Civil Appeal

Province of East Pakistan vs Md. Mehdi Ali Khan-09/09/1959

SUPREME COURT OF PAKISTAN

P L D 1959 Supreme Court (Pak.) 387

Present Muhammad Munir, C. J.;. M. Shahabuddin,

A. R. Cornelius, Amiruddin Abmad and S. A. Rahman, J.J.

Civil Appeal No. 18-D of 1958.

1. The PROVINCE OF EAST PAKISTAN and

2. The SECRETARY, FINANCE AND REVENUE

(REVENUE) DEPARTMENT, EAST PAKISTAN,

DACCA . —Appellants

versus

(1) MD. MEHDI ALI KHAN—Respondent

Civil Appeal No. 19-D of 1958.

(2) Syed MUHAMMAD ALI—Respondent

Civil Appeal No. 20-D of 1958.

(3) KHURRAM KHAN PANNI—Respondent

Civil Appeal No. 21-D of 1958.

(4) Shah ZILLUR RAHMAN Chowdhury—Respondent

Civil Appeal No. 22-D of 1958.

(5) FATEHDAD KHAN GHAZNAVI-Respondent

Civil Appeal No. 23-D of 1958.

(6) ENAYAT HOSSAIN Chowdhury—Respondent .

Civil Appeal No. 24-D of 1958.

(7) YAR ALI KHAN—Respondent

and

CivilApeal No. 25-D of 1958.

(8) A. B. M. SHAYESTA KHAN—Respondent

Civil Appeals Nos: 18-D, 19-D, 20-D, 21-D, 22-D, 23-D, 24D. and 25-D of 1958,

decided on 9th July, 1959.

(On appeal from the judgment and orders of the High Court of east Pakistan, Dacca, dated the 20th December 1957, in Writ Petitions Nos. 14, 18, 17, 22, 28, 32, 62 and 67 of 1956).

(a) Constitution of Pakistan (195 Art. 157 (1)—Substantial question of law as to interpretation of constitution—High Court’s certificate re : appeal to Supreme Court—“Third Judge” (hearing case on difference of opinion between two judges) competent to grant—Government of Inida Act, 1935, S. 205—Letters Patent (Dacca), cl. 36 : [Per Muhammad Munir, C. J. ; Cornelius, J., (contra) ].

Per Muhammad Munir, C. J.—It is a common practice in the Dacca High Court, based on the practice of the Calcutta High Court while section 205 of the Government of India Act 1935, was in force, for a single Judge or a Division Bench, different from the ‘Appellate Court’, to grant a certificate in cases where a substantial question relating to the interpretation of the Constitution is raised and decided. This certificate is given without any express direction of the Chief Justice for the constitution of a Bench for the purpose. The rule should not be different where on a difference of opinion the case is referred to and decided in accordance with the opinion of the third Judge. [p. 401]A

Per Cornelius, J., (contra).—“The certificate is required by Article 157 to be granted by the High Court and I conceive that by the expression ‘High Court’ is meant in any particular case, a Judge or Judges of the High Court functioning under the rules of the High Court and under the general control of, the Chief Justice as exercised by means of special orders e.g., Orders constituting Division Benches for the purpose of grant of such a certificate. I feel no difficulty in coming to the conclusion that the position of Mr. Justice Ispahani (“Third Judge”) in relation to the case must be placed within the terms of clause 36 of the Letters Patent, and so placed, he could not be regarded as the High Court in respect of the decision. Therefore, the whole proceeding which has resulted by the grant of the certificate by him was, in my view, ultra vires. A certificate could only have been granted within the rules of the Supreme Court and the High Court. Rule I of Order XII of the Rules of this Court provides as follows :—

“The provisions of Order XLV of the Code and of any rules made for the purpose by the High Court concerned so far as may be applicable, shall apply in relation to appeals preferred to the Court under Articles 157 and 158 of the Constitution :

Provided that the Court may from time to time issue to High Courts any special directions for the purpose of presentation of appeals to the Supreme Court.”

As regards the High Court it is clear that the rules require that certificates of the kind here in question may be obtained only upon application and after notice to the other side and may only be granted by a Division Bench, presuntabty a Bench constituted by the Chief Justice. These requirements are not satisfied in the present case and therefore, I feel no hesitation in holding that the anneal as presented to this Court was not [*389]

(b) Special leave to appeal to Supreme Court.—High Court’s cetificate Under, Art. 157 (1), Constitution of Pakistan (1956) Re : appeal to Supreme Court—Challenged on ground of incompetenc of Judge—Special leave granted by Supreme Court, during hearing of appeal, on request of counsel—Constitution of Pakistan (1956) Art 160. [pp 401, 420]C, D

(c) Laws (Continuance in Force) Order (Post Proclamation 1 of 1958), Art. 2 (7) read with Arts. 2 (1) and 4(1)—Writ proceedings re : wakf property acquired by Government under S. 3 East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)—Writs based on plea that wakf a “religious institution” and so protected under Fundamental Right asiured by Art. 18 (b), Constitution of Pakistan (1956)—Cases coming up before Supreme Court in appeal, first time before promulgation of Law Order—Supreme Court remanding cases for determining to what extent dedications involved came within definition of religious institution and accordingly, protected by Art, 18 of Constitution, as well as for granting such relief as High Court may consider appropriate—Cases coming up, second time, before Supreme Court in appeal by special leave, after grant of relief by High Court by writ of mandamus—Appeal heard by Supreme Court after promnulgation of Laws Order—Held (by majority: Per Muhammad Munir, C. J.; Shahabuddin and Rabman, JJ., agreeing) proceedings in writ had abated under Art. 2 (7), Laws Order—Constitution of Pakistan (1956), Art. 4—Existing laws contravening Fundamental Rights regain their full operation on abrogation of Constitution—New law offending Fundamental rights not ab initio void (per majority: Mohammad Munir, C. J., Shahabuddin and Rahman, JJ.; Cornelius and Aniiruddin Ahinad, JJ. (contra)—Repeal and Abrogation—Distinction.

Certain wakf properties were acquired by the Government of East Pakistan by notifications under section 3, East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951). Writ petitions based on the Fundamental Right guaranteed. by Article 18 (b), Constitution of Pakistan (1956) raising the plea that the wakf were a “religious institution” within meaning of that Article and thus protected against acquisition, were dismissed by the High Court.)

Appeals from the orders of dismissal came up before the Supreme Court.)

The Supreme Court, by their judgment dated 17th January 1957 (Jibendra Kishore Chowdhury etc. v. Province of East Pakistan P L D 1957 S C (Pak.) 9, remitted the petitions “to the High Court for dterrninlng the question as to what extent the dedications involved in them come within the definition of religious institution and are acaordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances. . . . . . .”

The High Court, dealing with the case on remand, eventually issued writs of mandamus directihg the Government to withdraw the notifications by which they had acquired the wakf properties. [*390]

The Provincial Government, thereupon, took apeal by special leave to the Supreme Court against the grant of writs.

When the appeal came up for hearing, the Laws (Contin˘ance in Force) Order (Post-Proclamation I of l958) was in operation. Article 2 (7) of the Laws Order provided 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.”

So far as interpretation of this provision was concerned the case was covered by precedent. The Supreme Court in The State v. Dosso [P L D 1958 S C (Pak.) 533], interpreting the above and other provisions of the Order had declared that the so-called Fundamental Rights “are not a part of the law of the land and no writs can issue on their basis.”

