CONSTITUTIONAL LAW-III

QN 1. Elaborately discuss the Nate and scope of Writ Jurisdiction, also objects of writs.
o
An Writ is a mandatory letter from the King in Parliament, sealed with his Great Seal, and directed to the Sheriff of
s the Country wherein in the injury is committed or supposed so to be requiring him to command the wrong-doer or party
accused, either to do justice to the complainant or else appear in court and answer accusation against him.
It was the King’s order to his liege, written on parchment and sealed with the Royal Seal, and disobedience of
the writ was contempt of the royal authority and punishable as such.
A writ is the process by which civil proceedings in the High Court are generally commenced. There are many
other kinds of writ, e.g., writ of execution, writ of error, writ for the election of a Member of Parliament, etc issued in the
name of the reigning (ruling) monarch, for the doing or not doing of some act of thing.
Analogies (similarities) to the writ among the various institutions met within the history of Constitutional law we
case single out.
(1) The Formula delivered by the Proctor of Rome.
(2) The Prescripts of Roman Emperors.
(3) The Libels of Byzantine period,
(4) The Brevia of Canon Law.
English authorities; however, seem to refer to localize he origin of the writ of their side of the channel by
claiming as its ancestor the gewit of Saxon times. By some it is treated as a development from the ancient procedure of
the Royal Ban.
The French word madat or ordinance, is the sense in which they are used to contemporary practice would most
fitly supply the technical equivalents for old English expression.

Object of Writ. In the 19th and 20th centuries the scope of the minimal duties of the State has progressively widened. New
authorities with wide statutory powers have been created, giving a note emphasis to the problem of reconciling powers of
the state with the liberties of the citizen. Many of the statutes relating to the aggrieved citizen can secure redress from
administrative Tribunals. In Franceand other continental countries problem of this kind are the exclusive concern of
special Tribunals like the Conseil d’etat were a droit administrative, largely the creation of such Tribunals, is applied. In
England, however, it has been said:-
“no consideration of administrative convenience or executive efficiency should be allowed to weaken
the control of the courts, and no obstacle should be placed by Parliament in the way of the subject’s unimpeded
access to them”.
Faced in earlier centuries with the problem of control of local and subordinate authorities. English Judges had
evolved the prerogative writs which are still effective in dealing with many problems created by the welfare state. They
were introduced into India by the Supreme Courts in the Presidency Town.
The value of any method of control of administrative action is measured by the extent to which it enables the
administrative authorities in the State to perform their functions without sacrificing essential liberties of the citizen.
In constitutional theory, and to a large extent in historical fact, after the Norman conquest, legislative, executive
and judicial powers in England were derived from the Crown and were subject to its control. Long after the Sovereign
ceased to sit in it, he was regarded as in some sense present in the court of King’s Bench. Though the Stuart monarchs
endeavored to remove administration from the purview of the court.

QN 2. Define Writ of Habeas Corpus. Point out the persons competent to file Writ of Habeas Corpus , also discuss the
o grounds/principles for issue of Habeas Corpus.
Ans The writ of habeas corpus is a writ directed to the person detaining another and commanding him to produce the
body or prisoner at a certain time and place with the duty and cause of his caption and detention, to do, submit to and
receive whatsoever the Court of Judge awarding the writ shall consider in that behalf. It is a legal process designed and
employed to give summary relief against illegal restraint a personal liberty.

Nature. It is writ of the highest Constitutional importance, it being a remedy available to the meanest subject against the
most powerful. It is a writ of such a sovereign and transcendent (supreme) authority that no privilege of person can stand
against it. The chief writs of habeas corpus are:
(1) Habeas corpus and subjiciendum Prerogative process of securing the liberty of the subject.
(2) Habeas corpus deliberandum and recipias Removal of prisoner from one custody to anther for the purpose of
trial.
(3) Habeas corpus and respo dendum, to bring up prisoner before Magistrate for trial or examination on any other
charge.
(4) Habeas corpus and testificandum, prisoner brought before court for giving evidence as witness.
The difference between habeas corpus and subjiciendum and other habeas corpus is that the former is a writ of
right against which no privilege of person or place can avail.

Habeas Corpus in Pakistan. The jurisdiction to issue orders of the nature of habeas corpus has been with High Courts
for a very long time. Originally when the present Code of Criminal Procedure (Act 1898), jurisdiction to pass an order
under section 491 thereof was conferred only on three High Courts, namely, those of Calcutta, Bombay and Madras,
which were called Presiding High Courts. By an amendment brought about in the section in 1923 (XII of 1923) the power
 to issue orders under section 491 of the Cr.PC was conferred on all High Courts. Another change which was brought
about by the above mentioned amending Act 1923 was that whereas at the beginning and order under section 491 of the
Cr.PC could be passed only with regard to persons within the ordinary original civil jurisdiction of three High Court that
had power to act, the amending Act conferred jurisdiction on all High Courts to pass orders with regard to persons in
places within the limits of their criminal appellate jurisdiction. The marginal not of section 491 is to the effect that the
High Courts could issue directions in the nature of Habeas corpus. The position continued like this till the partition of
British India to which territory the Act was applicable, but sometime in 1953, section 223-A for the Govt of India Act
1935 which Act continued to be the Constitution of Pakistan for quite some nine years after its establishment, was added.
This section gave the High Court powers to issue some writs including that of Habeas corpus and the power continued till
the 23th of March, 1956, when the Constitution of Pakistan came into force which conferred powers of issuing writs on
the High Courts. The October, 1958 when the Pakistan was placed under martial law but even during the Martial Law
regime powers of the High Courts to issue those and some other specified writs was made in the Laws (Continuance in
Force)Order, 1958. Then came the Constitution which is now in force by its 98 th Article, the new Constitution confers on
High Courts the power to set free persons detained in unlawful custody.
Habeas Corpus is writ of ordinary. Habeas corpus is essentially a writ of inquiry and upon matters in which the state
itself is concerned, in aid of right and liberty, though private rights may be involved. It, by no manner of means, follows
that the prayer of petitioner will be granted because the writ has been ordered to issue. The writ simply brings the parties
before the court for the ascertainment of the facts of the case. The court is clothed with the power, with a sound discretion
to grand is refuse itself.

