THE APPLICATION OF JURISPRUDENCE THEORIES IN PAKISTAN CASE LAW

DOSSO VS THE STATE PLD 1958 SC 533 (Citation of case )1

JURISPRUDENCE:

Jurisprudence is extremely important for any society. Jurisprudence is taken from the Latin expression
jurisprudentia, which means "skills in the law "or "knowledge of the law."

Jurisprudence is a philosophical study of law's nature, principles, and impact. Examines core concepts, legal
systems, and social interactions to understand the law's essence and role in regulating behavior and
resolving conflicts1

INTRODUCTION OF THE CASE:

Dosso vs. Federation of Pakistan was the first major constitutional case after the enactment of the
Constitution of Pakistan in 1956 and an important case in Pakistan's political history.

State v/s Dosso is a simple case of murder committed by a person named Dosso in Balochistan. He was
found guilty under the tribal justice system by loyal jirga, as enumerated in FCR (Frontier Crimes
Regulation); and the Universal Declaration of Human Rights (UDHR) talks about rights to a fair trial and
freedom of expression, and also in our Constitution, the right to a fair trial, the right to speech, and the right
to expression According to this, Pakistan is a signatory to the UDHR 2, so the Dosso family appealed to the
Lahore High Court, which repealed the decision of Loyajirga. Later, the Supreme Court reversed Lahore High
Court Decision3.

The case gained prominence because it indirectly questioned the legitimization of martial law imposed by
Iskandar Mirza on October 7,

JURISPRUDENCE THEORIES IN THE JUDGMENT

DOSSO VS THE STATE

The Supreme Court decision drew upon Hans Kelsen's theory of legal positivism. The judgment states that
"A victorious revolution or a successful coup d'état," is an internationally recognised legal method of
changing Constitution”4 It emphasize that when a revolution succeeds, it effectively becomes a
Fundamental law-creating fact. "In Kelsen's view, the law's Continuance Enforced an order, no matter
whether transitory or imperfect, that established a new legal order where the validity of laws and the
correctness of judicial Decisions were determined" According to this theory it depends solely source of
origin, not their substantive content” 5.In the Dosso case, the judges used Kelsen's theory to argue that
imposing martial law was technically illegal under Pakistan's constitution. So They also recognized that the
constitution was incapable of addressing exceptional circumstances, such as the crisis of the country was

1
Jurisprudence by Merriam – Webster-Dictionary
2
Article of universal Declaration of Human Rights (UDHR), constitution of Pakistan 1973
3
Introduction , University of Azad jummu and Kashmir, course, constitutional law
4
Dosso vs the state , PLD 1958 SC 533, para 5,page 2
5
Dosso vs the state PLD 1958 SC ,para 8, page 2

1
facing at the time. So they suggested that the imposition of martial law should be justified on the ground of
principles of necessity. Rather than on its association with the constitution.

The doctrine of necessity has its roots in the writings Henry de bracton, A medieval English jurist , He
stated that "that which is otherwise not lawful is made lawful by necessity"6.

This doctrine allows when normal functions of the government are disrupted and rules of law are
temporarily suspended in exceptional circumstances in order to restore order and stability. In the Doso
case, judges employed the doctrine of necessity to support the implementation of martial law in Pakistan. It
was first articulated in the case of Maulvi Tamizuddin Khan vs. the Federation of Pakistan, as documented in
PlD 1955 FC 240.7

CONCLUSION/OPINION:

According to Kelsen, an appropriate theory of law should ideally be pure, self-contained, and not reliant on
external sources.

"(such as sociology, politics, economics, or the historical influence of the law)" 8.

The application of jurisprudence theories in the Dosso case is an ongoing debate and controversy. While the
judges'

justified martial law based on legal positivism and the doctrine of necessity. It also raises important
questions about the relationship between law, morality, and justice. This case highlights the necessity of
balancing legal positivism with natural law and justice, acknowledging the impact of social, economic, and
political factors on legal decisions, and aligning with the principles of legal realism.

6
https://www.birtannica.com/biography/Henry -de-bracton
7
Maulvi tamizuddin khan vs federation of Pakistan ,PLD 1955 FC 240
8
Jurisprudence by Imran Ahsan nyaze ,third addition 2015, page 122