Syllabus Revision Program by Islami Jamiat Talba,

For Batch 19-24,

Punjab University Law College.

Subject: Constitutional Law (LL.B Part IV)

CASE LAWS

Molvi Tameez-ud-Din VS Federation of Pakistan

INTRODUCTION.

Maulvi tameez-ud-din vs Federation is one of important case of history of Pakistan. At that time
when moulvi tameez-ud-din was the prime minister of Pakistan, Governor General Ghulam
Muhammad dissolved his assembly. Maulvi tameez-ud-din sued petition in chief court of sindh
against the decision of the Governor General.

BACKGROUND:

The Indian Independence Act, of 1947 established two independent dominions from the
erstwhile Indian sub-continent: India and Pakistan. Two separate Constituent Assemblies were
set up in these dominions to frame their future constitutions. Pakistan Constituent Assembly

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could not conclude any final draft. After seven long years of internal bickering and a failed
attempt at reconciliation, the Constituent Assembly was finally ready to promulgate the
constitution of Pakistan. Contrary to expectation, The Governor-General, Ghulam Muhammad,
imposed an emergency in the country and dissolved the Constituent Assembly. The Governor-
General cited various reasons for doing so but did not mention any law or authority whereby he
was dissolving the Constituent Assembly. He appointed a fresh Council of Ministers and
restrained the President of the Constituent Assembly, Maulvi Tamizuddin, from exercising his
official duties. Aggrieved, Maulvi Tamizuddin Khan invoked the original jurisdiction of the
Chief Court of Sindh, seeking writs of quo warranto and mandamus against the Federation of
Pakistan and newly appointed ministers.

FACTS OF THE CASE:

Following are the important facts of the case of moulvi tameez-ud-din vs federation

i Dissolution Of The Constituent Assembly.

Governor General Ghulam Mohammad of Pakistan dissolved the constituent assembly on

Oct 24 1954. There were some clashes between the prime minister and governor-general
which were caused by the dissolution of the constituent assembly.

ii Governor General Also Dissolved Cabinet In 1953.

The Governor-general dissolved the cabinet in 1953 before the dissolution of the constituent
assembly of maulvi tameez-ud-din, the governor-general of Pakistan in 1953 also dismissed
the cabinet of Nizam-ud-Din

iii Reconstitution Of The Council Of Ministers.

After the dissolution of the constituent assembly, the Council of Ministers was reconstituted.

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iv Action Taken By The Maulvi Tameez-Ud-Din.

Maulvi tameez-ud-din who was the head of the constituent assembly filed a writ petition
before the chief court of Sindh. This petition was against the federation.

v Writ petition.

Maulvi tameez-ud-din filed the writ petition in the chief court of Sindh under section 223.A
of the Government of India Act 1935.

vi Numbers Of Writs Filed.

He filed two writ petitions in order to redress his grievance. They were as follows.

• Writ of mandamus.

A writ of mandamus was filed by the maulvi tameez-ud-din, in order to restrain the
enforcement of the proclamation of the governor-general. It was also prayed that the
federation and the members of he reconstituted council of ministers should be prohibited
from meddling in the functions of maulvi tameez-ud-din.

• Writ of quo warranto.

A writ of quo warranto was also filed by the maulvi tameez-ud-din demanding that the
ministers should be asked as to under which authority they were holding the offices.

ARGUMENTS GIVEN BY THE STATE.

The federation and the council of ministers gave arguments in respect of writs filed by maulvi
tameez-ud-din.

Following were the arguments given by the federation.

i Dissolution of the constituent assembly was right.

It was argued that the constituent assembly was dissolved in a right way.

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ii No writ jurisdiction of the chief court.

It was further argued that the chief court had no jurisdiction to entertain the writ petition.

iii Invalidity of section 223-a.

It was further argued by the federation that section 223-A which was put into the
Government of India Act 1935, was invalid due to the non-assent of the governor-general
which was very necessary for all laws.

DECISION OF THE CHIEF COURT.

The Chief Court of Sindh declare null and void the step taken by the Gulam Muhammad
governor general and the assembly was restored.

APPEAL OF FEDERATION BEFORE THE FEDERAL COURT.

The federation and council of ministers appealed before the federal court against the decision of
the Chief Court Sindh.

6. DECISION BY THE FEDERAL COURT.

i Governor general’s assent is necessary.

It was observed that the constituent assembly also performs its functions as the legislature
and all laws passed by it require the assent of the governor-general.

ii Sec 223-a of the Government of India Act was not law.

Section 223-A of the Government of India Act 1935 was not law due to the non-assent of the
governor-general.

iii No jurisdiction of the chief court.

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 It was further observed that the section 223-A is not a law therefore the chief court did not
have any jurisdiction to issue writs.

iv Constituent has no sovereignty.

According to the federal court, the constituent assembly is not sovereign but the governor-
general is a sovereign authority.

