1.

Maulvi Tameez-ud-Din Khan vs Federation

1.INTRODUCTION.
Judiciary plays a very important role in the interpretation of the statues and laws. The judiciary has an
important role in the development of law. In Pakistan to the superior courts gave judgements which
became precedents. There have been a lot of important and leading cases in the history of Pakistan.
Maulvi tameez-ud-din vs federation is one of the important cases in history of Pakistan.
On October 24, 1954 Ghulam Mohammad, the Governor General of Pakistan dissolved the Constituent
Assembly and appointed a new Council of Ministers on the grounds that no longer represented the
people of Pakistan. Stanley de Smith argues that the real reason for the dissolution was because
Mohammad objected to the constitution which the Assembly was about to adopt.

2. 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.
The Constituent Assembly amended Sections 9, 10, 10-A, 10-B of the Govt of India Act, 1935 through the
Govt of India (Amendment) Act, 1954.

• These amendments reduced the powers of Governor Genral.

• GG reacted and dissolved the CA on 24th October, 1954. GG issued a proclamation in this regard.
(II). GOVERNOR GENERAL ALSO DISSOLVED CABINET IN 1953.
Governor general dissolved cabinet in 1953 before the dissolution of the constituent assembly of
maulvi tameez-ud-din, the governor general of Pakistan in 1953 also dismissed 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.
(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
cheif court sind. This petition was against the federation.
(a). WRIT PETITION.
Maulvi tameez-ud-din filed the writ petition in the chief court sind under section 223.A of the
government of india act 1935.
(b). NUMBERS OF WRITS FILED.
He filed two writ petitions in order to redress his grievance. They were as follow.
WRIT OF MANDAMUS.
To restraint respondents from giving effect to the proclamation and from interfering with the exercise of
his functions as President of CA
WRIT OF QUO WARRANTO.
To oust ministers of the Cabinet (respondents 2-10) appointed by the Governor General.
3. 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 CONSTITUENT ASSEMBLY WAS RIGHT.
It was argued that the constituent assembly was dissolved in a right way.
(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.
Section 6 (3) of the Indian Independence Act, 1947 gave the GG of each of the new dominions full
powers to assent to any law of the legislature of the dominions.

The Sind Chief Court has got no jurisdiction to issue any writ and Section 223-A which was inserted by
the CA in the Govt of India Act, 1935 giving writ jurisdiction to the Court, was never assented to by the
Governor General of Pakistan.
3. SITUATION ON GROUND.
The laws or any amendment made in the Govt of India Act, 1935 were never sent for approval to
Governor General from 1947 to 1954. So many laws were in operation and many cases had been
decided or were under trial in this regard.
Governor General was not having power to dismiss Assembly and to issue Emergency Power
Ordinance,1955 under Govt. of India Act, 1935 .• Under the Indian Independence Act,1947,
Governor General was bound to give his assent to the laws made by the CA till the new Constitution.
4. DECISION OF THE CHIEF COURT.
The chief court of the sind declare null and void the step taken by the gulam muhammad governor
general and assembly restored. It held that the Governor-Gerneral's approval was not needed when
the Constituent Assembly was acting only as a Constituent Assembly and not as the Federal Legislature.
5. APPEAL OF FEDERATION BEFORE THE FEDERAL COURT.
The Federation of Pakistan and the new Council of Ministers then appealed to the federal court. The
appeal was heard in March of 1955 (Federation of Pakistan v Moulvi Tamizuddin Khan).
6. DECISION BY THE FEDERAL COURT.
(I). GOVERNOR GENERAL ASSENT IS NECESSARY.

In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the Constituent
Assembly functioned as the 'Legislature of the Domain' and that the Governor-General's assent was
necessary for all legislation to become law. Therefore, the Chief Court of Sind had no jurisdiction to
overturn the Governor General's dissolution and it was held as valid.
(II). SEC 223-A OF GOVERNMENT OF INDIA ACT WAS NOT LAW.
Section 223-A of government of India act 1935 was not law due to non-assent of governor general.
(III). NO JURISDICTION OF CHIEF COURT.
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). DISSENT BY JUSTICE CORNELLIUS.
He said that the CA be placed above the GG for two reasons:

