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The State v. Dosso and others (PLD

1958 SC 533)
Introduction:

State v/s Dosso is a simple case of murder committed by a person named, Dosso in
Balochistan. He was convicted under the tribal system of justice by Loya Jirga as
enumerated in FCR (frontier crimes regulation); but his relatives approached the Lahore
high court which repealed the decision of Loya Jirga, later on, on the appeal of Federal
Government, the Supreme Court reversed the decision of Lahore High court. The case got
prominence because it indirectly questioned the legitimization of Martial law imposed by
Iskandar Mirza on 7th Oct 1958.

Background:

A murder took place in the Lora lai district of Balochistan by a person named as Dosso. He
was arrested and was handed over to the Council of Elders (Loya Jirga). The Tribal
authorities charged him under FCR, 1901. The relatives of Dosso upon this filed a writ
petition in Lahore High Court against the decision of Loya jirga. Lahore high court heard the
case under the constitution of 1956 and held its verdict in favour of Dosso. Lahore high
court also declared FCR as unconstitutional. The Federal Government filed an appeal against
this decision in SC of Pakistan. SC decided the case in favour of the federal govt.

Main Events/Facts:
1. Arrest and Conviction of Dosso: Dosso and others were convicted under Section 11
of FCR 1901 and handed over to Loya Jirga. The Jirga convicted Dosso.

2. Petition in Lahore High court against FCR: The relatives of Dosso filed a petition
against the proceedings of the council of elders regarding Dosso case in Lahore High Court.
They challenged the references and the convictions on the grounds that the relevant
provision of the FCR was void being repugnant in the “Equity before Law” and the “equal
protection of Law” and the right to counsel embodied in Articles 5 and 7 of the 1956
Constitution.

3. The decision of Lahore High Court: The High Court decided the case in favour of
Dosso and declared FCR repugnant to the 1956 constitution. Article 5 and 7 of which
ensured the equality of all before the law. Thus Lahore High Court decided the proceedings
of the council of elders as null and void under FCR, 1901.

Effect of Lahore High Court:

The effects of this decision were that, after the declaration of FCR as repugnant to the
constitution; then the validity of those cases was questioned, which were decided under
FCR since long before it was enacted, and especially since 1956 when the new constitution
was promulgated.
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Appeal in the Supreme Court of Pakistan:

The Federal Government of Pakistan went into an appeal in SC against the verdict of the
Lahore High Court. The Supreme Court decided on 13th October 1958 as the date for
hearing the case. But prior to that on October 7, 1958, a drastic change came in the political
history of Pakistan; when 1st martial was Imposed in the country.

Promulgation of Martial Law:

On October 7th 1958 the President of Pakistan Iskandar Mirza declared Martial Law in the
country and made AYUB KHAN as Chief Martial Law Administrators (CMLA). The central
and provincial legislature was dissolved with the abrogation of the 1956 Constitution.

Laws (Continuance in Force) order:

Three days later the Laws (continuance in Force) order was issued according to which all
other laws except those of 1956 constitution were validated and also the jurisdiction of all
courts was restored. Thus, law (continuance in force) order 1958 was the NEW LEGAL
ORDER, which replaced the old legal order i.e. the 1956 constitution.

Some technical points:

Followed by the imposition of Martial Law some technical points raised in Dosso case
throughout the country.

a. If Supreme Court would have upheld the decision of the Lahore High Court in Dosso's
case, it means the 1956 Constitution was still in force as the Lahore High Court decided the
case in accordance with Article 5 and 7 of the 1956 constitution.

b. And if the 1956 constitution was still enforcing then what was the role of Martial law
regulation i.e. Laws (continuance in Force) Order 1958. In short, it would have been a
challenge to the Martial Law administration.

Judgment of the Supreme Court:

The Supreme Court decided the case unanimously against the verdict of Lahore High Court.
The Supreme Court decision was based on Hans Kelson’s Theory of Legal Positivism.

● Main points/aspects of the judgment:

i. Legislation of 1958 martial law: The judgment held that 1958 Martial law imposition
is a kind of revolution (peaceful revolution) which is not resisted or opposed by the common
people; this clearly defines that the people are happy with this change, thereafter this
revolution or martial law is legal as long as it satisfies the common people.

ii. Kelson’s Theory of Legal Positivism: According to Kelson’s theory:

“If there is no change in the constitution or the government with meta-legal means and
ways and if there is no opposition resistant to this change internally by the people plus no
disturbance in the territorial integrity of the country, then such a change is a successful
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revolution and is recognized by the International law”. Thus the Martial Law coup of 1958
was legalized by the Supreme Court under the Chief Justiceship of Justice Munir.

iii. Recognition of Laws (continuance in force) order: The Supreme Court held that the
Laws (Continuance in Force) order 1958 was the NEW LEGAL ORDER and the validity of laws
and the correctness in the judicial decisions would be determined according to it.

iv. Restoration of FCR: The Supreme court also held that as the 1956 constitution was
abrogated therefore FCR 1901 was still in force in accordance with the laws (continuance in
force) order, 1958.

v. The Decision of LOYA JIRGA Is Valid: The court also made a reference to the decision
of the council of elders, that its decision is valid and up to the mark.