QN 3. In what cases the writ of Mandamus is refused? Write down the points of distinction between Writ of Mandamus
o and prohibition.
An Mandamus. A mandamus lies when a public servant has been discriminated against. The main and principal object of
s writ of mandamus is to compel Govt or its officer to carry out the mandate which the Legislature has given and if the
court finds that the mandate is not carried out or is being violated, the court will compel them to obey the mandate.
Where a convict was released on bail during pendency of his writ petition but subsequent to the dismissal his
petition the bail was cancelled and warrant of his arrest issued, it was held the matter could not be interfered with the
mandamus. Where the authorities in preparing seniority list had not followed the relevant rules, it was held that the list
was still-born which need not be quashed by certiorari and mandamus could go compelling authorities to prepare list in
accordance with law.
A writ mandamus to compel a person to do such act of perform such duty as directed by court is not to be issued
unless the court is satisfied on the pleadings and evidence supporting the same, that party seeking relief had earlier made
a specific request but the same was denied or refused by authorities concerned. A writ of mandamus could be issued to
the state Govt, for directing a School Teacher to the family planning work instead of teaching work, by exercising power
under Fundamental Rule.
A writ of mandamus could be issued for directing the Govt to appoint a Presiding Officer to the Central Labour
Court-cum-Tribunal is case no such Presiding Officer is there for over a year within a specified time.
A writ of mandamus could be issued for directing the examination committee to treat certain was requested just
after the return of answer books to invigilator but before expiry of examination time in order give benefit marks for
scoring out.
A writ of mandamus for a cancellation of appointment of Commission of Inquiry set-up at the instance of
petitioner is not maintainable straightway, when petitioner had failed to approached the State Govt with request to cancel
the appointment.
A writ of mandamus is not maintainable for directing the authorities to confirm the appointment of petitioner as
teacher and pay him his arrears of salary when the appointment itself was in violation of statutory provision.
A writ of mandamus could be issued for framing of relevant rules, within a period of six months. Where the
Govt has ignored the earlier direction of the High Court to do so.
A writ of mandamus for payment of pension to state Govt and its subordinate officers, if remains uncomplied
with, a further writ can be issued for payment of pension arrears with interest comply with courts may call for action in
contempt.
While quashing an order of dismissal made in violation of natural justice, the High Court would not be
incompetent to issue also a mandamus directing payment of salary.
Purpose of Mandamus. The purpose of mandamus is to supply defects of justice. It lies in cases where there is a
specific right but no specific legal remedy for enforcing that right. It also lies in cases where there is an alternate remedy
but the mode of redress is less convenient, less beneficent of less effectual. Generally, it available in anticipation of an
injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an
petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or
unconstitutional order is made. The grant of mandamus is a matter for the discretion of the court, the exercise of which is
governed by well-settled principles.
Mandamus cannot be issued to enforce non-statutory rule. It can be issued when a person corporation or inferior
Tribunal has to perform a public duty which it has neglected or failed to perform. Mandamus can also be issued in cases
of recovery of amount as arrears of land revenue when proceedings for such recovery are without jurisdiction.
A mandamus normally issues only when an officer or an authority by compulsion of statue is required to
perform a duty and which despite demand in writing has not been performed. In no other case will be a writ of mandamus
issue unless it be a quash an illegal order. In the instant case no authority has been brought to the notice of the court
 which enjoins any one of the respondents to issue certified copy of the FIR, if any one asked for it.

Mandamus and prohibition. In Lady Dinbal Petit vs M.S Noranha. It was pointed out that mandamus and prohibition
are “two independent writs to be issued under different circumstances. The writ of prohibition is limited to prevention of
exercise of jurisdiction by a body performing judicial or quasi-judicial functions. It has nothing to do with executive acts
which may also be controlled by the writ mandamus.
In proceedings for mandamus, the person seeking remedy must have a legal right and the authority against
whom relief a sought must have a legal duty. But by means of prohibition a person holding a public office may be
required to forbear from doing a certain act, and to this extent prohibition bears an analogy to mandamus. But the
fundamental difference between the two is that whereas mandamus is available in case of execution of administrative
acts, a prohibition can be granted only in respect of judicial or quasi – judicial act only. A writ or prohibition cannot be
issued to command any one from usurping jurisdiction in respect of executive acts. It goes only inferior Tribunals to
control or quasi-judicial action and is not intended to control executive acts or administrative action.
Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts, it was also
used by the Common Law Courts in their conflicts with the court of Chancery and the court of Admiralty. In the 17 th
century it was issued to the Palatine Courts, and then described as the means of enforcing the right of the Crown to define
the limits of all jurisdictions. Protection of private interests was secondary consideration. Even the 19 th century it was said
that in deciding whether or not to issue prohibition, the question was not whether the applicant had suffered injury, but
whether the royal prerogative had been encroached upon by disobedience of the prescribed order for the administration of
justice. On consequence was that a stranger to the proceedings impugned could apply for the writ. From the 17 th century,
the history of the writ has been remarkably similar to that the writ of certiorari.
Prohibition like certiorari, may be issued to an authority acting in a judicial capacity. The meaning of “Judiciary
Capacity” has been discussed while dealing with certiorari. The authority after enquiry may have a binding order
imposing duties on or affecting the rights of subjects. But prohibition is primarily designed to correct jurisdictional errors,
and the court is more easily satisfied that an authority is acting judicially when there is a plea to jurisdiction then when
violation of natural justice is complained of.
Whereas certiorari is used quash orders of subordinate authorities, prohibition will not be granted if there is
nothing which remains to be done by the authority which can be prohibited. To a large extent, certiorari and prohibition
are alternative remedies but prohibition is preventive certiorari curative. Prohibition in practice is almost invariably
concerned with jurisdiction.
Object. The jurisdiction by prohibition is primarily supervisory having for its object the confinement of Courts of
peculiar, limited or inferior jurisdiction within their bounds to prevent them from encroaching upon the jurisdiction of
other Tribunals, to restrain them from exercising jurisdiction where they do not properly possess jurisdiction at all, or else
to prevent them from exceeding their limits in matters of which they have cognizance. While the practice in issuing the
writ may be regulated by statue, its nature, object and function, as well as the facts governing issuance thereof are
regulated by the common law.

