CRITICAL ANAYLSIS OF GIVEN CASES

(ASSIGNMENT 1)

Course Development of constitutional law

Submitted to: Miss. Munazza Razzaq

Submitted by: Fehmida kanwal

(Registration No: LLB-2017-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of Submission: November 30, 2020

Department of Law

Fatima Jinnah Women University, Rawalpindi

Contents
Abstract .......................................................................................................................................................... i
BEGUM NUSRAT BHUTTO vs. CHIEF OF ARMY STAFF................................................................................... 1
PLD 1977 SC 657 ........................................................................................................................................... 1
FACTS OF THE CASE:...................................................................................................................................... 1
Issues ............................................................................................................................................................. 1
Judgment....................................................................................................................................................... 2
Legal Principles of PLD 1977 SC 657 ............................................................................................................. 3
Critical analysis .............................................................................................................................................. 4
THE STATE vs ZULFIQAR ALI BHUTTO ........................................................................................................... 6
PLD 1978 LAHORE 523 .................................................................................................................................. 6
FACTS OF THE CASE:...................................................................................................................................... 6
ISSUES ........................................................................................................................................................... 7
Judgment....................................................................................................................................................... 7
Legal principles of PLD 1978 Lahore 523 ...................................................................................................... 7
Critical analysis .............................................................................................................................................. 8
References .................................................................................................................................................. 10
Abstract

The era of Bhutto was discussed in this paper in the light of the land mark judgments,
PLD 1977. SC 657 and PLD 1978 Lahore 523. Bhutto created the People's Party of Pakistan,
which Pakistan's biggest and most popular party is still the date. PPP has been coined in
opposition to Ayyub Khan, Pakistan's first military ruler. The Army arrested Bhutto on
September 3rd. Accusations of authorizing a political opponent's murder in March 1974. The
court held in the case of the State vs. Zulfiqar Ali Bhutto, that only Zulfikar Ali Bhutto had to
pay compensation and had also been sentenced to death. Because there was an offence on his
order, he committed. He came out with allegations that he did not fully record the statements. It
was noted that this judgments faced a great deal of criticism as it was claimed that no prosecutor
had failed to prove the accused against Zulfiqar Ali Bhutto and the judiciary had not used an
impartial judicial mind since the emphasis was based on the evidence of four accomplices and
one of them had withdrawn. In the case of Nusrat Bhutto, the Supreme Court Under the doctrine
of State Necessity, thus giving validity to General Zia's Martial of 1977 maintained the authority
of judicial review. Anwar-ul-Haq, Chief Justice, held that the superior courts if challenged in the
light of the principles underlying the law of martial law, the jurisdiction of judicial review has
continued to determine the validity of any act or action of the martial law authorities
Requirement. It has shown that the army has had a great impact on the judiciary, as everybody
has. Successive government martial law followed the footprints of its footprints while dealing
with the judiciary Predecessors adopted the already tested subjugation methods and methods of
subjugating judiciary with more damaging and aggressive way In addition to adopting old
practices each of the military regimes, added new trend of more harmful and more detrimental
act for controlling judiciary.

i
BEGUM NUSRAT BHUTTO vs. CHIEF OF ARMY STAFF

PLD 1977 SC 657

FACTS OF THE CASE:

General Zia ul Haq declared martial law and took over as chief military law administrator
Constitution of 1973 was suspended not abrogated. Federal and Provincial assemblies were
dissolved and Chief Justices of the Provincial High Courts were appointed as acting Governors.
Mr. Zulfiqar Ali Bhutto and ten other leaders of Pakistan people’s party were arrested and
taken into protective custody under order number 12 of 1977. Begum Nusrat Bhutto wife of
Zulfiqar Ali Bhutto filed writ petition under 184(3) of the constitution. On evening of 17th October
1977, the COAS leveled highly unfair and incorrect allegations against the PPP government, so he
did it with male fide intension to stop PPP from participating in elections of 1977. Gave reference
of Asma Jillian’s case COAS has no authority to impose martial law under 1973 constitution. The
action of COAS shall be deal with article 6 of 1973 constitution. Fundamentals rights under 9, 10,
17 and 25 should enforce. He Relied on Dosso case and argued that by proclamation of martial
law, the new legal order come into force and constitution of 1973 is suspended successfully.
Military coup was the need of the time. (Doctrine of the legal revolutionary). The step is taken to
conduct free and fair elections.1

Issues
 Whether the Chief of Staff of the Pakistan Army had authority under the 1973
Constitution to impose Martial Law on the country, or not?