EFFECT OF THE DECISION.

In the decision of the federal court, the decision of the chief court of Sindh was suspended.

BENCH OF FEDERAL COURT.

• Chief justice. Mohammad Munir

• Justice. Mohammad Sharif • Justice. S.A.Rehman

• Justice. S.M.Akram
• Justice. R.Cornelius

CONCLUSION.

In the end, we can say that the federal court decided the case in favor of the federation and the
Council of Ministers. The dissolution of the constituent assembly was held right and it dismissed
the writ petition.

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 Asma Jillani VS Federation of Pakistan

(PLD 1972 SC 139).

INTRODUCTION:

Asma Jilani's case paved the way for the restoration of democracy in the country. This case was
followed by the interim Constitution of 1972 and then by the permanent Constitution of 1973.
Due to the judicial pronouncement in the case of Asma Jilani, Zulfikar Ali Bhutto was compelled
to remove the Martial law.

BENCH OF SUPREME COURT

• Chief Justice: Hamood ur Rehman

• Justice: Waheed ud Din Ahmad

• Justice: Muhammad Yaqub Ali

• Justice: Salahud din Ahmad and

• Justice: Sajjad Ahmad

FACTS OF CASE

The facts of the Asma Jalani v/s 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
Jillani. The detention of both of them was challenged.

ii Persons challenged the detention

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 The persons who challenged the detention were Miss Asma Jilani who filed appeal for the
release of Malik Ghulam Jilani and the other one was Zarina Gauhar who filed 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 release of her father
Ghulam Jillani and Mrs Zarina Gohar 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.

ARGUMENTS OF PETITIONER

i Daughter of Ghulam Jillani challenged the order on the following grounds in Lahore
High Court. Martial Law Administrator has no such authority.
ii The detention is illegal.

ARGUMENTS BY RESPONDENT

i The Punjab government presented the following arguments.

ii Detention is legal.
iii Martial law Administration has the authority to pass such order of detention.

DECISION OF THE HIGH COURTS

Following are the decisions of the courts. Details are as under.

• Lahore High Court

Lahore High Court relying on the decision of the case of State Vs Dosso Holding the
jurisdiction of courts (Removal of doubts) order 1969 as valid and stated that is out of from
the jurisdiction of the court.

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• Sindh High Court

Sindh High Court also dismissed the petition of Altaf Gohar and held that it had no
jurisdiction to grant relief against a Martial Law order for same reasons as given by the
Lahore High Court.

APPEAL IN THE SUPREME COURT

Both of the petitioners appealed to the Supreme Court on the grounds given below.

i Dosso has no application in the said case.

ii Army cannot interfere with the fundamental rights of the people.
iii The Chief of Army Staff is under an obligation and he is bound to safeguard the
constitution.
iv Laws of the state are not annulled because of the proclamation of the Martial Law.

DECISION OF SUPREME COURT

• Writ was admitted and detention was declared illegal and the following remarks were given
by the Supreme Court in this regard.
• No action harmful to the life, liberty, body, reputation or property of a person shall be taken
except in accordance with the law
• No person shall be prevented from, or be delayed in, doing that which is not prohibited by
law
• No person shall be compelled to do that which the law does not require him to do.

RULES LAID DOWN IN THE JUDGMENT

i 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

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

iii Court Duty

It was held in this appeal that the court’s judicial function was to adjudicate upon a real and
present controversy, which a litigant raised before it, and if the litigant did not choose to raise
a question, it was not for the court to raise it suo motu.

iv Bias in Judge

It was settled in this appeal that mere association with drafting of a 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 judge of their own jurisdiction.

vi Proclamation of Martial Law

It was decided in this appeal that General Yahya Khan’s proclamation of martial law was
illegal. So, martial Law Regulation no 78 is invalid.

vii Doctrine of Necessity

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

viii Kelson’s Theory

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 Kelson’s concept of grundnorms was not internationally accepted. Pakistan has its own
norms and is supported by objective resolution Allah Almighty holds sovereignty over the
entire universe.

IMPACTS OF THE CASE

The decision of the court was not completely in favor of Asma Jillani but it has a broader impact
in that it has weakened the concept of dictatorship in an Islamic State and it opened a new
window for the fresh air of democracy in Pakistan. Furthermore, this decision also disregarded
the law of necessity by discrediting the imposition of Martial Law in any situation

CONCLUSION

Asma Jillani case proved a landmark in the history of the Pakistani judiciary. Pakistan Supreme
Court overruled state v.s dosso. Before the pronouncement of the judgment in this case Yahya
Khan resigned and Zulfiqar Ali Bhutto became president under the interim constitution.
However, the judgment created a huge and it was widely welcomed by the people.