QN 4. What principle was enunciated in the case of Begum Nusrat Bhutto Vs Army Chief (PLD 1977 SC 657).
o
An Petition directed against Chief of Army Staff whereas impugned order of detention passed by Chief Martial Law
s Administrator, Chief of Army Staff also.
Article 184 (3) read with article 199, aggrieved persons petitioner moving petition in her capacity of wife of one
of detensuesa and as acting chairman of party to which all detennees belonged---petitioner though not alleging any
contravention of law own fundamental rights yet in circumstances, held , an aggrieved person within meaning of article
199.
Interpretation of apprehension that decision of Supreme Court of Pakistan in Asma Jillani’s case (PLD 1972 SC
139) in effect rendered illegal all successive Govt of Pakistan and Constitution framed during relevant period, held not
well-found.
Petition filed by Begum Nusrat Bhutto, under article 184 (3) of Constitution seeks to challenge the detention of
Mr. Zulfiqar Ali Bhutto, former Prime Minister of Pakistan and ten other leaders of PPP under the Martial Law Order 12
of 1977. It raises several difficult question of far-reaching constitutional importance in which Mr. Zulfiqar Ali Bhutto,
Mr. Abdul Hafeez Pirzada and Mumtaz Ali Bhutto had filed written statements. Mr. Zulfiqar Ali Bhutto and Mr. Abdul
Hafeez Pirzada have also personally appeared before the court and made detailed oral submission in support of their
position.
The petition over that, this action has been taken against the detenues in malafide manner, with the ulterior
purpose of preventing the PPP from effectively participating in the forthcoming election which were scheduled to be held
during the month of October 1977. Relying mainly on the Judgment of this court in Miss Asma Jillani vs the Govt of
Punjab and others. Mr. Yahya Bakhtiar learned counsel for the petitioner, content that the Chief of Army Staff of the
Pakistan Army had no authority to impose Martial Law on the country that this intervention by the respondent amounts to
an act of treason of article 6 of constitution.

Proclamation:
Whereas I, Gen Zia ul Haq, Chief of Army Staff, have proclaimed Martial Law through Pakistan and assumed
the office of the Chief Martial Law Administrator, hereby order and proclaim as follows:-
(a) The constitution of Pakistan shall remain in obeyance.
(b) The National Assembly, the Senate and Provisional Assemblies shall stand dissolved.
 (c) The Prime Minister, Minister of State, advisor to PM, the Speaker and deputy Speaker of National Assembly and
Provisional Assemblies, the Chairman and Deputy Chairman of the Senate, the Provisional Governors, the
Provincial Chief Ministers and Provincial Ministers shall cease to hold office.
(d) The President of Pakistan shall continue in office.
(e) The whole of Pakistan will come under Martial Law.
Mr. AK Brohi, learned counsel appearing for the Federation of Pakistan, which was also made a patty at his request has
taken two preliminary objections as to the maintainability of this petition.
(a) That it is directed against the Chief of Army Staff, whereas the order of detention had been passed by the Chief
Martial Law Administrator.
(b) That the Petitioner is not aggrieved person in term of article 184(3) of the Constitution read with article 199,
thereof, as she does not alleged any violation of her own fundamental rights, but only those of the detenues.
He also maintain that this court has no jurisdiction to grant any relief in this matter owing to the prohibition
contained in article 4 and 5 of Law (Constitution in fore, Order 1977, which clearly contemplate that no court, including
the High Court and the Supreme Court, can question of validity of any Martial Law order Regulation, or any Order made
there under by a Martial Law Authority, he submits that under clause (3) of article 2 of the aforesaid laws (continuance in
force) Order the right to enforce Fundamental Rights Stands suspended and for this reason as well the petition is not
maintainable.
Furthermore, AK Brohi, has stated that as to necessity for the imposition of Martial Law on 5 th January 1977 and
the events leading there to fall into two phases.
(i) Tile first phase relates to the unconstituted and illegal governance of his country by the dentenues and their
associates and terminates on the eve of the imposition of Martial Law and,
(ii) The second phase relates to the preparations which were being made by detenees and their associates for
formatting Civil War within the country and their intention to frustrate and prevent the holding of free and
fair elections and thereby consolidate their illegal tenure of office.
Mr. Sharifuddin Pirzada the learned attorney-general appearing as a law of office the court has supported Mr.
AK Brohi submission that the change with took place in Pakistan of the 5 th July 1977 did not amount to usurpation of
state power by the Chief of Army Staff, was in fact intended to court the usurper who had illegally assumed power as
result of massive rigging of the election of 7th July 1977. It was also intended to displace the illegal constituted legislative
assemblies both at the center and in the provinces, as majority of members has succeeded in the election by corrupt and
criminal practices. Mr. Pirzada accordingly contents that the present situation is not Governed by the dicta of this court on
the two well known cases of Dosso’s case and Asma Jillani case for the reason that the circumstances here are radically
different, in intervention was of permanent nature, whereas the avowed purpose of the present /chief Martial Law
administrator is to remain in power only for a limited and temporary period so as to hold free and fair election for
restoration of democratic institution.
According to the unanimous view of the court, this petition is dismissed as not being maintainable.