 Whether the intervention by the respondent in civilian government amounts to an

act of treason in terms of Article 6 of the Constitution, or not?

 Whether the arresting and detaining of Mr. Zulfikar Ali Bhutto and Mr. Abdul
Hafeez Pirzada under the Laws (Continuance in Force) Order, 1977, as well as Martial Law
Order No. 12, are without lawful authority?2

1
Begum Nusrat Bhutto Versus Chief of Army Staff and Federation of Pakistan, 1977(657) P L D (S C) 1-80,
(PAK.).
2
id

1
  Whether imposition of Martial Law, arresting and detaining of Mr. Zulfikar Ali
Bhutto and Mr. Abdul Hafeez Pirzada by Chief Martial Law administrator is justified on the
doctrine of necessity, or not?

 Whether the arrest and detention of the top leadership of the Pakistan People's Party
is highly discriminatory and mala fide, or not?

 Whether the orders of detention have resulted in a flagrant violation of the detenus
Fundamental Rights, as contained in Chapter I, Part II of the Constitution, particularly Articles
9, 10, 17 and 25, or not?

 Whether the Court has jurisdiction to grant any relief in this matter owing to the
prohibition contained in Articles 4 and 5 of the Laws (Continuance in Force) Order, 1977, or
not?

 Whether High Court and the Supreme Court have authority under Laws
(Continuance in Force) Order, 1977 to question the validity of any Martial Law Order or
Regulation, or any order made there under by a Martial Law Authority, or not?

 Whether the petition is maintainable under clause (3) of Article 2 of the Laws
(Continuance in Force) Order, 1977, or not?

 Whether the validity or legality of any action which takes place after the 5th of July
1977 can be tested against the guidelines provided by the new Legal Order, or not?3

Judgment

Supreme Court held that the Constitution is still the supreme law of the land subject to
certain circumstances. The word COAS was subtitled by CMLA, and the objection is of a technical
nature. COAS does not have any power to suspend the Constitution. Reliant on the theory of
Kelson. The PM failed to maintain the situation of law and order that led to the constitutional

3
Begum Nusrat Bhutto Versus Chief of Army Staff and Federation of Pakistan, 1977(657) P L D
(S C) 1-80, (PAK.).

2
crisis. There was no provision in the Constitution to cope with that situation. The petition is not
sustainable, and is therefore rejected.4

Legal Principles of PLD 1977 SC 657

1) In any event, Pakistan does not need to look to the Western legal theorists
to find out if a Grundnorm is necessary. Pakistan's own fundamental norm is enshrined in
its own doctrine that Almighty Allah alone owns the legal sovereignty over the entire
Universe and the power exercisable by the people within the limits prescribed by Him is a
sacred trust.
2) The proclamation of martial law does not on its own, involve the abrogation
of civil law and the functioning of civil authorities and of course, does not confer on the
Commander of the Armed Forces the power to abrogate the basic law of the country.
3) The imposition of Martial Law was impelled by high consideration of State
necessity and welfare of the people, the extra‐constitutional step taken by the Chief of the
Army Staff to overthrow the Government of Mr. Z. A. Bhutto as well as the Provincial
Governments and to dissolve the Federal and the Provincial Legislatures stands validated
in accordance with the doctrine of necessity.
4) the new Legal Order is only for a temporary period, and for specified and
limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain
parts thereof in abeyance or to subject it to certain limitations on the ground of State
necessity, the superior Courts continue to remain the Judges of the validity of the actions
of the new regime in the light of the doctrine y of necessity, for the new regime then
represents not a new Legal Order, but only a phase of constitutional deviation dictated by
necessity.
5) Islam has permitted and condoned a departure from their strict observance
and application in cases of extreme necessity and compulsion. The principle of public
welfare follows as a necessary corollary from this. There are several instances when in a
peculiar situation strict compliance with the Qur'anic injunction was found to result in