At the hearing, the counsel for respondents contended that there was no substance in the appeal of the Provincial Government, that the direction issued by the Supreme Court while remanding the case was a mere ministerial instruction to the High Court to issue the writs if the properties were found to be wakf and that the function of that Court was limited to determining the sole issue whether the dedications were or were not Wakfs, that if it found the dedications to be Wakf, it had no alternative but to issue the writs because the question of the applicability of Article 18 to Wakfs had been determined by the Supreme Court, and that therefore, the writs issued by the High Court did not fall within the prohibition of Article 2 (7), Laws (Continuance in Force) Order (Post-Proclamation I of 1958).

It was further contended that by reason of Article 4 of the late Constitution, all laws which were inconsistent with any, of the Fundamental Rights were struck down when that Constitution tame into force on the 23rd March 1956, and having ,thus been struck down they were effaced from the statutebok and were not in force immediately before the Proclamation within the meaning of Article 4 (1) of the Laws Order.

Held, [Per Muhammad Munir, C. J., Shahabuddin and Rahman, JJ., agreeing] that the writ applications giving rise to the appeals had all abated under clause (7) of Article 2 of the Laws (Continuance in Force) Order (Post-Proclamation I of 1958) :

“When in compliance with the order of remand the High Court investigated the existence of the wakfs and after investigation applied Article 18 to them, it was acting judicially, in a pending case. Had Article 18 itself been abrogated before the proceedings terminated in that Court, the direction in the order of remand to apply that Article would have become infructuous and abortive and the High Court would have been bound to apply the law, as it existed when it decided to issue the writs. The order of the High Court being sub judice before us on special leave to appeal having been granted, we are bound to apply the law as it exists today and since Article 18 is no longer available to impeach the notifications we cannot allow the writs to operate The applica-[*391]-tions for writswere founded and are still foundËd on Article 18 and not on the ordinay law as though by the previous decision of this Court that law had. been clipped of its offending provisions. The finding in our previous judgments that the law was void because it conflicted with Article 18 could have operation only as long as the reason, of its voidance exjsted. That reason having disappeared, the iaw has full operation and it is conceded that if that be so the present applications would be incompetent under it. Their foundation is a fundamental right that no longer subsists and is not available for an attack on the constitutionality of the law under which the notifications were issued. On the contrary the law in force now directs that all such applications shall abate. Even if Mr. Suhrawardy’s contention that with the coming into force of the late Constitution the provisions of the State Acquisition and Tenancy Act were clippped of their offending provisions be accepted, the notifications objected to would be valid as in that case the general provisions of the Act empowering the Government to require all rent-receiving interests would be applicable unless Article 11 be invoked to attack their validity. Therefore unless Article 18 be; resorted to, the acquisitions would he valid even if it be held that the Act is in force but without the provisions that specifically relate to wakfs.” [p. 414]E.

The appeals were not distinguishable from thÈ decision in Dosso’s case (P L D 1958 S C (Pak.) 533). [p. 402]F et seq.

The decision in Dosso’s case did not require revision. [p. 404]G et seq.

As regards counsel’s contention based on Article 4 of the late Constitution, His Lordship observed :

Per Muhammad Munir, C. J.—“It cannot, therefore, be said that the laws which were in conflict with the fundamental rights were not “in force” immediately before the Proclamation of 7th October. They were void so long as they were in conflict with the fondamental rights, but the Constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared. by an amendment of the Consiitution, and they regain their full operation, unaffected by any constitutional limitation or restriction except lack of power. Their validity or voidance has to be judged when a case calling for their operation arises and if the fundamental rights do not exist when a law has to be applied to a case, it must be applied as it was enacted and amended from time to time, without subjecting it to the disability of inoperativeness by a constitutional command which has ceased to govern. The Constitution has been abrogated and not repealed. It has been abrogated because the authority abrogating it did not derive its powers from the late Constitution, but acquired it independently of that Constitution. The present laws have the new authority as their source and there can, therefore, be no question of the repeal of any pre-Proclamation law. A repeal implies that the legislature enactlng it is a legislature recognized by the Constitution which continues and an authority which abrogates the Constitution and the entire legal system and gives recognition to that system only to the extent that it decides upon cannot be said to [*392] have repealed the laws which it has refused to recognise learned Counsel for the respondents endeavoured to make the point, which does not really arise in the present case that a post constitutional law if it contravenes fundamental right is void ab initio like a law enacted by an incompetent legislature. No doubt clause (2) of Article 4 imposes a prohibition on legislation but such legislation, if enacted, is not void ab initio. The c1ause contemplates cases where inadvertently, not deliberately because no legislature would intentionally, disobey a constitutional prohibition, the legislature enacts a law which collides with a fundamental right but the result here is precisely the same as in the case of an existing law under clause (1) of the Article the law is void only “to the extent of such contravention” and not void ab initio like legislation which suffers from the incident of an inherent lack of power.” [pp. 413, 414]H

Attorney-General for Ontario v. Attorney-General for the Dominion (1896) A C 348 ; Sheppard v. Wheeling 30 W Va. 479 ; State of Iowa v. O’Neil 147 Ia. 513 ; Harkishan Das v. The Emperor A I R 1944 Lah. 33; Marbury v. Madison 1 Cranch 137 US 1803; In Carter and others v. The Egg and Egg Pulp Marketing Board for the State Victoria 1942-43, 66 C L R 557 and King v. Brisbane Licensing Court 1920-21, 28 C L R 23 ref.

Per Rahman, J. (agreeing with Muhammad Munir, C J.)—“The term “void” occurring in Article 4 must therefore be construed to mean as “not in operation” or “not enforceable” or “in abeyance”, so long as the supreme law holds the field. It is not the equivalent of “ab initio void” as is the case with an enactment ultra vires the legislative authority. The words “to the extent of such inconsistency” is also a pointer in the same direction.

With the abrogation of the Constitution, on tle promulgation of the President’s Proclamation, the Fundamental rights disappeared from the field entailing the consequence that laws existing on the Statute Book were given a fresh lease of life, by the Laws (Continuance in Force) Order 1958, in their original condition and those of their provisions, which were inconsistent with the Fundamental Rights, haie been revived in their full vigour. The East Bengal State Acquisition and Tenancy Act, 1950 has undergone a similar change, Because of the appeal pending in this Court, the subject-matter of the dispute has become sub judice and in my humble judgment therefore, the appeals are not taken out of the principle laid down in Dosso’s case.” {p. 446]I

Per Cornelius,J., (contra). proceedings for writs out of which the present appeals arise did not abate by the operation of Article 2 (7) of the Laws (Continuance In Force) Order, 1958, but the appeals presented by the Provincial Government are liable to dismissal on the ground that they seek review of the law declared by the Supreme Court, in respect of wakfs and wakfs-alal-aulad, in the Jibendra Kishore case, and in the circumstances, it is neither expedient nor necessary that such a review should be granted. Further, the orders undet appeal are made in implementation of the law as declared by this Court [*393] earlier in the same cses, and are competent on that account. [p. 442]H