QN 5. Discuss the case of Miss Asma Jillani Vs State (PLD 1972 SC 139)
o
An Annulment and abrogation of Constitution by a successful Military revolution principle laid down in Dosso
s Case. That where Constitution and national legal order under it is disrupted by an abrupt political change not within the
contemplation of the Constitution, then such a change is revolution and its legal effect is not only the destruction of the
Constitution but also the validity of National Legal order, irrespective of how or by whom such a change is brought
about, Held, wholly unsustainable and cannot be treated as good law either only principle or state decides or otherwise
Martial nature and scope of proclamation of Martial law does not by itself involve abrogation of civil law and functioning
of civil authority and certainly does not vest the Commander of Arms Forces with the power of abrogating the
fundamental law of country, Commander of Arms Forces, bound by his oath to defend the Constitution doctrine of “legal
positivism” propounded by Hans Kelsen -----Examined (State vs. Dosso PLD 1958 SC Pak)
The precise the question the Supreme Court was whether that High Court had jurisdiction under article 98 of the
Constitution of Pakistan (1962) to inquire into the validity of detention under the Martial Law regulation in view of the
bar created by the provision of Jurisdiction of the Court (Removal of Doubt) Order 1969. The further question was
whether the doctrine enunciated in the case of state vs Dosso was correct. The successive manoeings for usurpation of
power under the pseudonym of Martial law it was urged where neither justify nor valid nor had even reached the
effectiveness to merit the legal recognition that was given to then in the case of State vs Dosso.
That in lying down a Novel Justice principle of such for reaching important the Chief Justice in the Case of State
vs Dosso proceeded on the basis of certain assumption namely:
(1) That the basic doctrine of legal positivism, which he was accepting, where such firmly and universally accepted
doctrine that whole science of modern jurisprudence rested upon then.
(2) That my abrupt political change not within the contemplation of Constitution, Constitution a revolution no
matter how temporary or transitory the change if no any take any step to opposite.
(3) That the rule of international law with regard to recognition of states can determine the validity also of the
state’s internal sovereignty.
The observations of Chief Justice in Dosso’s case are not correct that upon the principle of international law if
the territory and people remain sustaintinally the same there is no change in the corpus or internal entity of the state and
revaluating Govt in the new state are, according the international the legislate Govt and the valid Constitution of the state.
The preposition does not find support from any principle or international law according to Oppenheim’s view as
propounded in his book on international law if the revolutionary Govt is in effective or has no reasonable expectance of
 performance and / or does not enjoy the acquiescence of the population, then international community may well refuse to
recognize it, even though its territorial in integrity remain unchanged and its people remain sustaintally the same. The
criticism therefore, is true that the Chief Justice Supreme Court not only misapplied the doctrine of Hans Kelsen, but also
feels into error in thinking that it was generally accepted doctrine of modern jurisprudence even the disciples of Kelsen
hesitated to go as far as Kelsen had gone.
The principle enunciated in Dosso’s case, therefore is wholly unsustainable, and it cannot be treated as good law
either and the state decides or even otherwise.
It is clear that under the Constitution of 1962 Field Martial Ayoub Khan had no power to hand over power to
anybody.
Courts having given full effect to Constitution of 1962 and having adjudicated upon right and duties citizen in
accordance with law thereof all law made in acts done by Govt thus acquires not only de facto validity but also dejure
validity by reason of unquestioned recognition extended to then by courts of highest jurisdiction in the country.
The criminal appeal No. 19 of 1972 (Miss Asma Jillani vs Province of Punjab) arises not of judgment of learned
single judge Lahore High Court discussing a petition under article 98(ii) (b) (i) of Constitution of 1962 filed to question
validity is detention of the father of petitioner Malik Ghulam Jillani, the detention in this case he was arrested at Karachi
under and order dated 22nd December 1971. This was the order that was originally challenged in High Court the High
Court admitted the petition or regular hearing and issued notice Govt of Punjab for the 31 st December 1971 a day earlier
on the 30th December, this order was rescinded and subsisted by another order of the same day purported to have been
issued by Martial Administrator, in exercise of power said to have been confirmed on him by Martial Law regulation.
The High Court relying on an earlier decision of his court in the case of State vs Dosso held, that the order of
1969 was valid and binding law and that , as such it had no jurisdiction in the matter by reason of the provisions leave
was granted in this case consider:
(1) As to whether the doctrine enunciated in the case of state vs Dosso, was correct
(2) Even if correct whether the doctrine applied to the facts and circumstances in which filed Marshal Ayoub Khan
transferred power to General Agha Muhammad Yahya Khan and
(3) It the sources of power assumed by Gen Agha Muhammad Yahya Khan was illegal and unconstitutional then
whether all legislative and executive acts done by him including the imposition of Martial Law and the
promulgation of Martial Law Regulation and orders were illegal.
"The Supreme Court shall have power, subject to the provisions of any act of the central legislature and any
rules made the Supreme Court, to review any judgment pronounced or any order made by it”
This case gives me the impression that law has been scarifies on the later expenditure the entire legal system
Pakistan has been derailed as result of this decision on the system requires to put back on the rail, if Pakistan is to peruse
this chartered cause as laid down on objection resolution passed by the people of Pakistan, stare decision should have no
application to Dosso’s case the Supreme Court has observed as follows as stare decision.
I, therefore, fully agree that Dosso case must be revised on the ground mentioned by My lord the Chief Justice.

