's Regulation No. 88, to find out what the law‑maker intended the expression to mean. When interpreting any provision of law contained in any of the laws enforced by any of the many modes of making laws, the Courts have to find out the intention of the law‑maker. In case of laws which owe their existence to ordinary modes of making laws, i.e., passing of Acts or promulgation of Ordinance, the law contained in laws relating to interpretation, for example the General Clauses Act, 1897, is that some expressions have to be presumed to have a certain meaning unless the context indicates otherwise. I have no doubt in my mind that even when a Court has to find out the meaning of expression used in a Martial Law Regulation or a Martial Law Order one of the well established canons of the interpretation of ordinary statutes namely that the law‑maker is to be presumed to have intended what has been clearly expressed by the words used, has appli cation. It is in the light of the principles detailed above that I will proceed to determine the meaning of the expression "Martial Law Authority" which occurs in Chief Martial Law Administrator's Regulation No. 88.
6. That in the context the task of giving a precise meaning to the expression "Martial Law Authority" which occurs in Regulation No. 88 issued on the 22nd of June 1961, by the Chief Administrator of Martial Law is not an easy matter can hardly be doubted and it was for this reason that Ch. Nazeer Ahmad Khan, learned Attorney‑General for Pakistan, and Mr. M. Anwar, Advocate‑General of West Pakistan, were called upon by the Bench to give their definition of the expression. What the learned Attorney‑General stated was as under :‑
"So far as I know, the words `Martial Law Authority' have not been defined in terms by, any Martial Law Regulation.
If I am correct in my submission, an attempted definition can be as follows. This will have reference to Martial Law Regulation No. 1, clause (c), 'and to Laws (Continuance in Force) Order, 1958, Article 2 (5) :‑
A Border Committee appointed under Martial Law Regu lation No. 9 issued by the Zonal Administrator, Zone B', as empowered by the Chief Martial Law Administrator, Pakistan, would be included in the term 'Martial Law Authority' if the relevant Martial Law Regulation or Order lays down a procedure in pursuance of which that Border Committee is empowered to act.' "
Definition given by the learned Advocate‑General of West Pakistan of the expression "Martial Law Authority" was expressed in the following terms :‑
"According to me the definition of the words "Martial Law Authority" is as follows :‑
An Authority which is clothed with powers to do certain acts by a Martial Law Regulation or a Martial Law Order would be a Martial Law Authority for the purpose of clause (1) of Regulation No. 88.' "
7. The statement made by the learned Attorney‑General is not a clear definition of the expression "Martial Law Authority", but it is manifest that according to him an authority given power by means of a Martial Law Regulation or a Martial Law Order would be a Martial Law Authority provided the Regulation or Order hag laid down the procedure which that authority has to follow when exercising the power given to it. The statement of Mr. M. Anwar, Advocate‑General of West Pakistan, can, however, claim to be a definition according to all accepted senses of the term and the question that requires determination is whether the definition given by the two learned counsel for the respondents should be accepted. Having given the matter my most anxious consideration, I have arrived at the conclusion that the definition given by the learned counsel who appeared for the respondents cannot be accepted as correct. In his statement, the learned Attorney‑General referred to clause (c) of Regulation No. 1 issued by the Chief Martial Law Administrator of Pakistan on the 7th of October 1958. Evidently, the learned Attorney‑General wanted to invoke that part of clause (c) of Regulation No. 1 which is to the effect that a Martial Law Regulation or a Martial Law Order may be issued by any Administrator named in clause (b) or by any other officer authorised by the Chief Martial Law Administrator. If the Chief Martial Law Administrator has authorised an officer to issue a Martial Law Regulation or a Martial Law Order, there can be no manner of doubt that the officer so authorised would be a Martial Law Authority by all canons of interpretation, but the question that requires determination being entirely different, the clause can be of no assistance for resolving the controversy that has arisen. In his statement, which has been reproduced in the last paragraph, the learned Attorney‑General also made a reference to Article 2 (5) of the Laws (Continuance in Force) Order, 1958, but I do not see how that provision can be of assistance for determining the question under consideration. All that the clause mentioned by the learned Attorney‑General, which has been reproduced in paragraph 4, says is that no writ can issue to the Chief Administrator of Martial Law or to the Deputy Chief Administrator of Martial Law or any person having the authority or jurisdiction under the authority or either. The question that arises in the case in which the learned Attorney‑General appeared is whether a Border Allotment Committee set up under Zone `B' Martial Law Regulation No. 9 can be said to be a Martial Law Authority and as far as I can see clause (5) of Article 2 of the Laws (Continuance in Force) Order, 1958, can be of no assistance in that connection. The Martial Law Administrator, Zone `B', is certainly a person exercising power and jurisdiction under the authority of the Chief Administrator of Martial Law and is even otherwise a Martial Law Authority but the same cannot be said of a Border Allotment Committee which, as already indicated, was set up because of a provision contained in Zone `B' Martial Law Regulation No. 9. At this stage, I am only dealing with the question whether or not clause (5) of Article 2 of the Laws (Continuance in Force) Order, 1958, can be of assistance in determining the meaning of the expression "Martial Law Authority" occurring in Regulation No. 88 issued by the Chief Administrator of Martial Law, Pakistan and not with the question whether the clause itself will stand in the way of issuing a writ against either of the authorities against whom the petitions under consideration seek redress and it is clear that one can get no assistance in finding the answer to the question that arises from the clause mentioned by the learned Attorney General.
8. Taking now the definition given by the learned Advocate -General for West Pakistan, I am of the opinion that his definition of the expression "Martial Law Authority" also cannot be accepted. The expression "Martial Law Authority", though uncommon in legal parlance, cannot be said…
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