Per Cornelius, J.—“In the case of Jibendra Kishore the law was declared to the effet that wakfs and wakfs-alal-aulad, provided they were valid in the eye of the relevant law, were exempt from the expropriatory provisions of the Act of 1950, [East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)] and consequently those, provisions became void to the extent that if power was sought to be exercised in the terms of those provisions, all the Courts in Pakistan would be in duty bound to avoid the action as illegal, being based upon void provision of law. In that view of the matter, it seems to me to be perfect1y clear that when it was conceded before the High Court after the remand that the wakfs and wakfs-alal-aulad in question were valid, it became the duty of the High Court to hold that the expropiatory notices or notifications issued by the Provincial Government under the authority of the provisions in question, were devoid of legal force. The High Court did indeed, by the majority of the Judges, act in that way, and made a direction to the Government to withdraw or rescind the notices or notifications in question. Against that action of the High Court, the. Provincial Government has appealed, and it seems to me to be not open to question that the appeal would be entirely incompetent, assuming that the law which the High Court purported to enforce had been declared by the Supreme Court in the Jibendra Kishore case, except in the very special sense of an appeal seeking a review of that decision. Upon a proper analysis of the grounds of appeal entered before this Court it seems undeniable that what is sought, is initially a review of the judgment in the Jibendra Kishore case, in the formot an appeal” [pp. 433, 434]J

#147;What subsection (I) of the aforesaid Article 4 of the Order of the 10th Oclober 1958, provides is that all laws in force immediately before the Proclamation shall continue in force after that date, and this saves the laws themselves according to their tenor. But it does not have the effect of validating acts performed under those laws, on the basis of provisions which at the time of performance of those acts were rendered void by repugnancy. In other words the notifications issued by the Provincial Government under the authority of the Act of l950 for the acquisition of the estates here in question having been issued under a void law were themselves void, and although that law regained operation in that respect upon the making of the Proclamation, it is impossible to derive from the terms of the Order of the 10th October 1958, or any other, legal instrument a principle in support of tile proposition that the notifications also regained validity. Therefore, despite the fact of the abrogation of the late Constitution, and the promulgation of the Order of the 10th October 1958, it seems to me that when faced with the question whether the order made by the High Court in the present case should be set aside, this Court has no a1terntive but to declare that in the circumstances in which that order w˘made it was in perfect accordance with the declared law of the country as appearing from this Court’s judgment in the Jibendra Kishore case.” [pp 434, 435]K

The appeals “are in my judgment clearly appeals for review [*394] of the judgment of this Court, earlier delivered in the same matters, and I have no hesitation in finding that in the circunistances, review should not be granted.” [p. 436]L

Sobho Gyanchandani P L D 1952 F C 29 and Burah 5 I A 78 ref.

“I am clear in my mind that by the use of the expression “to the extent of such inconsistency” the makers of the Constitution of 1956 laid down by Article 4 a rule of repeal by repugnancy pro tanto, and not a rule of alteration of the law.” [p. 432]M

Per Amiruddin Ahmad, J. (agreeing with Cornelius, J.).—“The main ground of attack is that in view of our decision in Dosso’s case [P L D 1958 S C (Pak.) 533], and the abrogation of the Constitution after the 7th October 1958, these appeals and the petitions giving rise to them have all abated under, paragraph 2 (7) of the Laws (Continuance in Force) Order, 1958. To my mind, in view of the findings 0f this Court as the question of fundamental right in the Constitution was not necessary tp be considered by the Judges of the High Court in disposing of the cases after remand and the writs issued by them were not required to beased on a consideration of fundamental rights, they, were to decide them on the law declared by the Supreme Court. By paragraph. 2, sub-paragraph (3) of the Laws (Continuance in Force) Order 1958, the law declared by the Supreme Court has been made to be binding on all Courts in Pakistan. Therefore, writs could be issued on the law so declared even after the abrogation of the Constitution until the law was changed. So these writs are provided for by paragraph 2 (3) read with (4) of the Laws (Continuance in Force) Order, and therefore do not abate, and these cases are distinguishable from Dosso’s case, which was rightly decided. In that case the question of fundamental rights was a live issue in the appeal before this Court and, those writs were not provided for in the Laws (Continuance in Force) Order. But in the present cases the question of repugnancy to fundamental rights in the Constitution and its effect was already decided at a previous stage of these appeals long before the new Order. Even if the State Acquisition Act be held to be continued by the Laws (Continuance in Force) Order, 1958; in its original form under the new dispensation, and that the law has been changed, the notices of acquisition, which were held invalid by the High Court, against which the writs were issued, continued to be illegal and not in force immediately before the Proclamation of the 7th October 1958 and cannot be held to be continued in force by the said Order. On the merits of these cases also the findings are entirely against the present appellants.” [p. 444]N

(d) Constitution of Pakistan (1956), Art. B (b)—“Religious institutions”—Wakf property such institution—Content of expression explained.

Per Cornelius, J.—The plea “that the property which is the subject-matter of a wakf is not a religious institution betrays failure of understanding of the expression “religious institution”. Such an institution, in relevant respects, does not mean the creator of the trust, or the beneficiaries, or the operator of the trust the property which is the subject matter of the trust, or the gaining of income thereout, or, the distribution of that income, [*395] or the principles governing such distribution, but all these persons and things and actions put together constitute the wakf as an organisation owing its existence to religious tenets which find their expression through this controlled and continuous activity. [p. 422]O

(e) Constiution of Pakistan (1956), Art. 161—Supreme Court’s power of Review of earlier decision—Exercisable not necessarily on an “application” for review—Review on “appeaf”—Ground must be one of substance—Review merely seeking to traverse earlier finding of Court—Not cornpetent— Review may be sought in same case or a later case.

Per Cornelius, J.—“The power of review has been expressly given to the Supreme Court, which replaced the Federal Court under the Constitution of 1956 by Article 161. I do act conceive that the. exercise of this power is necessarily limited in respect of form, so that the proceeding before the Court must be expressly in the form of an application for review of an earlier judgment in order to attract the exercise of the power. The question being one of re-consideration of the reasons upon which an earlier decision of the Court proceeded. I entertain no doubt that the Court may be moved to undertake such reconsideration in the form of an appeal from a judgment, and I do not see that the principle is in any way prejudiced by the fact that the judgment appealed from has been delivered in consequence of, and may even be based expressly upon the conclusions reached by the Court in the earlier case. Upon this view, the plea of res judicata, direct or constructive . . . . . . in bar of fresh contentions being put forward in respect of the matter earlier decided by this Court, can possess no force.”

“But it is necessary that the questiopsraised should be questions of substance such.,as would justify the grant ,of a review in the rdinary ease. A, ground of appeal which merely traverses a n4ingof this Court for the purpose of obtaining a review of such finding with9ntany basis of reason, whatsoever cannot be regarded as a competent or proper ground.” [p. 423]P

It is. immaterial wbther review is sought in the very case of in a latex case., [p. 424]Q

(f) Constitution of Pakistan (1956), Art. 18 (b)—Religious institutions”—Wakf-alal-aulad included in expression.

“In the light of the provisions of the Mussalman Wakf Validating Act, 1913, . . . . . . to require that a wakf in order to qualify as a “religions institution” should also have a public character is not possible. A wakf-alal-aulad for the maintenance and support of the wakif and his family and descendants or even for the payment of his debts out of the income of the dedicated property is according to the said law to be regarded as a valid provided that the ultimate benÈfit goes to purposes recognised the Muslim Law as re1igious pious or charitable purposes of a permanent character.”

