Pakistan v Dosso

• Jurisdiction: Pakistán
• Date: 27 October 1958
• Court: Supreme Court (Pakistan)

Pakistan, Supreme Court.

(Muhammad Munir C.J.; Shahabuddin, Cornelius and Amiruddin Ahmad JJ.)

The State

and

Dosso and Another.

States In general Continuity of States Effect of revolution Whether State affected as international entity Abrogation of prior Constitution Revolution itself a law-creating fact Validity of new laws to be judged by reference to new and not annulled Constitution The law of Pakistan.

The Facts.The respondents were accused of the offence of murder and their case was referred by the Deputy Commissioner, under s. 11 of the Frontier Crimes Regulation, to a Council of Elders. The Council having held them guilty of the offence, a sentence of imprisonment was passed on them by the Deputy Commissioner. The respondents thereupon applied to the High Court of West Pakistan for the issue of writs of habeas corpus and certiorari on the ground that the provisions (ss. 11 to 20) of the Frontier Crimes Regulation were void, as they violated Article 5 of the Constitution of Pakistan of 1956, which guaranteed the fundamental right of equal protection of the law. The High Court issued the writs, holding that as the Regulation provided for the reference of cases of Baluchis and Pathans only, the classification was not a reasonable one and hence violated Article 5 of the Constitution. The State appealed to the Supreme Court of Pakistan against the orders of the High Court.

While the appeal was pending, the President of Pakistan annulled the Constitution of Pakistan, dismissed the Central Cabinet and Provincial Cabinets and dissolved the National Assembly as well as the Provincial Assemblies by a Proclamation issued on October 7, 1958. Simultaneously, martial law was proclaimed throughout the country.

On October 10, 1958, the President promulgated the Laws (Continuance in Force) Order, 1958. Article 2 (1) of the Order provided that notwithstanding the abrogation of the 1956 Constitution, and subject to any Order of the President, or regulation made by the Chief Administrator of Martial Law Pakistan shall be governed as nearly as may be in accordance with the late Constitution. Article 2 (2) provided for the continuation subject as aforesaid, of the existing Courts and their jurisdiction. Article 2 (7) provided:

All orders and judgments made and given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith.

The other main provision of the Order involved in the case was Article 4 (1), which stated:

Notwithstanding the abrogation of the late Constitution, and subject to any order of the President or regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders-in-Council, orders other than orders made by the President under the late Constitution, as are set out in the schedules to this Order, rules, by-laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extraterritorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.

It was contended on behalf of the appellant (the State) that as the late Constitution was no longer in force, Article 5 of that Constitution did not apply, and the Frontier Crimes Regulation which comes within the expression all laws in paragraph 4 (1) of the new Order, having been validated thereunder, was applicable subject only to the limitation indicated therein and not to...