QN 6. What was held by the Federalcourt in the case of Usif Patel (PLD 1955 FC 387)
o
An Brief History of Case.Usif Patel was declared to be Gonda by District Magistrate Larkana under the Sindh Control of
s Gonda Act (Governor’s) Act, XXVIII of 1952, and he was directed to furnish security and for his failure to furnish
security confined to jail. Against these order he made an application to the Sindh Chief Court under section 491 Cr.PC.
The court declared that the detection was legal and consequently the application was rejected.
Usif Patel filed an appeal in the Federal Court of Pakistan against the orders of the Sindh Chief Court. The
Federal Court decided in favour of the appellant and the appeal was allowed.
The following law pints were involved which were decided by the Federal Court of Pakistan.
(1) In March, 1955 the Governor-General under Section 42 of the Govt of India Act, 1935, promulgated the
Emergency Powers Ordinance of 1955, and this Ordinance validated 35 Constitutional Acts which under the
judgment of Federal Court of Pakistan in Maulvi Tamizuddin case had become invalid. By the Emergency
powers Ordinance the Governor-General not only claimed the powers of making by order such provision, as
appeared to him to be necessary or expedient for the Constitution of Pakistan, but he also repeated or amended
certain provisions of the existing Constitution. The court held that the Governor-General cannot issue an
Ordinance on the constitutional matters. This was the important principle which was decided by the Court, if the
constitutional position were otherwise, the Governor-General could by an ordinance repeat the whole of the
Indian Independence Act and the Govt of India Act, 1935 and assume himself all powers of Legislation, which
could create a very difficult situation in a democratic Constitution.
(2) The Indian Independence (Amendment) Act, 1948 passed by the Constituent Assembly did not have the assent
of the Governor – General and was, therefore, in operative on the authority of Maulvi Tamizuddin case. The
Governor-General purported to given assent to the Act on 27 th March, 1955 by Section 2 of the Emergency
Powers Ordinance 1955 by declaring that the Act shall be deemed to have received his assent on the date the Act
was published in the Official Gazette. It was held that it could not have retrospective operation.
(3) The Sindh Control of Gondas Act, 1952 was held ultra vires the Governor, having been enacted under section
92-A, Govt of India Act, 1930 , which section itself was invalided because it was inserted in the Act by the
Governor-General’s order, XVIIIof 1948 which too ultra vires, having been issued after 31 st March 1948 to 31st
March 1949 by the Indian Independence Act, 1947, the extension of the date 31 st March 1948 to 31stMarch 1949
by the Indian Independence (Amendment) Act, 1948 being also invalid by reason of want of assent to the latter
Act.
QN 7. What questions were referred for opinion to the Federal Court against each question? (PLD 1955 FC 435).
o
An Facts of the case. The federal Court having held in Maulvi Tamizuddin Khan’s case that all laws passed by the
s Constituent Assembly required the assent of the Governor-General sought to validate certain constitutional Acts of the
Constituent Assembly validate certain Constitutional Acts of the Constituent Assembly giving his assent with
retrospective operation by virtue of an Ordinance entitled the Emergency Powers Ordinance IX of 1955 which he issued
under Section 42 of the Government of India Act 1935.
The Federal Court has however declared in Usif Patel’s Case that the Act mentioned in the schedule to the
Ordinance could not be validated under Section 42 of Govt of India Act, 1935, nor could retrospective effect be given to
them. The Constituent Assembly had also ceased to function having been dissolved by the Governor-General and there
was no Legislature competent to validate these Acts.
The Governor General thus made a reference to the Federal Court inviting Court’s opinion whether the Governor
General could under any provision of the Constitution or law declare that all orders made or acts done under those laws
should be valid and enforceable.
Decision. The Court, Cornelius and Muhammad Sharif, JJ dissenting answered as follows:
In the situation presented by the Reference the Governor General has during the interim period thepower under
two common laws of civil or state necessity of retrospectively validating the laws listed in the schedule to the Emergency
Powers Ordinance 1955 and all those laws until the question of their validation is decided upon by the Constituent
Assembly are during the aforesaid period valid and enforceable in the same way as if they had been laid from the date on
which they purposed to come into force.
Chief Justice Munir dealing with the principle of state necessity observed as follows:-
The principle clearly emerging from the address of Lord Mansfield is that subject to the condition of
absoluteness extremeness and imminence and act which would otherwise be illegal becomes legal if it is done bona fide
under the stress of necessity, the necessity being referable to an intention to preserve the Constitution the state or the
society and to prevent it from dissolution and affirms Chitty’s statement that necessity knows no law and the maxim cited
by Briton that necessity makes lawful which otherwise is not lawful. Since the address expressly refers to the right of a
private person to act in necessity in the case of the Head of the State justification to an act must a fortiori be clearer and
more imperative.
Two more questions were raised in the case. The first was whether the constituent Assembly was rightly
dissolved by the Governor General. The second was whether the Constituent Convention proposed to be set up by the
Governor General will be competent to exercise the powers conferred by Section 8(1) of the India Independence Act
1947 on the Constituent Assembly.
Both these questions were answered in the affirmative by the majority of Judge. Dissolution had become
imperative because the Constituent Assembly failed to frame a working or functioning Constitution within a reasonable
time and had assumed the role of a perpetual legislature and also because it had become unrepresentative in character and
had violated the requirement of the Governor General assent to all laws passed by it.
As regards the setting up of a new Constitutional body it was observed that the dissolved Constituent Assembly
was set up by an executive order and not under any law therefore the new executive order and not under any law
therefore the new Constituent Assembly also can be set up by a similar order. The only requirement is that it should be a
representative body

QN 8. Explain the following by referring the relevant Article of Constitution of Pakistan 1973.
o (a) Original Jurisdiction of Supreme Court
(b) Appellate Jurisdiction of Supreme Court
An Original Jurisdiction. The Supreme Court shall have exclusive original Jurisdiction in any dispute between any two or
s more Govt. This jurisdiction shall exercise just to pronounce declaratory judgments only (Art. 184)
The Supreme Court without prejudice to the provisions of Article 199 shall, if it considers that a question of
public importance with reference to the enforcement of any of the Fundamental Rights conferred is involved have the
power to make an order of the nature mentioned in the said articles.
Appellate Jurisdiction.
(1) Subject to this article the Supreme Court shall have jurisdiction to hear and determine appeals from judgment
decree final order or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgment decree final orders or sentence of High Court.
(3) If High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to
transportation for life or imprisonment for the life or on revision, has enhanced a sentence to a sentence as
aforesaid.
(4) If the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such
trial convicted the accused person and sentences him as aforesaid.
(5) If the High Court has imposed any punishment or any person for contempt of the High Court.
(6) If the amount or value of the subject-matter of the dispute in the court of first instance, was and also to dispute in
appeal is not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of
Parliament and the judgment decree or final order of the court immediately below.
(7) If the High Court certifies that the case involves substantial question of law as to the interpretation of the
constitution.
(8) An appeal to the Supreme Court from a judgment decree order or sentence of High Court in a case to which
 clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.

An appeal to the Supreme Court from a judgment decree order or sentence of High Court is a case to which
clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.

Advisory Jurisdiction. If at any time the President considers that it is desirable to obtain the opinion of the Supreme
Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court
for Consideration. The Supreme Court shall consider a question so referred and report its opinion on the question to the
president. The advice so given will not be binding on the President (Art. 186).