4
Begum Nusrat Bhutto Versus Chief of Army Staff and Federation of Pakistan, 1977(657) P L D
(S C) 1-80, (PAK.).

3
 greater hardship and mis chief and likely to create more complications the remedy proving
worse than the disease, the Holy Prophet or the Caliphs did not insist on its enforcement
and temporarily suspended it on ground of expediency. The doctrine of necessity is not,
therefore, a juristic concept of the West but is of Islamic origin.
6) Ours is the Islamic Republic of Pakistan, an ideological entity. Its
philosophy is deeply rooted in the Resolution on Goals, stressing Islamic laws and the
concept of morality. We do not and cannot divorce morality from the law in our way of
life. The Pure Theory of Law is therefore not suitable for the genesis of this state. It has no
place in the policy of our body and is intolerable to the judges in this country tasked with
the administration of justice.
7) Judicial authority is quite distinct from jurisdiction. Judicial power always
rests in the courts and the new Legal Order has not removed it. However it must now be
exercised within the context of the new Legal Order.5

Critical analysis

The declaration of martial law was astonishing for some, including the PPP which chose
to challenge it in court. What the PPP didn’t know at the time was that the seat of chief justice
would now be occupied by a General Zia-friendly judge: Chief Justice Yakoob Ali Khan was
swiftly replaced by Justice Anwarul Haq on Sept 20, 1977 the same day as Nusrat Bhutto’s petition
to challenge dictatorship was filed. The constitutional petition was filed by Begum Bhutto under
Article 184 (3) against the chief martial law administrator challenging the legitimacy of the chief
of army staff to declare martial law, as well as the confinement of Zulfikar Ali Bhutto and 10 other
party leaders who were captured on Sept 17, 1977, under Martial Law Regulation No 12.
The application was conceded for hearing. A nine-member bench was established to hear
the appeal; the judges included Chief Justice Anwarul Haq, Waheedudin Ahmad, Mohammad
Afzal Cheema, Mohammad Akram, Dorab Patel, Qaisar Khan, Mohammad Haleem, G. Safdar
Shah, and Nasim Hassan Shah. In her statement, Begum Bhutto took the plea that the army chief

5
Begum Nusrat Bhutto Versus Chief of Army Staff and Federation of Pakistan, 1977(657) P L D
(S C) 1-80, (PAK.).

4
had no right to overthrow the elected government and that all his actions were illegal. The
petitioner contended that the COAS had no authority under the 1973 Constitution to impose martial
law in the country or to promulgate the Laws (Continuance in Force) Order, 1977.
This mediation, Begum Bhutto contended, added up to a demonstration of conspiracy as
specified by Article 6 of the 1973 Constitution. As an outcome, the decree of martial law dated
July 5, 1977, and the laws declared, were all without a legitimate position. Since the martial law
government had no power, the petition said, the detainment of Z.A. Bhutto and 10 other party
leaders were also unlawful. The Supreme Court said that the legitimate outcomes of an unexpected
political change, by the imposition of martial law, have to be judged not by the application of an
abstract theory of law in a vacuum but by consideration of the total milieu preceding the change.
The court held that the “objective” political circumstance was prevailing at the time, its historical
imperatives, compulsions, motivations of persons bringing the change, and the extent of
preservation of suppression of old legitimate order all needed to be considered. During the regime
of Zulfiqar Ali Bhutto the judicial appointment was politicized. A number of office bearers and
members of the Pakistan People’s Party were appointed as judges of the High Courts with obvious
intention that they would uphold the policy and objectives of the party. At the end of 1976 the
Chief Justice of Lahore High Court retired and Zulfiqar Ali Bhutto appointed a junior judge as the
Chief Justice of Lahore High court. The new Chief Justice superseded more than half a dozen of
the judges of the High court some of whom were more competent than him.