● Critical Analysis/Commentary/Impacts of SC verdict:

i. Recognition of Martial Law: The judgment of SC recognized the Martial Law as legal
and valid action; this had far-reaching effects on the political history of Pakistan. It opened
the gates for the future Martial Law’s in the country; also the recognition of Martial Law
provided with absolute powers in the hands of Martial Law administrator who generously
used it for next 10-11 years.

ii. Halt Democratic process: The verdict of SC halted the democratic process of
Pakistan which had recently been on the road after the promulgation of 1st constitution of
Pakistan on 23rd march 1923 and threw the country onto the track of dictatorship.

iii. Deprivation from Constitution: As a result of the judgment, Pakistan was deprived of
its 1st independent constitution framed and promulgated after so many efforts, and a long
struggle of 11 years.

iv. Encouraged Military intervention: The verdict of SC encouraged the subsequent

military interventions in the politics of Pakistan; which occurred three times i.e. General
Yahya 1967, General Zia 1979 and finally General Musharraf in 1999, after this sad event.
These interventions potently damaged the democratization in Pakistan.

v. FCR Revalidated: The judgment of SC revalidated the British Imperial legacy, the
curse, i.e. FCR; popularly known as black law, in the tribal areas of Frontier and Balochistan;
which is still enforced even today. Had it not been declared as valid in 1958, the
disturbances in these regions would have not existed, if these people were brought under
the arena of the normal judicial system of Pakistan.

vi. Damaged Independence of Judiciary: The verdict was a serious blow to the
independence of the judiciary. The judiciary was bound to render its services under the new
legal order of, Laws (continuance in force 11 Oct 1958); even if the judges have to give
decisions against the basic principles of justice, they were bound to do so.

vii. Curbing of Appellate Jurisdiction: The decision also took away the power of the
courts to hear appeals against the cases/actions of Federal Govt.
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viii. Laughing stock for the civilized world: The judgment provided a laughing stock for
the civilized world on Pakistan; Because of the recognition of Martial Law on the basis of
Hans Kelson’s outdated theory, which is an irrelevant principle.

ix. Judiciary Bow down in front of Executive: Once again the judiciary bowed down in
front of a strong executive in this case.

x. Disturbed ties between East and West Pakistan: The abrogation of the 1956
constitution also led to the upset of agreements between East and West Pakistan; which
were resolved after long struggle under the 1956 constitution. The grievances of East
Pakistan have almost pacified in 1956 consensus-based constitution by incorporating both
Urdu and Bengali as national language etc. Had the Martial Law was not legalized at that
time, we would have not lost East Pakistan.

Conclusion:
In this case, the Pakistan Supreme Court used Jurist Hans Kelson’s theory that a revolution
can be justified when the basic norm underlying a Constitution disappears and a new system
is put in its place. When the revolution came then the old system will be replaced with a
new system.

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Asma Jilani v. Government of Punjab

(PLD 1972 SC 139)
Introduction:

Judiciary plays a very important role in the interpretation of the statutes and laws. The
judiciary has a pivotal role in the development of law. It develops law by giving judgments
which become precedents. So precedents may be regarded as a source of law. In Pakistan to
the superior Courts gave judgments which became precedents. There have been a lot of
important and leading cases in the history of Pakistan. Asma Jilani vs. Government of the
Punjab case is one of them.

Facts of the case:

The facts of the Asma Jilani vs. Government of Punjab case are the following:

i. Challenge of Malik Altaf Gauhar’s Detention: The appeals were filed because of the
detention of Malik Altaf Gauhar and Malik Ghulam Jilani. The detention of both of them
was challenged.

ii. Persons challenged the detention: The persons who challenged the detention were
Miss Asma Jilani, who filed an appeal for the release of Malik Ghulam Jilani and the other
one was Zarina Gauhar, who filed an appeal for the release of her husband Altaf Gauhar.

iii. Court in which Petition filed: The writ petition was filed by Asma Jilani in the Lahore
High Court for the release of her father Ghulam Jilani and Mrs. Zarina Gauhar filed an appeal
in Sindh-Balochistan High Court.

iv. Law under which Mr. Altaf Detained: Altaf Gauhar and Malik Ghulam Jilani were
detained under Martial Law Regulation No. 78 of 1971.