A Wakf-alal-aulad is therefore covered by the expression [*396] “religious institutions” occurring in Article 18 (b), Constitution of Pakistan (1956). [p. 424]R

(g) Laws (Continuance in Force) Order (Post-Proclamation I of 1958), Art. 2 (7) read with Art. 2 (1)—Extinguishment. of all pending proceedings in enforcement of Fundamental Rights—Doubtful—Art. 2 (1) repudiates Constitution in form but continues its provisions in practice, subject to expressed will of new Sovereign Authorities.

Per Cornelius, J.—I am still of the view which I. expressed in my dissenting judgment in that case [Dosso’s case (P L D l95, S C (Pak.) 533] viz., that upon examination of the law and tle circumstances, I was left in doubt whether the relevant provisions in the Laws (Continuance in Force) Order, 1958 could be ceristrtied so as to extinguish all pending proceedings of which the dbjcc was direct enforcement of a Fundamental Right.” [p. 436]S

“The consequence of the promulgation of rthat rdec was that the compulsive force of the Fundamental Rights in respect of all laws and all executive actions was at one stroke taken away. That plain conclusion is sufficient to cause the failure of every proceeding before a Court in which the question of the issue of a writ to enforce a Fundamental Right was pending, either as an original matter, or constructively in appeal or revision, in the absence of a saving provision or feature. Was it then necessary for the authorities of the new regime to insist upon every such proceeding being abruptly terminated and extinguished from the very outset? I can imagine that this harsh procedure might have been deemed unavoidable where the pendency of a writ was, in itself, in a large way or in a small way, a threat to the paramount authority of the new regime. But looking through the list of Fundamental Rights, 1 eminot find any one of them (other than that relating to preventive detention, which received special treatment in the Order) which might in itself, by being put into operation, have prejudiced the success of the new regime as it has been observed in operation during the past nine months.” [p. 437]T

The Laws (Continuance in Force) Order, in terms, expressly provided that notwithstanding the abrogation of the late Constitution, but &#q147;subject to any Order of the President or Regulation made by the Chief Administrator, of Martial Law, the Republic, to be known henceforward as Pakistan shall be governed as nearly as may be in accordance with the Constitution”. The provision is, in my opinion, of high importance as furnishing a key, to, the understanding of the true nature of the Martial Rule imposed upon the country by the then President on the 7th October. 1955., The old Constitution was repudiated as to its form but it is possible to read in these words an assurance that its provisions, so far as applicable in the changed conditions, resulting from the dissolution of the Legislatures and the dismissal of the elected Governments, would continue to be applied in practice though subject to the expressed will of the new Sovereign authorities.” [pp. 437, 43S]U

During the past nine months, it has clearly appeared that the [*397] provisions of the late Constitution are indeed being observed, not as a mere matrer of courtesy. or of merely general guidance, but that in actual practice, where the provisions of the late Constitution are applicable in their ternis to matters arising for governmental action, they are being applied according to their terms. Equally, as ainatter of practice where in the circumstances a variation is desired it is supported by the authority of a Presidential Order or a Regulation of the Chief Administrator of Martial Law as the ce may be. Where, on the other hand the ease is one of applica- tion of the provisions in the altered conditions, it seems that discretion is exnised by the executive authorities in making the necessary adaptation to suit the changed circumstances.”

“This degree of adherence to the provisions of the late Contsitution at all levels induces me to make the observation that perhaps the words “shall be governed as nearly as may be in accordance with the late Constitution” have been somewhat undervalued on the last occasion when they were brought up before this Court for examination. The full power and purpose of these words may not have been appreciated at that early date. They may Indeed bean indication that the Martial Law under which the country was placed by the Presidential Proclamation of the 7th October 1958, is different in essential respects from the ordinary conception of Martial Law.” [p. 438]V

“It cannot have been the intention or purpose of Article 2 (7) of the Order to extinguish every pending proceeding which may have been commenced before the Proclamation to obtain relief against a statute or any executive action on the basis of a Fundamental Right. The provision in Article 2 (7) that writs “not so provided for shall abate forthwith” still appears to me reasonably applicable only to such proceedings as might, constitute a threat to the supremacy of the new regime. Such proceedings might be motions for writs directed to a Martial Law authority and these are expressly excluded by Article 2 (4). Such motions commenced pre-Proclamation against an authority since replaced by a Martiat Law authority are treated of in ArtIcle 2 (5), and it is significant that they are not abruptly extinguished. Instead the direction given is that the Court may furnish the Martial Law authority with an advisory opinion. I am inclined to read that as a contra-indication to the existence of any intention to extinguish any pendingh proceedings, merely beeause they seek relief on the ground of a Fundisrnentai Right.” [p. 441]W

(h) Martial Law—Three aspects (1) in relation to military occupation of occupied territory, (2) within municipal sphere for restoring law and order, (3) over a whole cowiir” in circunistances of generaI peace—Explained. [p. 439]X et seq

A K. Biahi and A. B. Mahmud Hossain, Senior Advocates Supreme Court: (A. Hakim and Rao Muhammad Ashfaq Khan, Advocates Supreme Court with them), instructed by Siadique & Co., Attorneys for Appellants.

H S Suhrawardy Senior Advocate Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Curt with him), instructed by S. M. Abbas, Attorney for the [*398]

H. S. Suhrawardy, Senior Advocate Supreme Court (A. T. M. Mustafa, Advocate Supreme Court with him) instructed by S. M. Abbas, Attorney for Respondent in C. A No. 19-D.

H. S. Suhrawardy and Hamid-ul-Haq Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney for Respondent in C. A. No. 20-D.

H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney, acting on behalf of M. A. Khalid, Attorney for Respondent in C. A. No. 21-D.

H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney, acting on behalf of S. S. Huda, Attorney for Respondent in C. A. No. 22-D.

H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney, acting on behalf of M. A. Khalid, Attorney for Respondent in C. A. No. 23-D.

H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and, A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney, acting on behalf of M. A. Khalid, Attorney for Respondent in C. A. No. 24-D.

H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (Nasim Hasan Shah and A. T. M. Mustafa, Advocates Supreme Court with them), instructed by S. M. Abbas, Attorney, acting on behalf of S. S. Huda, Attorney for Respondent in C. A. No, 25-D.

Dates of hearing : Heard at Dacca on May 11, 12, 13, 14 : And Heard at Lahore on June 11, 12, 15, 17, 20 and 22, 1959.

Judgment

Muhmmad Munir, C. J.—These appeals, Nos. 18-D to 25-D. are from a judgment of the High Court of East Pakistan at Dacca making absolute rules nisi requiring the Government of East Pakistan to show cause why writs of mandamus should not issue directing them to cancel, withdraw and rescind certain notifications issued under section 3 of the East Bengal State Acquisition and Tenancy Act, 1950.