1. That CA was a sovereign body; and 2. Statutes under which GG functioned, were under its
competence to amend.

The CA was not a creation of the British Parliament but was a body created by a supra-legal power to
discharge the function of preparing a constitution. The nature of freedom extended under the IIA,
resulted in making free peoples in the dominions of Pakistan and India who enjoyed the advantage of
representative institutions on British pattern.
7. EFFECT OF THE DECISION.
In the decision of federal court the decision of chief court of sind was suspended.
All 47 laws that were passed by the CA were cancelled too. There was a flood of litigations by those
who were affected by these 47 laws.
8. BENCH OF FEDERAL COURT.
 Chief justice. Mohammad Munir
 Justice. Mohammad Sharif
 Justice. S.A.Rehman
 Justice. S.M.Akram
 Justice. R.Cornelius
9. CONCLUSION.
In the end we can say that the federal court decided the case in the favour of the federation and the
council of ministers. The dissolution of constituent assembly was held right and it dismissed the writ
petition.
Doctrine of Necessity- In his verdict, Munir declared it was necessary to go beyond the constitution to
what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He
relied on Bracton's maxim 'that which is otherwise not lawful is made lawful by necessity', and the
Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.'

2. Dosso vs State of Pakistan

1. 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 prominence, because it indirectly questioned the legitimization of Martial law imposed by
Iskandar Mirza on 7th oct, 1958.

2. Background:
A murder took place in the Lora lai district of Balochistan by 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 favor of Dosso.
Lahore high court also declared FCR as an unconstitutional. The Federal Govt filed appeal against this
decision in SC of Pakistan. SC decided the case in favor of the federal govt.

3. Main Events/Facts:
i) 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.

ii) Petition in Lahore High court against FCR

The relatives of Dosso filed a petition against the proceedings of 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 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.

iii) Decesion of Lahore High Court

The High Court decided the case in favor 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.

4 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 were questioned, which were decided under FCR since long before it was
enacted, and especially since 1956 when the new constitution was promulgated.

5. Appeal in the Supreme Courtof 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 were dissolved with the abrogation of the
1956 Constitution.

6. Laws (Continuance in Force) order: (october 11,1958)

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 were restored.
Thus, law (continuance in force) order 1958 became the NEW LEGAL ORDER, which replaced the old
legal order i.e the 1956 constitution.

7. SOME TECHNICAL POINTS:

Followed by the imposition of Martial Law some technical points raised in the dosso case throughout the
country.
a) if Supreme Court would upheld the decision of Lahore High Court in Dosso case, it means that the
1956 Constitution was still in force as Lahore high Court decided the case in accordance with Article 5
and & 7 of the 1956 constitution.

b) And if 1956 constitution was still enforce 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.

8. JUDGEMENT OF THE SUPREME COURT:

The Supreme Court decided the case unanimously against the verdict of Lahore High Court. The
Supreme Court’s decision was based on the Hans KELSON'S THEORY OF LEGALPOSITIVISM.

KELSON's THEORY OF LEGAL POSITIVISM: A successful revolution is in itself an evidence of its legitimacy.

MAIN POINTS/ASPECTS OF THE JUDGMENT:

1) LEGALISATION 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 indicates that the people are happy with this change, thereafter this revolution or
martial law is legal as long as it satisfies the common people.
2) 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.
3) 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.
4) The Decision Of LOYA JRGA Is Valid: the court also made a reference to the decision of council of
elders, that its decision is valid and up to the mark.