Principles of law or rule of law:

Following are the Principles of law or Rule of law

i. Principle laid down in State vs. Dosso: It was held in this appeal that principles,
which were laid down in State vs. Dosso, were not justified.

ii. Constitution of Pakistan 1962: It was settled in this appeal that courts gave full
effect to the constitution of 1962, and all laws made and acts of various civil and military
governments became lawful and valid due to that recognition, which constitution of 1962
and courts gave them.

iii. Court Duty: It was held in this appeal that court’s judicial function was to adjudicate
upon a real and present controversy, which a litigant raised before it, and if litigant did not
choose to raise a question, it was not for the court to raise it suo motu.
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iv. Bias in Judge: It was settled in this appeal that mere association with the drafting of
law could not disqualify a judge from interpreting that law in light of those arguments,
which presented before him.

v. Jurisdiction: It was held in this appeal that superior courts are the judge of their own
jurisdiction.

vi. Proclamation of Martial Law: It was decided in this appeal that General Yahiya
Khan’s proclamation of Martial Law was illegal.

vii. Doctrine of Necessity: Although the doctrine of necessity was once again pleaded to
defend the military regime of General Yahiya Khan, yet the same was rejected through the
judgment of this appeal.

Conclusion:
To conclude, it can be stated that judgment of case of Miss Asma Jilani was announced after
the end of General Yahiya Khan’s rule, yet it initially led to the end of Bhutto’s martial law
and finally, it paved the way for the restoration of democracy and for the adoption of the
constitution of 1973.

Due to the judicial pronouncement in the case of Asma Jilani, Bhutto was compelled to
remove the Martial law.

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Begum Nusrat Bhutto vs. Chief of Army

Staff etc. (PLD 1977 SC 657)
Introduction:

After independence of Pakistan, Pakistan is weal political institution, powerful Army, several
military coups and infamous Article 58(2) (b) of the Constitution of Pakistan 1973. Due to
these factors, the constitution development was stopped in Pakistan. Judiciary plays an
important role in the interpretation of statutes and laws. These have been a lot of important
and leading case in the History of Pakistan. Begum Nusrat Bhutto vs. Chief of Army Staff and
Federation of Pakistan case in one of them.

Facts of Case:
Following are the facts of case of Begum Nusrat Bhutto vs. Chief of Army Staff

i. Allegation of Official Interference with Elections of 1977:

Opposition parties alleged that there was official interference with elections of 1977 in
favour of the ruling party of Prime Minister Zulfiqar Ali Bhutto.

ii. Anti-Bhutto Movement:

Opposition parties never accepted results of elections of 1977. Therefore, they started anti-
Bhutto movement.

iii. Military Coup:

Prime Minister Zulfiqar Ali Bhutto’s dialogues with opposition leaders failed to stop military
interference, and eventually General Zia-ul-Haq dismissed his government through military
coup and imposed martial law.

iv. Arrest of Zulfiqar Ali Bhutto:

With imposition of martial law, Zulfiqar Ali Bhutto was arrested.

v. Release of Zulfiqar Ali Bhutto:

After some days, the military government released Zulfiqar Ali Bhutto.

vi. Re-arrest of Zulfiqar Ali Bhutto:

After his release, Zulfiqar Ali Bhutto started public campaign, and this campaign eventually
caused not only his re-arrest, but also arrest of his colleagues.

vii. Institution of Case:

Against re-arrest of Zulfiqar Ali Bhutto, Begum Nusrat Bhutto filed this case against Chief of
Army Staff.
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Decision of the Supreme Court:

Following are the decision of the Supreme Court

i. Rectification of Objections:

It is clear that objection is only in the nature of technicality. The Chief of Army Staff is also
Chief Martial Law Administrator (CMLA) and the objection could be rectified by adding
words CMLA to the description of respondents as stated in petition.

ii. Kelson’s Theory:

The theory of revolution legality can have no application to a situation where the breach of
legal continuity is admitted to be of purely temporary nature and for specified limited
purposes. It will be inappropriate to seek to apply Kelson’s theory to such transient and
limited change in legal continuity of country thus giving rise to unwarranted consequences
of far reaching character not intended by those responsible for temporary change.

iii. Failure to maintain Law and Order:

The Prime Minister faced difficulty to maintain law and order. There was a political crisis in
the country, leading to constitutional breakdown. A situation had arisen for which
Constitution provided no situation. It was in these circumstances that Chief of Army Staff
General Muhammad Zia-ul-Haq intervened to save country from chaos and bloodshed to
safeguard integrity of Pakistan and to separate warring factions, which had brought country
to brink disaster.

iv. Arrangement of Fair Election:

Chief Martial Law Administrator has stepped in for a temporary period and for the purpose
of arranging fair elections.

v. Jurisdiction of (Law continuous in force order):

The Chief Martial Law Administrator was justified in providing in Article 2(3) of Law
(Continuous in Force) Order 1977 that right to enforce fundamental rights shall be
suspended.

