Re Reference No 1 of 1965

CourtObsolete Court (Pakistan)
Date08 February 1966
Pakistan, High Court of West Pakistan.

(Wahiduddin and Khamisani JJ.)

Re Reference No. 1 of 1965

War and neutrality War in general Effects of outbreak of war On enemy subjects Enemy character Of individuals and corporations Alien enemies Who are alien enemies Proceedings in which alien enemies are parties Effect of the war on such proceedings The law of Pakistan

Summary: The facts:In September 1965 fighting broke out between India and Pakistan and a state of war was declared. Several proceedings were pending in the Pakistan Courts in which individuals and corporations with alleged enemy character were parties. The question arose as to whether they were alien enemies and what was the effect of the war on the proceedings in which they were parties.

Held:(1) Two main considerations in determination of the enemy character of persons were (a) the place of their residence and (b) the likelihood of enrichment of the enemy country.

(2) (i) Alien enemies could not proceed with proceedings instituted by them including appeals therefrom;

(ii) Alien enemies could defend proceedings instituted against them including prosecution of appeals therefrom but would not be able to enforce any benefit derived from them conducive to the enrichment of the enemy.

The following is the text of the judgment of the Court:

Khamisani J.This is a reference, the necessity of which arose because of dastardly and unprovoked invasion of India upon sacred territory of Pakistan. The office knowing that several suits in which alien enemies were either the plaintiffs or the defendants were pending within the jurisdiction of the West Pakistan High Court, put up all the suits for decision whether they fell within the ambit of section 83 of the Code of Civil Procedure and could be proceeded with. The Senior Judge of this Bench directed the matters to be placed before a Division Bench. Notices to the learned counsel appearing in all those matters were issued. Notice to the Custodian of Enemy Property was also given. This reference consequently came up before us for hearing on the 13th of December 1965.

2. The following is the list of cases in which the plaintiffs are said to be alien enemies

3. The following is the list of cases in which the defendants are said to be alien enemies

4. The following is the execution case in which the applicant is said to be an alien enemy

5. It is undisputed that Pakistan and India are in a state of hostility. For the purpose of disposing of this reference the first question that has to be considered is whether the state of hostility between Pakistan and India is such which can bring the above cases within the operation of section 83. C.P.C. Section 83 in its amended form reads as under:

6. In order to understand and interpret section 83, C. P. C., it is necessary to bring also on record the background under which the hostility between the two countries started. It is very well-known that on the 6th of September 1965, Indian armed forces attacked Pakistan clandestinely without any warning. The President of Pakistan on that very day issued a proclamation, the relevant words of which are reproduced hereunder:

On the same day, the President of Pakistan issued a Proclamation As To Contraband Of War which was published in the Extraordinary Gazette of Pakistan of the 9th of September 1965. The state of emergency was also declared by the President of Pakistan on the same day under Article 30 of the Constitution. Another Proclamation As To Contraband Of War was also published in the Extraordinary Gazette of Pakistan of the 11th of September 1965. In the Proclamation As To Contraband Of War it was stated as under:

The Defence of Pakistan Ordinance, 1965 (Ordinance XXIII of 1965) was also promulgated on the 6th of September 1965. Under section 4 of this Ordinance it was enacted that any rule made under section 3, shall prevail notwithstanding its inconsistency with anything contained in any other enactment or law. Under section 14 of this Ordinance the ordinary Criminal and Civil Courts were directed to exercise jurisdiction subject to what was contained in the Ordinance.

7. The Defence of Pakistan Rules, 1965, have also defined enemy and enemy territory in Rules 2(2) and (3). Rule 2(2) reads as under:

Rule 2 (3) reads as under:

Under rule 161 of the Rules, enemy has been defined in Clauses (a), (b) and (c) as under:

Under Rules 169 of these Rules, enemy subject has been defined in clause (a) of sub-rule 1 as under:

Enemy firm has been defined in sub-rule 2 (b) of rule 169 as under:

In rule 182 of these Rules it has been said that with a view to preventing the payment of moneys to an enemy firm, and to provide for the administration and disposal by way of transfer or otherwise of enemy property and matters connected therewith or incidental thereto, the Central Government may appoint a Custodian of Enemy Property for Pakistan and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed.

8. Enemy Property (Custody and Registration) Order, 1965, was also promulgated and published in Gazette of Pakistan, Extraordinary, of 9th of September 1965. Sub-rules (i) to (iv) of Rule 4 lay down that the Custodian or such person as may be specially authorised by him in this behalf, may carry on the business of the enemy, take action for recovering any money due to the enemy, make any contracts, and execute any documents in the name and on behalf of the enemy, and institute, defend or continue any suit or other legal proceedings, refer any dispute to arbitration and compromise any debts, claims or liabilities. Rule 5 of Enemy Property (Custody and Registration) Order 1965...

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