QN 9. Define Election Commission. Describe the duties and powers of Chief Election Commissioner. Is it sovereign and
o independent in its own affairs?
An An Election Commission is constituted prior to each election of National Assembly and Provincial Assemblies.
s It is constituted in accordance with Article 216. Article 218 lays down the following constitution of the Election
Commission. The Election Commission shall consist of:-
(a) The Commissioner, who shall be Chairman of the Commission.
(b) Two members each of whom shall be Judge of a High Court, appointed by the president after consultation with
the Chief Justice of the High Court concerned and with the Commissioner.
It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the
election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly
and in accordance with law and that corrupt practices are guarded against.
Duties. It is the duty of the commissioner to prepare electoral rolls for election to the National Assembly and the
Provincial Assemblies and revising such rolls annually. The Commissioner organizes and conducts the election to
theSenate or to fill casual vacancies in a House or a Provincial Assembly. It is also the function of the Election
Commissioner to appoint Election Tribunals.
Executive Authorities to assist Commissioner. It shall be the duty of executive authorities in the Federation and in the
Provinces assist the Commissioner and Election Commission in the discharge of his or their functions.

QN 10. Explain of the following:

o (a) Supreme Judicial Council and its composition
(b) Powers and Jurisdiction of Shariat Court
(c) National Assembly and its composition
An Supreme Judicial Council and its composition. The composition shall consist of :-
s (a) The Chief Justice of Pakistan
(b) The two most senior Judges of the Supreme Court
(c) The two most senior Justice of the High Court
Seniority will be calculated on basis of appointment, if the date is same then appointment of high court. If such
member is a Judge of Supreme Court is absent then who is next in seniority will be appointed. Chief justice of High Court
who next in seniority will be appointed, if former is absent or ill etc.
Function of the Supreme Judicial Counsil.In case of information received from the council or from any other sources
the president is of the opinion that a judge of the Supreme Court or High Court.
(a) May be incapable of properly performing the duties of his office by reason of physical or mental incapacity.
(b) May have been guilty of misconduct
The president shall direct the council to inquire into the matter.
The supreme Judicial Counsil conduct to inquire of the matter as a result of it the Supreme Judicial Council comes to the
conclusion that
(a) The judge is incapable of performing the duties of his office or has been guilty of misconduct
(b) He should remove from office.
It is also the function of the council to provide a code of conduct for the Judges of the Supreme Court and the
High Court. The counsil has already prepared a code of conduct in which the principles have been laid down on which
the Judge of the Supreme Court and High Court should act. The observance of the principles of this court is binding and
obligatory on the Judges of these superior Courts.
The council shall have the same powers as the Supreme Court has in the matter of issuing directions or orders
for securing the attendance of any person or for discovery or production of documents. The orders issued by the council
in this connection are enforceable as though they had been issued by Supreme Court. The laws of the contempt of court
are also being applicable to the council and persons may be presented by if in respect of its contempt.
The actions taken or report made by the council shall not be questioned in any court of law.

Powers and Jurisdiction of Shariat Court.

(1) The court may call for the examine the record of any case decided by any criminal court under any law relating
to the enforcement of Hadood for the purpose of satisfying itself as to the correctness, legality or propriety of
any finding sentences or order recorded or passed by and as to the regularity of any proceedings of such court
and may when calling for such record direct that the execution of any sentence be suspended and if the accused
is in confinement that he be released on bail or on his own bound pending the examination of the record.
(2) In any case of record of which has been called for by the court the court may pass such order as it may deem fit
and may enhance the sentence.
 Nothing in this Article shall be deemed to authorize the court to convert a finding of acquittal into one of
conviction and no order under this article shall be made to the prejudice of the accused unless he has had an opportunity
of being heard in his own defence.
The court has such other jurisdiction as may be conferred on it by or under any law.

National Assembly and its composition.

(1) The National Assembly shall consist of two hundred and seven Muslim members to be elected by direct and free
vote in accordance with law. There are 10 seats for minorities and 20 seats reserved for women.
(2) The seats in the national assembly shall be allocated to each province the Federally Administered Tribal Areas
and the Federal Capital on the basis of population in accordance with the last preceding census officially
published.
(3) Until the expiration of a period of ten years from commencing day or the holding of the (third) general election
to National Assembly whichever occurs late twenty seats in addition to the number of seats referred to in clause
(1) shall be reserved for women and allocated to the Provinces in accordance with the constitution and law.
(4) The member to fill the seats referred to in clause (3) shall be elected simultaneously with the members to fill the
seats referred to in clause (1) on the basis of separate electorates by direct and free vote in accordance with law.
(5) As soon as practicable after the general election to the National Assembly the members to fill seats reserved for
women which are allocated to a province under clause (4) shall be elected in accordance with law on the basis of
the system of proportional representation by means of a single transferable vote by the electoral college
consisting of the persons elected to the Assembly from that province.
(6) Notwithstanding anything contained in the Articles the President may be order make such provision as to the
manner of filling the seats in the National Assembly allocated to Federally Administered Tribal Areas as he may
think fit.
Duration. The National Assembly shall unless sooner dissolved continue for a term of five years from the day of its first
meeting and shall stand dissolved at the expiration of its term.

QN 11. How Pakistan Constitution is to be amended?

o
An Procedure for Amendment. It is amended by act of Majlis-e-Shoora (Parliament) in following manner:-
s (1) A bill to amend the constitution may originate in either House and when the Bill has been passed by the votes of
not less than two-third of the total membership of the House, it shall be transmitted to the other House.
(2) If the bill is passed
(3) Without amendment by the votes of not than two – third of the total membership of the house to which it is
transmitted under clause (1) its shall subject to the provision of clause (4) be presented to the president for
assent.
(4) If the bill is passed with amendment by the votes of not less than two third of the total memberships of the house
to which it is transmitted clause (1) it shall be reconsidered by house is which it has originated and if the bill as
amended by the former house is passed by the latter by the votes of not less than two-third of its total
membership it shall subject to the provision of clause (4) be presented to the president for assent.
(5) A bill to amend the Constitution which would have the effect of altering the limits of a province shall not be
presented to the president for assent unless sit has been passed by the provisional assembly of that province by
the votes of not less than two third membership.
(6) No amendment of the constitution shall be called in question in any court on any ground whatsoever.
(7) For the removal of doubt it is hereby declared that there is no limitation whatsoever on the power of the Majlis-
e-Shoora (Parliament) to amend any of the provision of the constitution.