9. Critical Analysis/Commentary/Impacts of SC verdict:

1) Recognition of ML: the judgment of SC recognized the ML as legal and valid action; this had far
reaching effects on the political history of Pakistan. It opened the gates for the future ML”s in
the country; also the recognition of ML provided with absolute powers in the hands of ML
administrator who generously used it for next 10-11 years.
2) Halt Democratic process: the verdict of SC halted the democratic process in Pakistan which had
recently come on the right track after the promulgation of 1st constitution of Pakistan on 23rd
march 1923; and threw the country onto the track of dictatorship.
3) Deprivation from Constitution: As a result of the judgment, Pak was deprived from its 1st
independent constitution framed and promulgated after so much efforts, and a long struggle of
11 years.
 4) Encouraged Military intervention: the verdict of SC encouraged the subsequent military
interventions in the politics of Pakistan; which occurred three times i.e Gen Yahya- 1967, Gen
Zia - 1979 and finally Gen Musharraf- 1999, after this sad event. These interventions potently
damaged the process of democratization in pak.
5) 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 existed till
2018. Had it not been declared as valid in 1958, the disturbances in these regions would have
less, and these people would have been brought under the arena of normal judicial system of
Pakistan.
6) Damaged Independence of Judiciary: The verdict was a serious blow to the independence of
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 had to give decisions against the basic
principles of justice, they were bound to do so.
7) Curbing of Appellate Jurisdiction: The decision also took away the power of the courts to hear
appeals against the cases/actions of federal Govt.
8) Laughing stock for civilized world: the judgment provided a laughing stock for civilized world on
Pakistan; Because of the recognition of ML on the basis of Hans Kellson’s outdated theory,
which is an irrelevant principle.
9) Judiciary Bow down in front of Executive: once again the judiciary bowed down in front of
strong executive in this case.
10) Disturbed ties between East and west Pakistan: the abrogation of 1956 constitution also
led to the upset of agreements between East and West Pakistan; which were resolved after long
struggle under 1956 constitution. The grievances of East Pakistan were almost pacified in 1956
consensus based constitution by incorporating both Urdu and Bengali as national language etc.
Had the ML was not legalized at that time, we would have not lost East Pakistan.

3. ASMA JILANI vs GOVT OF PUNJAB

3. Introduction:
In the famous case of Asma Jilani, a detailed history of the Martial law in the British days has
been mentioned and its comparison has been made with the past days.

4. Facts:
(i) Appeal in the Punjab High Court
The two appeals, one filed by Miss Asma Jilani in the Punjab High Court for the release of
her father Malik Ghulam Jilani , and by Mrs Zarina Gohar in the Sindh High Court for the release of
her husband Althaf Gohar, under Article 98 of the Constitution of Pakistan 1962.
The detention of Malik Ghulam Jilani and Altaf Gohar had been made under the Martial Law
Regulation No.78 of 1971. So the detention of these persons were challenged in Lahore and Karachi
High Court respectively.

(II) High Court’s Verdict

The High Court held that it had no jurisdiction because clause 2 of the Jurisdiction of Courts
(Removal of Doubts) Order No.3 of 1969 barred the courts from questioning the validity of any act
done under the Martial Law Regulation No.78 of 1978.

(III) Appeal to the Supreme Court

Asma Jilani appealed to Supreme Court which held that this country was not a foreign country which
had been invaded by any army with General Agha Mohammad Yahya khan as its Head, nor was it
an alien territory which had been occupied by the said Army. Martial Law could not have arisen in
the circumstances. Pakistan had its own legal doctrine-The Qur'an, and the Objectives Resolution.
Therefore Martial law was never superior to the Constitution.
Supreme Court further held that Yahya khan was neither a victor nor Pakistan was an occupied
territory and thus declared him a "Usurper". All his actions were also declared illegal.
When Asma Jilani's judgment was released, Yahya khan was not in power, but now it was Bhutto's
Martial Law and Bhutto was the chief Martial law Administrator and the president.
Asma Jilani's case paved the way for the restoration of democracy. 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, Bhutto was compelled to remove the Martial law.
PLD 1972 SC 139

MISS ASMA JILANI V. GOVT. OF THE PUNJAB

The father of the appellant, Malik Ghulam Jilani was arrested under an Order dated 22 December
1971 issued under rule 32 (i) (1) read with rule 213 of the Defence of Pakistan rules, 1971.
Government rescinded this Order and substituted it be another purported to have been issued
under Martial Law Regulation No.78 by the Martial law Administrator Zone “C”. The writ petition
was accordingly amended and on the hearing on 15 January 1972 the Government raised a
preliminary objection that the jurisdiction of the High Court was barred in the matter by virtue of
the provisions of clause 2 of the jurisdiction of Courts (Removal of Doubts) Order, 1969
promulgated by the Chief Martial Law Administrator. The High Court (Shafi-ur-Rehman, J) relying
on State V. Dosso, PLD 1958 S.C 533 held that the jurisdiction of Courts (Removal of Doubts)
Order, 1969 was valid and binding and as such, it had no jurisdiction to entertain and decide the
petition.
The appeals were heard and allowed by the Supreme Court declaring both the impugned orders
of detention to be void and without legal effect setting both the detenus at liberty.