The appeals have a history which needs to be briefly stated. By the notifications in question published on 2d April 1956, the Provincial Government of East Pakistan acquired the rent-receiving interests and the lands in the khas possession of the respondents and other rent-receivers. A large number of applications for writs were made by the persons affected by the notifications praying for writs of mandamus against the Government on the ground, inter alia, that section 3 of the Act offended against [*399] Article 5 of the Constitution and was for that reason void and itsoerative. In’ eight of these applications, viz., the cases out of which these appeals arise, the interest acquired related to property held, in wakf and in them the notifications were attacked on the further gourid that they were void by reason of the provision under which they had been issued being in conflict with Article 18 of the Constitution. The applications were dismissed and 59, appeala veto brought to this Court from the judgment of the High Court. (The main point urged in the appeals was that section 3 of the Act, which gave to the Government unrestricted powers to choose the rent-receivers whose interests were to be acquired, were ex facie discriminatory and therefore repugnant to Article 5 of the constitution which decldred all citizens to be equal before the law and entitled to equal protection of the law. In the cases which are now under appeal the further constitutional objection raised was that the property covered by the notifications being wakf the notifications were invalid also for the reason that they interfered with the right of the citizens to establish and maintain religious institutions guaranteed to them by Article 18 of the Consdtution) An elaborate argument led by Mr. Das was addressed to us on these questions and by our judgment dated January 17, 1957 reported as Jibendra Kishore Chowdhury etc. v. Province of East Pakistan (1), we dismissed all the appeals in which the property acquired was not alleged to be wakf. In the appeals in which the rent-receiving interests related to wakf property, we repelled Mr. Brohi’ s contention for the Government that the right to establish and maintain religious institutions could be taken away by law and holding that such right could not be affected by law remitted those appeals to the High Court with the following directions :—

“The result is that all the appeals are dismissed except Appeals Nos. 2-D, 3-D, 4-D, 3, 13, 28, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them corne within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court its its discretion may consider to be appropriate in the circumstances.

The remanded petitions were heard in the first instance by Akbar and Chowdhury, J.J., who differed; One of the points on which they vere not agreed was whether in the remand order this Court had held that if the property in any one of the cases was proved to be wakf it came within the protection of Article 18 (b) of the ConstitutiÙn, Akbar, J., holding that that was not the effect of the order and Chowdhury, J., holding otherwise. Akbar, J., accordingly went into the question whether each of the dedications was protected by Article 18 and found that though the wakfs were religious institutions, the Article restricted the exemption to religious institutions in the maintenance and management of which a denomination or a sect as such was interested and that since in a dedication for the benefit of children a religious denomination had no common interest, Article 18 (b) was not

(1) P L D 1957 S C (Pak.) 9.

[*400] applicable to it. He then examined the wakf relied upon cadi case. With regard to six of the wakfs there are provisions for the maintenance of dargahs. Further some of the wakfs also provide for the maintenance of dargahs. In my opinion, dedications for the maintenance of mosques and dargahs are religious institutions within the meaning of Article 18 (b) of the Constitution.” Regarding the other charities and religious ceremonies for which the wakfs had, been established he said, “These wakfs also provide for the performance of various religious ceremonies and for other charities. I did not receive much assistance from the learned advocates with regard to these dedications. On the material before me. it is not possible to decide whether all or any one of them should also get the protection of Article 18 (b).” Nevertheless, he issued the required writs in so far as the acquisition of khas lands was concerned, the ground of the decision being that in publishing the.notifications the Government had not followed Rules 26 and 37 and had not stated the exceptions as required by Form No. 2-B. The remaining two petitions were dismissed by him because the notification attacked in them had also been called in question in suits whieti had been decreed. Apprehending a conflict between the judgment of the High Court and that of the Subordinate Court he refused the writs in the exercise of his discretion. Chowdhury, J., hovever was of the view that the question whether Article 18 (b) protected dedications which were valid wakfs under the Muslim Law had been decided by the Supreme Court and that the only question remitted to the High Court for decision was whether the dedications in fact amounted to wakfs. If they did they were protected by Article 18. He further held that even if the question could be re-agitated before the High Court, each of the dedications came within the definition of a religious institution, and rejected Mr. Brohi’s contention that in order to receive the protection or Article 18 a religious institution must he one in the maintenance and management of which a denomination or sect as a whole was interested. As the two Judges differed, the matter was placed before Ispahani, J., in accordance with. the procedure provided by clause 36 of the Letters Patent. Ispahani, J., agreed with Chowdhury, J., with the result that writs of mandamus were issued directing the Government to withdraw the notifications. On an oral request by Mr. Brohi on behalf of the Government, however, the learned Judge certified the case to be a fit one for appeal to this Court on the ground that it raised substantial questions relating to the interpretation of the Constitution within the meaning of Article 157.

After we had heard the appeals for a few days at Dacca and for about a week here, Mr. SuhraWardy raised the question that the appeals were incompetent, the ground of the objection being that Ispahani, J., alone was not the High Court within The meaning of Article 157 and, therefore, had no jurisdiction to certify the case. It may be mentioned that the formal order which was drawn up by the Deputy Registrar and witnessed by the Chief Justice on 20th December 1958, had directed :—

“And it is further ordered that the prayer for a certificate under Article 157 (1) of the Constitution be and the same is hereby granted; as this case involves substantial questions of as to the interpretation of the Constitution.”

Subsequntly, the appeals to the Supreme Court were admitted by a Division Bench of the High Court consisting of the Chief Justice and Sattar, J., under Order XLV, rule 8 of the Code of Civil Procedure. The respondent on whose behalf the objection to the competency of the appeals is now raised fully co-operated in the preparation or the printed record by filing after the admission of the appeals a complete list of the documents they wished to be included in the record of the appeals before this Court.

Mr. Suhrawardy has drawn our attention to the Rules of the Dacca High Court in support of his contention that the certificate should have been granted by the ‘Appellate Court’ as defined by tue Rules. We are, however, unable to discover any such direction in those Rules so far as the grant of a certificate is concerned, and it seems to be a common practice in the Dacca High Court, based on the practice of the Calcutta High court while section 205 of the Government of India Act was in force, for a Single Judge or a Division Bench, difierent from the ‘Appellate Court’ to grant a certificate in cases where a substantial question relating to the interpretation of the Constitution is raised and decided. This certificate is given without any express direction of the Chief Justice for the constitution of a Bench for the purpose, and 1 do not see why the rule should be different where on a difference of opinion the case is referred to and decided in accordance with the opinion of the third Judge. I do not, however, consider it necessary to decide this question becau.e even if the certificate be invalid there are other courses open to die appellant to bring the matter before this Court. He can again apply or revive his application to the Dacca High Court under Article 157 ; the value of. the consolidated cases must he above Rs, 15,000 so as to make an appeal as of right to this Court competent; and this Court itself can in all cases grant special leave to appeal if it considers a matter to be a fit one for such leave. Mr. Brohi made a request to us to give him special leave to appeal and in view of the fact that two Judges of the flhigh Court had differed from each other and the matter has been before us for almost a fortnight we have in order to avoid multiplicity of proceedings, acceded to Mr. Brohi’s request and given special leave to appeal on the grounds decided against him in the High Court.

Mr. Suhrawardy contends most earnestly, and quite understandably that the questions raised by Mr. Brohi before the High Court were withut any substance and that. for that reason the present appeals are illusory, but I do not see how we can ignore Ahe distinction, in this case of vital importatce as will presently appear, between a wholly incompetent appeal and an appeal mpetent but having little or no force. The appeals cannot herefore be thrown out merely on the ground that if we had he jurisdiction to consider them, we would have dismissed them on the merits.

There being, thus, valid appeals before us the first question [*402] to be determined is whether the applications for ªriis togthe. with all subsequent proceedings including the ori1rof remand, have abated under Article 2 (7) of the Laws (Continuance iti Force) Order, 1958. This resolves itself into the questions

(1) whether the present appeals are distinguishable from the decision of this Court in Dosso’s case (1)

and

(2) Whether that decision, in view of the more comprehensive arguments addressed in the present case, requires revision.