In 1977, Zulfiqar Ali Bhutto made an even more arbitrary appointment in the judiciary.
An advocate was appointed as a judge of a Lahore High Court, who had been elected to the Punjab
Provincial Assembly from the platform of Bhutto’s PPP and whose election was set aside by the
election tribunal on account of malpractices in his election campaign. This appointment was a
shock to the public, to the judiciary, and to the bar. Due to severe criticism from the various
segments of the society, the said judge resigned within few days of his appointment. But the
process of undermining the independence of the judiciary had begun.
Every martial law regime abrogated or suspended the Constitution of Pakistan and
promulgated new legal order either under the title of Laws (Continuance in Force) Order or under
the name of (PCO). All military dictators declared that the country would be run as much as
possible under the abrogated or suspended constitution- paradoxically the political basis for the
constitution was not considered viable but its administrative rules were adequate. Unlike the other

5
organ of the state i.e. legislature, the judiciary was allowed to function but was deprived of the
power to challenge the military government. Under all martial law regimes all courts including
Supreme Court and High Court were allowed to exercise their respective powers and jurisdictions
provided that no court or tribunal would have the power to pass any order/judgment against
military dictator.

THE STATE vs ZULFIQAR ALI BHUTTO

PLD 1978 LAHORE 523

FACTS OF THE CASE:

1. That Zulfiqar Ali Bhutto, Mian Abbas and Ghulam Mustafa were challenged by the federal
investigation agency (FIA) for trial for the offences under sections 120-B, 302, 109, 301
and 307 of PPC for planning to murder Ahmed Raza Kasuri who was member of national
assembly.
2. That a murderous attack was made on him by firing on his car on the night and as a result
his father Nawab Muhammad Ahmad Khan was murdered.
3. That Zulfiqar Ali Bhutto was holding the office of the Prime Minister of Pakistan on the
fateful day till the 4th and 5th of July, 1977. The other accused were members of federal
security force.
4. That on the night between 10th and 11th November, 1974 Ahmad Raza Kasuri was returning
from a wedding in his car and he was fired with automatic weapons near Shadman- Shah
and as a result his father received injuries that resulted in his death at the same time.
5. That a written statement was given by Ahmad Raza Kasuri and on the basis of that an F.I.R
was recorded.
6. That the complainant was sniped for the political reasons as he was Member of the
opposition in the National Assembly. He was used to criticize government badly.
7. That the Ahmad Raza Kasuri was the founder member of the Pakistan’s Peoples Party and
been elected on the ticket of that party as a member of National Assembly.6

6
The State Versus Zulfiqar Ali Bhutto and Others, 1978 (523) P L D(LAH),1-100, (PAK.).

6
 8. That after elections held in December, 1970 he developed stressed relations with the
principal accused and in order they made a plan to murder him.
9. That the firing resulted in the death of Nawab Muhammad Ahmad Khan while the
complainant remained unhurt.
10. That the only nominal investigation of the case was filed in September, 1975.

ISSUES

Whether actus reus executed or not-Not material offence committed in course of performance of
unlawful act-Held, becomes responsibility of initial conspirators as abettors?7

Judgment

The court found that only Zulfiqar Ali Bhutto had to pay the fee because on his order, the crime
was committed. The action of the principal accused has already been briefly checked. He had
threatened us as well as insulted us and had been untruthful at times. He also proved himself to
be a compulsive liar. All the three statements made by the defendant are full of repetition of the
Court's false and scurrilous allegations. In response to the questions referred to in section 342,
the first two statements were made, although they were absolutely irrelevant, and the last
statement was allowed to be dictated after the closure of the defense evidence, when all the legal
avenues for making such a statement before the Court were legally closed and yet he came out
with allegations that the statements were not fully recorded.8