QN 12. Discuss the facts and case Law involved in the case of Benazir Bhutto Vs President of Pakistan (PLD 1977 Section
o 657)
An This petition under Article 184 (3) seeks to challenge detention of Mr. Zulfiqar Ali Bhutto, former prime
s minister of Pakistan under Martial Law Order NO. 12/1977. The petition averred that his detention is mala fide.
A passage from Hans Kelsen’s General Theory of law and state was cited before the court which goes as:
“This shows that all norms of the old order have been deprived of their validity by revolution and not according
to the principle of legitimacy. As they have been so deprived not only de facto but also dejure. No jurist would maintain
that even after successful revolution the old constitution and the laws based thereon remain in force on the ground that
they have not been annulled.”
Dosso’s case PLD 1958 SC 533 and Miss Asma Jillani case were referred to---one holding that every revolution
once successful is legal and the other holding that a revolution as such is illegal were also examined in detail by the court.
It was stated that Kelsen’s theory was, by no means, a universally accepted theory nor was it a theory which could claim
to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen even admit to formulate any
theory which favours totalitarianism. Kelsen was not attempting to lay down and legal norm or norms which are the daily
concern of the judges, legal practitioners and administrators; and that Kelsen did not attempt to formulate a theory which
favoured totalitarianism as he affected greatest importance to keeping law and might apart.
Again the implications of the law of necessity were discussed at some length by Muhammad Munir, CJ and
accordingly it will be useful to refer to it in the first instance.
An act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the
 necessity being referable to an intention to preserve the constitution, the State or the society and to prevent it from
dissolution, and affirms Chitty’s statement that necessity knows no law and the maxim cited by Bracton that necessity
makes lawful which otherwise not lawful. In Islam “necessity makes prohibited things permissible” After analyzing the
various cast law on the subject the Supreme Court observed that:Any action of the Martial Law authorities which is taken
in consequence of any Martial Law Regulation or Martial Law order could not, therefore, be challenged or questioned on
the doctrine of necessity.

QN 13. Describe the functions of Senate and its composition.

o
An Composition. The senate shall consist of one hundred four members of whom.
s (a) Fourteen shall be elected by the members of each provincial assembly.
(b) Eight shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly.
(c) Three shall be elected from the Federal Capital in such manner as the president may by order prescribed.
(d) Five shall be elected by the members of each provincial assembly to represent ulema technocrats and other
professionals.
General Technocrats / Women Non- Total
Provinces / Territories Ulema Muslim
Sindh 14 4 4 1 23
Punjab 14 4 4 1 23
Baluchistan 14 4 4 1 23
K.P.K 14 4 4 1 23
Federal 2 1 1 - 4
FATA 8 - - - 8
Total 66 15 15 4 104

Election to fill seats in the senate allocated to each province shall be held in accordance with the system of proportional
representation means of the single transferrable vote.

QN 14. What are the salient features of Constitution 1973? When it was adopted?
o
An The Constitution is democratic parliamentary with bicameral legislature. Federal and Islamic in that it ensures bringing of
s all laws in conformity with the tenets of Islamic shariah. Following are the features of Constitution:-
(1) Written Constitution. It written constitution and consists of 280 Articles12 Parts 8 and 7 schedules and a
Preamble.
(2) Federal Islamic Republic. This constitution is based on the principles of democracy, freedom of equality,
tolerance and social justice as enunciated by Islam. It provides a long list of fundamental rights and sets out of
directive for state policy act declares that Pakistan shall be a federal republic to be known as Islamic Republic.
(3) Islamic Ideology. Themost importantfeature of theconstitution is that it is based on Islamic ideology. The
constitution clearly declares the whereas the sovereignty over the entire universe belongs to Almighty Allah
alone and the authority to be exercised by the people of Pakistan within the limits prescribed by him is a sacred
truth. It shall be based on the principle of democracy freedom, equality, tolerance and social justice, as
enunciated by Islam and the Muslims shall be enabled to order their lies in the individual and collective spheres
in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah. Objective
Resolution is hereby made substantive part of the constitution and shall have effect accordingly.
(4) Rigid Constitution. The constitution of Pakistan is quite rigid one because it cannot be easily amended. Article
239 provides a very rigid procedure for the amendment of the constitution. A Bill for amendment must be passed
by two third of the total membership of the assembly and then senate should pass this bill by majority of the total
membership, according this bill by a majority of the total membership. No amendment of the constitution should
be called question in any court on any ground whatsoever.
(5) Fundamental Right. The constitution guarantees the security of person, freedom of movement, assembly
association, trade, business or profession, speech and religious. It provides safeguards against taxation for the
purpose of any particular religion, discrimination in services. It guarantees protection against retrospective
punishment double punishment –incrimination, any law or any custom usage having the force of law, in so far as
it is inconsistent with the rights conferred that not to the extend of inconsistency by void. The rights conferred,
shall not be suspended except expressly provided by constitution.
(6) Directive Principle of Policy. Constitution sets out principles of policy and it shall be the responsibility of
each organ and authority of the state, and each person forming functions on behalf of an organ or authority of the
state to act in accordance with these principles. Steps shall be taken to enable the Muslims of Pakistan,
individually and collectively to order their lives in accordance with the fundamental principles and basic
concepts of Islam. The state shall promote social and economic well-being of the people and social justice. It
shall eradicate all kinds of social evils.
(7) Federal State. Present form of Government as Federal Republic. It has four provinces. It provides two set of
Govt one is Federal and the other is Provincial. It has Federal and Provincial legislative powers. Majlis-e-Shoora
(Parliament) has power to make laws. The Federal has given powers to provincial state to make laws with
respect to any matter in the concurrent legislative list. Provinces are more autonomous by giving them powers to
 legislate on residuary matter.
(8) Parliamentary Form of Govt. the present constitution revives the parliamentary form of Govt. There shall be
Majlis-e-Shoora (Parliament) consisting of the president and two houses to be known as a National Assembly
and the Senate.
(9) Permanent. The present constitution is permanent. It is not possible to abrogate or attempt to abrogate, subvert
or attempt to subvert the constitution by use of force or show of force or by other constitutional means.
(10) Freedom of Judicature. Separation of judiciary from the Executive has always been an unsettled issue before
the enforcement of the present constitution. Three years has been fixed for the separation of judiciary from the
Executive. Many privileges and facilities have been given to the Judges. The Executive has never interested in
the judicial decisions.
(11) Federal Constitution.The distribution of power between the federation and its units is a delicate matter in every
federal state, even in America. But a good constitutional document can solve this problem.
(12) Bicameralism. Federation usually required bicameralism so that the interest of the units may be represented by
their representatives in the upper house where they are equal in numbers.
(13) Right of Minorities. Minorities are represented fairly with the constitution. It describes that “The state shall
safeguard the legitimate right and interest of minorities, including their due representation the Federal and
Provincial Services. All citizens are equal before law and are entitled to equal protection of law.