The grounds on which Dosso’s case is sought to be distisnguished is that in that case the matter had not at an earlier stage come up to the Supreme Court before the promulgation of the Laws (Continuance in Force) Order, whereas in the present ce the Supreme Court long before the coming into force of tifat Order had held in regard to the notifications in question that if the property covered by them was wakf then the law under which there had been issued came into conflict with Article 18 (b) and was, therefore, void by reason of Article 4 (1) of the Constitution. It is further contended that by this Court’s judgment dated ihe 17th January 1957, the East Bengal State Acquisition and Tenant Act, 1950, to the extent it permitted acquisition of rent-receiving intereits in ivalcf properties, was declared void and accordingtly stood annulled pro tanto before the Laws (Continuance in Force Order came into force, with the result that the applications for writs in the present cases are no longer to be cortidered as based on a fundamental right, but are to be treated as application under the ordinary law as continued in force under Article 4 of that Order. In order to show that this Court had held wakfs to be religious institutions within the meaning of Article 18 of the Constitution several passages from its judgment have been repeatedly read in the course of arguments, and Mr. Suhraward has vehemently urged that the direction issued by this Court remand was a mere ministerial instruction to the High Court to issue the writs if the properties were found to be stakf and that the function of that Court was limited to determihing the so issue whether the dedications were or were not wakfs. If it found the dedication to be wakf, it had no alternative but to issue the writs because the question of the applicability of Art. 18 to wakfs had been determined by this Court. I have given anxious con- sideration to this argument, but find myself unable to accept it, What we held in our previous judgment was that because some of the properties acquired were alleged to be wakf, the Act in so far as it empowered the Provincial Government to acquire sud properties must yield to the direction of the Constitution that citizens shall have the right to establish and maintain religious institutions. We did no more than espouse the law on a certain supposition and left it to the High Court to apply it to the facts to be found by it on investigation. If on investigation the dedications were found to be wakfs, then under the law dedicated property could not be acquired by reason of Article 18 and in that event the High Court was to exercise its dicrtion it granting or refusing relief. The determination of every right or

(1) P L D 1958 S C (Pak.) 533

[*403] liability claimed or asserted in a loegal proceeding depends upon the ascsrtainment of facts and the application of the law to the facts so found. It is a normal feature of the judicial process first to discovaer the facts and then to determine what rights and liabilities follow from the application of the law to the facts found. It sometimes happens however, that the law is declared or expounded by a superior Court an the assumption that certain facts exists This is particularly so where a fact was alleged by a party but the case was decided by the trial Court on the assumption that even if the alleged fact was supposed to exist, the right or liability claimed could not be inferred under the law. This is precisely what happened in these cases according to the view taken by the High Court even if the property was wakf it could be acquired by the Government and, therefore, the question whether dedications did or did not athoiint to wakf was not by that Court. The Supreme Court differed from the High Court in this view and held that if the ptoperties Were wakf they belonged to religious institutions the establishment or maintenance of which was guaranteed by Article 18 (b) and that, therefore, they were not liable to acquisition by the Government. We merely explained the law that had to be applied if the High Court lound the properties to be wakf, but we ourselves did not apply the law because did not determine the facts nor was any such determination by the High Court before us. In fact the precise reason for the remittal of the applications was that the High Court had not determined whether the dedications were or were not wakf, and the law as expounded by the Supreme Court could not be applied until that question was determined. Article 18 had to be applied after the dedications were found to be valid wakfs, there being no earlieroccasion for the application of that. Article because the requisite facts had not till then been determined. The function of the High Court was not, therefore, thereby ministerial as contended by Mt. Suhrawardy, but essentially judicial because the ascertainment of tacts and the application of law to them was left to the High Court. If, therefore, before the High Court bad applied to the facts the law as expounded by us, the law itself was changed by a competent legislative authority and made applicable the pending applications, the High Court was bound to ignore our statement of the law and to apply the law which was in force at the time it had to adjudicate on the existence of the right that had been asserted in the original applications. Thus there can be no manner of doubt that if the Laws (Continuance in Force) Order had come into force while the High Court was investigating the facts or before it was called upon to apply the law to the facts foustd by it, it was the law contained in that Order which, would have governed the rights and liabilities of the parties and not the law a expounded by us. The law as declared by the Supreme Court; though binding on all Courts is not sacrosanct or inviolable in the sense that no legislature in the country can alter it. As observed by us in the case of Dosso the present levai system derives its authority from the success of the October Revolution, and if the authority in whom, under the new regime, unfettered legislative powers vest, annuls or alters the law declared by the Supreme Court, the superseding, law has supremacy over and prevails against the Original law as declared by the Supreme Court. The High Court [*404] would; therefore, have been bound to declare cations to have abated if clause 7 of Article 2 of the Laws (Continuance in Force) Order had come into force before the rules were made absolute by that Court. And since the application are now before us for final adjudication, especial leave to having been given to the Government the decision has to governed not by the law as was in force when we remanded the application to the High Court but by the law that is in force today. There is, therefore no distinction between the present cases and Dosso’s case, and it is conceded that if, these appeals are governed by the decision in that case, the applications which gave rise to them must be held to have abated unless we revise that decision.

I may now take up the question whether there are sufficient grounds for reviewing or revising the view taken by this Court in the case of Dosso. In approaching that question the ftrst thing to be seen is what that case actually decides. In the jndgmrtt that was under appeal in that case some prtvisons of the Frontier Crimes Regulation had been held to be void because of their being inconsistent with a fundamental right and, before the appeal came up for hearing, the Laws (Contintiation in Force) Order was promulgated by the President. The Court held that after the coming into force of that Order no law could be declared or held to be void merely because it came into conflict with a fundamentiti right and that all pending applications for writs in which a law by reason of Part II of the Constitution had to be found to be still in order to grant the relief prayed for by a party had abated by the force of clause (7) of Article 2 of that Order. The Court arrived at this result by reading Article 2 (4) with Atticle 4 (1) of the Order and by holding that after the promulgation of that Order Part II of the late Constitution had ceased to be available to adjudge the invalidity of the laws that were in force immediately before the Proclamation. The matter had not then been so fully and ably argued as now, but despite the ingenious and at times far fetched arguments addressed, I am convinced more that before that case was rightly decided. A plain reading of clause (7) of Article 2 would show that that clause divides writs into two categories, i.e., (1) writs “provided for by this Order” and (2) writs “not so provided for”. In the case of writs falling under the first category the Order declares that such writs may be issued by the Supreme Court as well as by the High Courts, and that the writs of this class already issued and the orders for such writs already made are valid whether the orders were made by the Supreme Court or by the High Courts. As regards the Writs falling under the second category the clause says that if such writs, were issued by the Supreme Court after the Proclamation and before the Order, a mere matter of three days, the writs and orders for them would be valid and binding on all Courts and authorities in Pakistan but that if they were not issued or made by the Supreme Court, e.g., where they were issued or made by the High Court they are not to take effect, and that all applications for such writs and all proceedings taken in respect of such rights shall abate. Mr. Hamid-ul-Haq Chowdhury’s argument that a part of the Constitution including Part Il which deals with the fundamental rights is saved by Article 2 (1) of the Order and that [*405] when Article 4(1) of that Order provides that laws other than the late Constitution which were in force immediately before the Proclamation shall continue in force, what is meant is that only those parts of the late Conttitution which have not been saved by Article 2 (1) shall no longer be in force. And when asked, what are the writs which are declared by Article 2 (7) as being of no effect if issued between the date of the Proclamation and the coming into effect of the Order, he suggested that possibly the reference is to writs issued during those three days to the Martial Law Authorities mentioned in clause (5) of Article 2 or to the matters which cannot be called in question under Article 3. Neither of these suggestions can be accepted for the simple reason that the Constitution having been abrogated with the Proclamation the draftsman of the Order could not have considered the isrcancc of such writs a possibility or any provision in regard to them worth making. Further when the clause refers to writs “provided for by this Order” the reference is to the kind of writs that may be issued and the law on the basis of which they may be issued and not to the authorities to which they may or may not be issued, the exemption from the writ jurisdiction being in the nature of an exception to the general rule. In the same manner Article 3 does not specifically deal with writs and prohibits all Courts and persons from calling in question the matters mentioned therein, irrespective of whether they are called in question by an application for a writ or in some other proceedings. Therefore, in order to digcover what are the writs ‘provided for by this Order, we have necessarily to look to some provision in that Order other than Article 2, and if the, basic feature of writs is kept in view, viz., that a writ, whatever its form, is, issued tonly for the purpose of enforcing rights and obligations and obtaining compliance with the law, it becomes abundantly clear that the basis for such writ Must be the laws which are declared to be in force by Article 4 (1), and from that corpus furls the Constitution has been expressly excluded, to indicate as plainly as possible that no writ may issue in tutu’rexcept under the authority of laws, other than the late constitution

