DEPARTMENT OF LAW

SUBMITTED TO Mam Saima Yasmeen

SUBMITTED FROM USAMA AKRAM
ROLL NO. S_19_007
Semester 2nd
Subject Legal System
Introduction
Judiciary plays a very important role in the interpretation of the statutes and laws. The judiciary has a
pivotal role in the development of law. It develops law by giving judgments which become precedents.
So precedents may be regarded as source of law. In Pakistan to the superior Courts gave judgments
which became precedents. There have been a lot of important and leading cases in the history of
Pakistan. Asma Jilani vs Government of the Punjab case is one of them .

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:                
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 Althaf 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.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.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 theinterim 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.

Background:

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.
PRINCIPLES OF LAW OR RULE OF LAW

Following are the Principles of law or Rule of law

ii. Constitution of Pakistan 1962
It was settled in this appeal that 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 constitution of 1962 and courts gave them.
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.
vii. Doctrine of Necessity
Although doctrine of necessity was once again pleaded to defend military regime of General
Yahya Khan, yet same was rejected through judgment of this appeal.

Conclusion
To conclude, it can be stated that judgment of case of Miss Asma Jillani was though announced
after end of General Yahya Khan’s rule, yet it initially led to end of Bhutto’s martial law and
finally it paved way for restoration of democracy and for adoption of constitution of 1973.