Legal principles of PLD 1978 Lahore 523

(1) This was the only course open to the Court, since in accordance with the above-
mentioned rule, it does not have the power to force the accused to act as counsel if he is
unwilling to accept them. As pointed out by the Bench B Division of the Lahore High
Court in Iftikhar-ad-Din v. State (P L D 1954 Lah. 547), if the defendant reluctantly

7
The State Versus Zulfiqar Ali Bhutto and Others, 1978 (523) P L D(LAH),1-100, (PAK.).
8
id

7
 refuses to accept the offer of legal advice made to him and is unwilling to accept the
representation provided by the Court, he must be left to conduct his case himself.
(2) Section 307 deals with offence of attempt to murder which can be investigated by the
Agency under section 3 of the Act which empowers the Agency not only to investigate
offences specified in the Schedule but also "an attempt or conspiracy to commit, and
abetment of any such offence.
(3) What is necessary before a Magistrate takes cognizance is that an offence should be made
out of the report submitted to him, although incomplete.
(4) The mere fact that the investigation was performed by a police officer not competent to
investigate l is not a. Walizar v. State, a defect that could vitiate the trial.
(5) The Magistrate may take cognizance of the incompleteness of the case and refer the case
to the Court of Session pursuant to Section 193, Cr. Oh! P. C.
(6) Where the judgment is an inter-party judgment, the statements or admissions or
acknowledgments made by a party or its predecessor in his pleadings in a previous
litigation are admissible even in recitals in such a judgments.
(7) The corroboration must, therefore, be of material particulars implicating the accused in the
commission of the offence. The other rules laid down in the same case are that the
corroboration need not be bye direct evidence that the accused committed the crime
Circumstantial evidence is also sufficient, if it confirms the connection of the crime with
the accused. The evidence of an accomplice cannot, however, be corroborated by the
testimony of another accomplice.
(8) The language of section 30; Evidence Act does not warrant a distinction between a
confession made before the trial by a convicted person and in the course of the trial.
Therefore a confession made before the Court or at the end of the prosecution case may
be said to be a confession "proved" under the scope of section 30, Evidence Act.9

Critical analysis

Federal Security Force concerned with affair at instance of principal accused--

Complainant, an opposition member of National Assembly, a strong and virulent critic of principal

9
Hamid khan, Constitutional and political history of Pakistan, Abdul Wahid Siddiqui,3 rd ed,2017.
8
accused's policies and regime and offering him provocation day in and day out Complainant
threatened with death in case of his persistence in opposition to principal accused and attacked
thrice and therefore ever finding himself in danger of being killed and taking precautions to guard
himself against attacks Principal accused's men watching complainant's movements and measures
adopted by him to protect himself-Two accused persons turning approvers, three confessing guilt,
one reselling from his confessional statement Oral, documentary, and circumstantial evidence
revealing conspiracy between all accused to murder complainant with arms and ammunition
supplied from armory of Federal Security Force Three confessing accused admitting having made
voluntary statements and confessing role played by them in murder. Evidence of approver, directly
concerned with affair, corroborated fully by circumstantial, documentary, and oral evidence with
regard to details about time, place, and manner of attack Principal accused having a motive to kill
complainant having asked his subordinate officers to finish complainant and other accused acting
as hired assassins offence of conspiracy to murder complainant, held, proved up to the hilt and all
accused sentenced to death.

9
References

Chaudhary, G.W., Constitutional Development in Pakistan, Tariq Mehmood 3rd ed, London group
Ltd.,2011.

Hamid khan, Constitutional and political history of Pakistan, Abdul Wahid Siddiqui,3rd ed,2017.

The State Versus Zulfiqar Ali Bhutto and Others, 1978 (523) P L D(LAH),1-100, (PAK.).

Begum Nusrat Bhutto Versus Chief of Army Staff and Federation of Pakistan, 1977(657) P L D (S C) 1-80,
(PAK.).

10