I have given full reasons for the conclusion I arrived at in case that the direction in Article 2 (1) of the Order that Pakistan shall be governed as nearly as may be in accordance with die late Constitution has reference to the slructurc.aiid outline of Goverrnnent and not to the laws, including the law of the Constitution, which is the subject-matter of Art. 4 (1) of the Order and that Article 2 does not have the effect of preserving the fundamental rights. And the arguments to the contrary advanced now have fully confirmed me in that conclusion. Mr. Hamidul Huq Chowdhury’s contention, if accepted, would cast on the Courts the duty to ascertain from the general direction qualified by the discretion implied. in the expression ‘as nearly as may be’ in Art. 2 (1) the precise part of the law of the Constitution that ‘ws bden saved and would have the effect, despite a clear direction Art, 4(1). that the late Constitution is not to continue in force, of keeping alive an undefined portion of that Constitution as law. A more confusing state of affairs in the administration of the laws is difficult to conceive. Any such interpretation would be inconsistent with the clearly defined scheme of the short document [*406] which has been described by Mr. Hamidul Huq Chowdhury himself as the shortest Constitution in the world and by Mr. Brohi as a singularly ingenious piece of constitutional legislation. Add to this the simple constitutional theorem tbat fundamental rights are more or less permanent and may be abridged or extended only by a special legislative process, that iii their essential characteristics they amount to restrictions on legislative and executive action, that their enforcemert against such action depends on. the powers of the judiciary, that at the present moment the Constitution stands abrogated and the entitÈ legislative and executive authority vests in the President and the Chief Martial Law Administrator, that the powers of the Courtt themselves are subject to Orders of the President and Chief Martial Law Administrator and the argument in favour of the present existence of such rights gets into self-evident contradictions making their inferential continuance a complete impossibility.

I now proceed to examine the validity of Mr. Suhrawardy’s arguments that by reason of Article 4 of the late Constitution, when that Constitution came into force on the 23rd March 1956, all laws which were inconsistent with any of the fundamental rights were struck down and having thus been struck down they were effaced from the statute book and were not in force immediately before the proclamation within thÈ, nleaning of Article 4 (1) of the Order. I shall presently examine the fallacy underlying this reasoning but it may be mentioned en passant that if this be the direction of Article 4 (I) and all, !iws at’portio’ns thereof which were inconsistent with any of the fundamental rights guaranteed by Part II were expurgated or excised on 23rd March 1956, and the laws so truncated were the only laws in force,, then there can be no question of any such laws coming into, conflict with the late Constitution because ex hypothesi the offending, parts of thc laws had been expunged. There would then be no occasion to say that certain writs shall bave no effect or that applications for certain writs shall abate because all writs and applications would in that case be ‘provided for by this Order’, and the provision in that clause that certain writs and orders shal1 have no effect and all applications and prcaeedizlgs in respect of certain writs shall abate, will be entirely otiose.

The burden of the argument against the abatement of the applications out of which these appeals arise is that a law which by reason of its conflict with the supreme law of the Constitution was void cannot be said to have been in force immediately before the Proclamation, and that, therefore, Article 4 (I) of the Order does not have the effect of continuing it in force. In order to deal with this argument it is necessary to examine the place which the fundamental rights occupy in the scheme of the ConstitUtiO, their scope and extent, and the incidents to which they are subject. On a perusal of Part II of the Constitution it would be found that these rights are not common to all persons entitled to go to Court; that they do not apply to the whole of Pakistan because Special Areas are excluded from their operation ; and that they are not ol constant opeIation, because they are liable to suspension in accordance with the Constitution. Article 192 provides that while a Proclamation of Emergency is in operation, the President may, by order, declare that the right to move any Court for the enforcement of such of the rights co,nferred,by Part Il as may be specificd in the rder, and a proceedings pending in any Court for the enforcement of the rights so specified shall remain suspended for the period during which the Proclamation remains inforce. The rights are, therefore, not universal in the sense that they apply to all persons and obtain for all times. Their true effect is stated in Article 4 which declares that any existing law “in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such Inconsistency, be void”; and that if the State makes any law which takes away or abridges a fundamental right such law shall “to the extent of such contravention, be void”. Another instance where a law may be void is mentioned in almost identical terms in Article 110 which provides that if on a matter enumerated in the Concurrent List the Parliament and the Provincial Legislature have both legislated and there is a conflict between the two laws, “the Act of the Provincial Legislature shall, to the extent of therepugnancy, be void”. As the whole argument is based on the law being “void”, the essential question to be determined is whether the law is void in the abstract or only if, and to the extent to which, it comes into collision wfth a paramount law. To put it in a different way, are the laws void in the sensÈ of their ceasing to exist once they come into conflict with patamount law or do the laws exist and are in force but have to be disregarded or ignored to the extent they come into collision with paraniciunt law in the decision of a case? The Constitution of the Unit Èd States contains no such provision as Article 4 of the late Constitution and the words “void”, “invalid”, “not law at all”, “a futile attempt at legislation”, have consequently been used repeatedly by the ‘American Judges to express situations where a law yields to a basic right guaranteed by the Constitution whenever the two come into conflict. Article 3 of that Constitution delegates to, the Supreme Court “the Judicial power” which by its express language extends only to “cases” and “controversies”. In the judgments delivered beforewhat has been detcribed as the constitutional revolution of 1937 the word “void” is in a more general and comprehensive sehse and it is in that sense that pre-1937 constitutional writers have, used it in their works. But one principle that clearly emerges from the recent decision of the Supreme Court and the State Courts is that the Court does not veto, annul or revise legislation and that its sole function is to pronounce for or against the litigated right or liabillity by determination of the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases. The Courts do not therefore decide abstract, hypothetical or contingent questions or give mere declarations in the air. The determination of an abstract ocettion of constitutional law divorced from the concrete facts of a case floats in an atmosphere of unreality: it is a determination in vacuo and unless it amounts to a decision settling rights arid obligations of the parties before the Court it is not an instancer of the exercise of judicial power. There are some weighty observations on this subject by the Privy Council in [*408] Attorney-General for Ontario v Attorney-General for the Dominion (1) where Lord Watson said ;—

“Their Lordships will now answer briefly, in their order, the other questions submitted by the Governor-General of Canada. So far as they can ascertain from the record, these differ from the question which has already been answered in this respect, that they relate to matters which may possibly become litigious in the future but have not as yet given rise to any real and present controversy. Their Lordships must further observe that these questions, being in their nature acadeniio rather than judicial, are better fitted for the consideration of the officers of the Crown than of a Court of law. The replies to be given to them will necessarily depend upon the circumstances in which they may arise for decision ; and these circumstances are in this case left to speculation. It must, therefore, be understood that the answers, which follow are not meant to have, and cannot have, the weight of a judicial determination, except in so far as their Lordships may have occasion to refer to the opinions which they have already expressed in discussing the seventh question”.

