ASMA JILANI V.

THE GOVERNMENT OF
PUNJAB, PLD 1972 SC 139

Miss ASMA JILANI (Appellant)

Versus

THE GOVERNMENT OF THE PUNJAB AND ANOTHER (Respondents)

(On appeal from the judgment and order of Lahore High Court, Lahore, dated the 15th
January 1972, in Writ Petition No. 1538 of 1971)

FACTS: -

Malik ghulam Jilani a leader of the awami league and altaf gohar a Civil servant and editor of
newspaper dawn. both were detained under martial law regulation number 78 of 1971.

Malik ghulam Jilani was against of president Yahya Khans military action in East Pakistan in
1970.In his letter to president Yaya Khan on 7 April 1971, he expressed his opposition to the
use of force in East Pakistan and urged for a peaceful resolution on this crisis.

Altaf gohar published his letter in his newspaper dawn as a result both altaf gour and malik
ghulam Jilani were arrested and detained.

Two writ petitions were filed under article 98 of 1962 constitution. The first writ by Asma
Jilani for her father Malik Ghulam Jilani and the other writ by Zareena Gohar for her husband
Altaf Gohar. The detention of Malik Ghulam Jilani and Althaf Gohar had been made under the
Martial Law Regulation NO 78 of 1971. So the detention of these persons was challenged in
Lahore and Karachi High Court respectively.

The petitions are good that the detention was unlawful and unconstitutional and violated the
fundamental rights of both

The High Court adopted and dismissed the petition decreeing that it had no jurisdiction
because of the clause 2 of the Jurisdiction of Courts (Removal of Doubts) Order No.3 of 1969
and barred under famous order “ Removal and Doubts Order,1969. General Yahya Khan passed
this order on courts. It aimed at reducing and shrinking the powers of courts. Its main point
was that “ neither court has the power to interfere in the matters of COAS and
military”..However, the High Courts gave the Petitioners certificate to appeal to Supreme
Court.
Further, Asma Jilani appealed to Supreme Court.

Kelson Theory:

If change in government or constitution is made without breaking any law and there is no
opposition or conflict then it can be recognised as successful revolution under international
law.

State versus Dosso case there was no opposition or resistance to change and the territorial
integrity of country remained intact.

Issues: Issue :

Now the Sc has to determined

1) Whether the HC had power to inquire into the question of validity of detention ?

2) Whether the principal given in Dosso case was good piece of law or not?

3) Was martial law and regulations legal?

The Decision of the Court: -

Justice Hamood Ur Rahman disclosed:

• The appeal for detention of Malik Ghulam Jilani was withdrawn

• The Supreme Court announced Yahiya Khan as usurper

• The Court declared his action of Emplacement of Martial law as illegal

The Supreme Court, led by Chief Justice Hamoodur Rahman, declared the Second Amendment
to the Constitution null and void. .