QN 15. What is meant by “Res-Judicata” Whether it is applicable in writ petitions?

o
An The principle of res-judicata in the case of writ petitions and successive applications on the same cause of section in
s respect of the same subject-matter cannot be permitted. Where, therefore a previous writ petition of a cause, in which the
relief asked for was substantially the same as in the subsequent petition and the subject-matter comprised the property
which was in dispute, was dismissed, the High Court held that he could not be permitted to re-agitate the matter by a
second writ petition.
Application of the bar. Where the High Court exercising writ jurisdiction arrived at erroneous finding on pure question
of law and remanded the case back for decision in accordance with such finding, the party aggrieved by fresh decision of
court below cannot; such circumstances, re-agitate afresh same question by another writ petition.
Res-judicata applied to writ proceedings. The general principle of res-judicata is based on the need of giving finality
to judicial decisions. The underlying principle is that once a res judicata, it shall not be adjudged again. Even where
section 11 of the CPC does not apply the principle of res judicata has been applied by courts for the purposes of achieving
finality in litigation. The fundamental principle in such cases is that the court in any further litigation proceeds on the
basis that the previous decision was correct. Where, therefore, a Judge of the High Court has finally decided on merits the
consideration raised in previous writ petition, the High Court would not allow the same contention to be re-agitated in
subsequent litigation. Repetition of petitions may be allowed only on important question.

QN 16. What are the main functions of Islamic ideology council? Give its composition and powers.
o
An Composition. The Islamic council shall consist of such members being not less than eight and not more than fifteen as
s the president may appoint from amongst persons having knowledge of the principles and philosophy of Islam as
enunciated in the Holy Quran and Sunnah or the understanding of the economic, political, legal or administrative
problems of Pakistan. While appointing the members of the provincial council the president shall ensure that:
(i) So far as practicable various schools of thought are represented in the council.
(ii) Not less than two members are persons each of whom are or has been a Judge or the Supreme Court or High
Court.
(iii) Not less than four of the members are persons each of whom has been engaged for a period not less than
fifteen years in Islamic research or instructions,
(iv) At least one member is a woman.
The president shall appoint one of the members as enumerated in the category (ii) above as chairman of the Islamic
Council.
Functions. It shall make recommendations to the Majlis-e-Shoora (Parliament) and the Provincial Assemblies as to the
ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in
all respects and in order their lives individually and collectively in all respects and in accordance with the principles and
concepts of Islam as enunciated in the Holy Quran and Sunnah. It shall advice a House, a Provincial Assembly, the
President or the Governor on any question referred to the council as to whether a proposed law is or is not repugnant to
the injunction of Islam.
The Islamic Council shall make recommendations as to the measures for bringing existing laws into conformity
with the injunction of Islam and the stages by which such measures should be brought into effect. It shall also compile for
the guidance of the Majlis-e-shoora (Parliament) and the Provincial Assemblies such injunction of Islam as can be given
Legislative effect.
The proceedings of Islamic Council were regulated by the Council of Islamic ideology (Procedure) rules 1974
(Article 231).

QN 17. Define and state the powers of President of Pakistan?

o
An The powers of president can be broadly divided into Executive, Judicial, Legislative, Appointment of Defence and
s Emergency.
(1) Executive Powers. The president can assume to himself or direct the Govt of a province to assume on behalf of
the president, all or any of the functions of the Govt of the province and all or any of the powers vested in or
exercisable by anybody or authority in the province, other than the provincial assembly. This thing will happen
if the constitutional machinery in a province fails to work.
(2) Judicial Powers. To grant pardon, reprieve and respite and to remit suspended or commute any sentence passed
by any court, tribunal or other authority. The president can promulgate Ordinance when the national assembly is
not a session. The ordinance so promulgated shall have the same force and effect as an Act of Parliament and
shall be subject to like restrictions as the power of the Majlis-e-Shoora (Parliament) to make law. The president
may withdraw the ordinance so passed at any time he likes. The orders and other instruments made and executed
in the name of the president shall be authenticated by the president and such orders and instruments shall not be
questioned in any court of law. He can dissolvethe national assembly on the advice of prime minister.
(3) Legislative Powers. Besides making and promulgating ordinance the president has these powers.
a. To summon either house or both houses of parliament in a joint sitting to meet at such time and place as
he thinks fit. He may also prorogue the house or houses.
b. To hold general election within the 100 days from the date of dissolution.
c. When the national assembly stands dissolved he can appoint a care-taker cabinet.
d. No bill can become a law unless it is not assented by the president.
(4) Power to make Appointment. The president appoints the following:-
a. The chief justice of Pakistan
b. Each of the judges of the Supreme court after consultation with the Chief Justice.
c. Acting chief justice of the Supreme Court
d. Chief Justice of High Courts after consultation with Chief Justice of Pakistan and governor concerned.
e. Additional judges of High Courts
f. The Chief of Staff, Naval, Air Force and Army
g. Attorney General of Pakistan
h. Auditor and Controller of Pakistan
i. Members of National Finance Assembly
j. Members of Islamic Advisory Council
k. Chief Election Commissioner of Pakistan
l. Members of Council of Common Interest. (CCI)
m. Members of National Finance Counsil
(5) Power relating to defence.
a. To raise and maintain the military, naval and air forces and reserves of such forces
b. To grant commission in such forces