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 The State V.S 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 to the Lahore high court which repealed the
decision of Loya Jirga, later on, on the appeal of Federal Govt, Supreme Court reversed the
decision of Lahore High court. The case got importance because it indirectly questioned the
legalization of Martial law imposed by Ayub Khan on 7th Oct, 1958.

JUDGES:

Chief Justice: Muhammad Munir

Justice: Ameerud Din

Justice: Shahabud Din

Justice: R Cornelius

FACTS OF CASE

i On 7th October 1958, President Iskandar Mirza abrogated the first Constitution, the
Constitution of 1956.
ii The President also dismissed the central legislature by saying that the parliamentary form
of government had proved fruitless.
iii With the dismissal of the central legislature the institute of the central cabinet also stands
dismissed.
iv Along with the dismissal of the central legislature, the central cabinet, the Provincial
Legislature and the Provincial Cabinet had also been dismissed.

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 v Martial Law was imposed throughout the country and the Chief of Army Staff was
appointed as Chief Martial Law administrator. He also took over the control of the entire
administrative and legislative machinery of the country.
vi After the imposition of Martial Law, the President promulgated the law's continuance in
force order 1958, with a view to bringing about a new legal order. The general effect of
this order was the validation of laws, other than the 1956 constitution passed by the
parliament before the Martial Law and restoration of the jurisdiction of all Courts. The
order further directed that the country thereafter be known as Pakistan instead of the
Islamic Republic of Pakistan.
vii The order further directed that the country shall be governed as nearly as may be in
accordance with the 1956 Constitution.

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.

WRIT 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 the Lahore High Court. They challenged the references and the convictions on the
grounds that the relevent provision of the FCR were 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.

• Writ of habeas corpus:

A writ of Habeas Corpus is a writ which is issued to bring a person before a court to
ensure that his imprisonment is not illegal.

• WRIT OF CERTIORARI:

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 A writ of Certiorari is a writ which is issued from a superior court to call up the record of
proceeding in an inferior court for review.

DECISION OF LAHORE HIGH COURT:

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

• Effect of decision of Lahore High Court

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

APPEAL TO THE SUPREME COURT

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

DECISION OF SUPREME COURT

Court held that:

i It was held that the 1958 Martial Law imposition is a kind of revolution (peaceful
revolution) which is not resisted or opposed by the common people, this clearly defined
that the people are happy with this change. Thereafter this revolution Martial Law is legal
as long as it satisfies the common people.
ii It is further held that the laws (continuance in force) order 1958 was the NEW LEGAL
ORDER and the validity of the law's correctness in the judiciary decision would be
determined according to it.

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 iii It was further held that if the territory and the people remain substantially the same, there
is under the modern juristic doctrine no change in the corpus or international entity of the
state and revolutionary government and the new constitution are, according to
international law the legitimate government and the valid constitution of the state.
iv It was also held that as the 1956 constitution was abrogated therefore FCR was still in
force in accordance with the laws (continuance in force) order, 1958.
v The decision of the Jirgais valid. The court made a reference to the decision of the
council of elders, that its decision is valid and up to mark.

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 Begum Nusrat Bhutto vs COAS

INTRODUCTION

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

BENCH OF SUPREME COURT

• Chief Justice: Anwar ul Haq

• Justice: Waheed ud Din Ahmad

• Justice: Muhammad Haleem

• Justice: Safdar Shah

• Justice: Muhammad Afzal Cheema

• Justice: Dorab Petel

• Justice: Muhammad Akram

• Justice: Naseem Hassan Shah and

• Justice: Qaisar Khan

FACTS OF CASE

Following are the facts of the case of Begum Nusrat Bhutto vs Chief of Army Staff

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i Allegation of Official Interference with Elections of 1977

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

ii Anti-Bhutto Movement

Opposition parties never accepted the results of the elections of 1977. Therefore, they started
the 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 a
military coup and imposed martial law.

iv Arrest of Zulfiqar Ali Bhutto

With the 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 a public campaign, and this campaign eventually
caused not only his re-arrest but also the arrest of his colleagues.

vii Institution of Case

Against the re-arrest of Zulfiqar Ali Bhutto, Begum Nusrat Bhutto filed this case against the
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
CMLA and the objection could be rectified by adding the words CMLA to the description of
respondents as stated in the petition.

ii Kelsen’s Theory

The theory of revolution legality can have no application to situations where the breach of
legal continuity is admitted to be of a purely temporary nature and for a specified limited
purpose. It will be inappropriate to seek to apply Kelsen’s theory to such transient and
limited change in the legal continuity of the 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 the country from chaos and bloodshed to
safeguard the integrity of Pakistan and to separate warring factions, which had brought the
country to the brink of disaster.

iv Arrangement of Fair Election

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

v Jurisdiction of (Law continuous in force order)

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 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

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

Prepared by: Laiba

Team Head: Laiba

Project by Islami Jamiat Talaba, Punjab University Law College

BEST OF LUCK … !!

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