Conclusion:
On November 10, 1977 the Supreme Court unanimously validated the imposition of martial
law, under the doctrine of necessity. The law of necessity recognized and upheld by
Pakistan’s highest judicial body has proved an honorable protection for military adventure in
civil government.it was the illegal action called law of necessity.

To conclude that Martial law as enforced due to state necessity and for the welfare of
people. The Supreme Court made a decision in favor of federation.

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Zafar Ali Shah vs. General Pervez

Musharraf (PLD 2000 SC 869)
Background:
In 1999, the military once again became the sole master of the affairs of the country. On
October 12, 1999, General Pervez Musharraf seized the control of the civilian government
of publicly elected Prime Minister Nawaz Shareef. In address on nation on 13 October
1999, General Pervez Musharraf announced that PML (N) government had been removed
and the Armed Forces had moved in and taken control of the affairs of the country. On 14
October, he proclaimed emergency throughout Pakistan and assumed the office of Chief
Executive. He proclaimed that the Constitution would be held in abeyance but the president
would however continue in office, Parliament and all provincial assemblies stand
suspended.

Facts of the Case:

A number of petitions had been filed by Nawaz Shareef and other PML (N) leaders invoking
Article 184(3) of the Constitution of Pakistan, challenging the military takeover on 12
October 1999 and seeking restoration of the assemblies. Following ouster of Muhammad
Nawaz Sharif on October 12, 1999, the Supreme Court was moved through Zafar Ali Shah
case “Zafar Ali Shah vs. General Pervez Musharraf”.

Framing of issues:
In this case, the Court addressed various legal and constitutional issues:

1. Firstly, the country was facing a situation where the military intervention became
inevitable and was justified on the basis of necessity doctrine, which is recognized not only
in Islam but also in other religions, and the same has also been recognized by prominent
international jurists such as Hugo Grotius, Chitty, and De Smith.

2. Secondly, the Federal Government provided sufficient material in support of the

military intervention through extra constitutional arrangements, which were relevant and
admissible for justification of military intervention.

3. Thirdly, all the executive actions, which were indispensably taken for running the
state’s affairs and public welfare, were declared valid.

4. Fourthly, the Constitution remained the highest and ultimate law of the land but on
the basis of state’s necessity some of its parts held in abeyance.

5. Fifthly, the judiciary has to carry on its functioning under the Constitution and the
same position has not been derogated by the Oath Order 20.

6. Sixthly, the superior courts judges who either refused to take oath under the oath
order or to whom the oath has not been given are hit by past and closed transaction’
doctrine, cannot be reappointed.
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7. Seventhly, the government should advance the accountability mechanism, in order

to ensure transparency and the superior courts judges are neither above the law nor the
Constitution and are subject to accountability as envisaged by Article 209 of the
Constitution.

8. Eighthly, removal of Musharraf without observing principle of natural justice was ab

initio void having no legal effects.

9. Ninthly, the Chief Executive shall hold election within three years and the Court
reserved the authority to review the continuation of emergency of October 1999 at any
subsequent stage.

Decision of Court:
1. The Supreme Court led by Justice Irshad Hasan Khan and also including Justice
Iftikhar Muhammad Chaudhry not only “rejected” the petition but also empowered the
fourth dictator of Pakistan to himself amend the constitution.

2. It was held by this Court that on 12th October 1999 a situation arose for which the
Constitution provided no solution and intervention by the Armed Forces through an extra-
Constitutional measure became inevitable and the said act was validated on the basis of the
doctrine of state necessity and the principle “salus populi suprema lex” as embodied in
Begum Nusrat Bhutto’s case.

3. It was further held that the 1973 Constitution still remains supreme law of the land
subject to the condition that certain parts thereof have been held in abeyance on account of
state necessity.

4. The Court, however, limited the scope of the regime, required to conduct the
elections within three years.

Conclusion:
In Zafarullah Khan Case, “doctrine of necessity” upheld. The law of necessity recognized and
upheld by Pakistan’s highest judicial body has proved an honorable protection for military
adventure in civil government.

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