And it is a simple deduction from this principle that anyone who challenges the constitutionality of a law must raise a case in the decision of which he has real and personal interest, in the sense that as an individual he would be adversely affected if the law which operates against him is not found and declared to be unconstitutional. He cannot move the Court as pro bono publico or merely as a ‘tax payer’ unless the constitutionality of the statute which taxes him is itself in question. Therefore the only method known to the American Jurisprudence for a declaration as to the invalidity of a law is the judicial method which is set in motion by the institution of a case. If in the determination of that case a law comes into conflict with a provision of the Con- stitution the Judge decides not according to the law but according to the Constitution, the conflicting law yielding to the supreme law. Acting in this manner when the Ccturt determines the extent of the conflict between the ordinary law and the supreme law it has necessarily to declare that the law to the extent of its conflict with the supreme law is void. From this declaration a general proposition may be formulated that a certain law is void but what is not to be overlooked is that the declaration is made because it is considered to be necessary for the determination of the right or liability in issue in the suit. This process is so well- established that it has come to be described in the United States as “ government by law suit”. The effect of a declaration of the invalidity of a law in this manner is well stated in the decision of the Court of West Virginia in Sheppard v. Wheeling, (2) approvingly cited in Willoughby Vol. I. P. 10, 2nd Edition, in thÈ following words :—

“(The court) does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines the rights of the parties just a if such statute had no application. The court may give its reasons

(1) (1896) A C 348

(2) 30 W VA. 479

[*409] for, ignoring or disregarding the statute, but the decision affects the parties only and there is no judgment against the statute. he opinion or reasons of the Court may operate as a pre- cedent for the determination of other similar cases, but it does not strike the sta.te from the statute book ; it does not repeal the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and basis of the fundamental rule that a Court will never.pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it”.

And the same rule was enunciated in State of Iowa v. O’Neil (1), where the Court remarked :—

“A statute unconstitutional properly remains on the statute books as a part of the written law, but those who are bound to obey the law may, we think, reasonably take into account the decisions rendered by the Courts in the exercise of their peculiar function of passing upon the constitutionality of the statutes indetermining what the law of the State really is”.

ln Harkishan Das v. The Emperor (2) where a law was challenged on the ground of delegated legislation I had this principle in mind when I said :—

“It follows from these considerations that we cannot enter upon and determine questions of constitutionality unless it is necessary for determining the position of the parties to the litigation and the disposal of the case before us. It is not the function of any Court to veto or directly annul a law made by a non-sovereign law-making body. Upon any particular case coming before it the decision of which depends upon the validity of a law made by a non-sovereign law-making body the function of the Court is to decide for the purposes of that particular case whether the law is or is not within the powers conferred on that body by the Act of parliament from which it derives its authity to legislate and to give judgment in the case according to the Court’s view of the validity of the law”.

The essential steps of a judicial process are the ascertainment of facts, determination of the law applicable to the facts found or admitted, an inference as to the existence or otherwise of a right or obligation from the determination of the law and a decision as to the final order to be made in respect of such right or obligation. Since the ultimate object of such process is the riforcethdnt of a right or obligation, every step of the process has a necessaty reference to and is limited by that object . It is only. when the law applicable to the facts has to be determined that the situation with which we are dealing arises, viz., conflict respect of the right or obligation litigated upon there is a confItct between one law and another, and the Judgehas to decide which of the conflicting laws he should follow. This position has been

(1) 147 Ia. 513

(2) A I R 1944 Lah. 33

[*410] described in Marbury v. Madison, (1) by Johh Marshall the greatest Chief Justice of the United States Suprerne Court, in the following words :—

“If a law be in opposition to the Constitution ; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the Law ; the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty”.

The supremacy of the constitutional law in the American systens follows from the constitutional direction that the Constitution shall be the supreme law of the land, but our Constitution which has now been abrogated contained no such direction but attained the same result by declaring by Article 4 the law to be void to the extent it came into conflict with a fundamental right. The first essential step for the application of Art. 4, therefore, is to reach a situation where the conflict arises and to determine the precise extent of that conflict. The resolution of such conflict is necessary not for general purposes but for the decision of a particular right or liability. While discharging this function the Court is not face to face with avoid but with an existing law struggling for its recognition and enforcement and which has to yield to another law only because of the latter’s superior strength.

A similar situation arises under federal constitutions where concurrent powers of legislation are enjoyed by the states or the provinces and the Centre. 1f both legislatures legislate differently on the same subject, the constitution generally provides that the central law shall prevail and the state law or the provincial law shall be void to the extent it comes into conflict with the former. In the Australian Constitution the word used is not ‘void’ as in our Art. 110 but ‘invalid’. This, however, makes no difference. In the Privy Council case, Attorney-General for Ontario v. Attorney- General for the Dominion (2) the words used to declare the effect of the provincial law which comes into conflict with a central law is that such law is in abeyance or inoperative. in desbribing this state of the provincial law Lord Watson said :—

“The question must next be considered whether the provincial enactments of S. 18 to any, and if so to what extent Ùo,me into collision with the provisions of the Canadian Act of 1886. In so far as they do, provincial must yield to the Dominion legislation, and must remain in abeyance unless and until the Act of 1886 is repealed by the parliament which passed it.

“For the same reason, provincial prohibitions in force Within a particular district will necessarily become inoperative whenever the prohibitory clauses of the Act of 1886 have been adopted by that district.

“Their Lordships, for these reasons, give a general answer to the seventh question in the affirmative. They are of opinion that the Ontario Legislature had jurisdiction to enact S. 18, subject to this necessary qualification, that its provisions are or will

(1) 1 Cranch 137 U S 1803

(2) (1896) A C 348

become inoperative in any district of the province which has alieady adopted; or may subsequently adopt, the second part ; of the Canadian Temperance Act of l86”.

In Carter and others v. The Egg And Egg Pulp Marketing Board Stute of Victoria (1) the following qbservations arc to be found at p. 573 :—

“I come therefore to arguments based upon section 109 of the Constitution. That section is as follows :—

‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of, the inconsistency, be invalid’. This section applies only in cases where, apart from the operation of the section, both the Commonwealth and the State laws which are in question would be valid. If either is ‘invalid’ ab initio, by reason of lack of power, no question can arise under the section. The word ‘invalid’ in this section cannot be interpreted as. meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative (R. v. Brisbane Licensing Court : Ex-parte Daniell, per Higgins J.)—of Attorney-General for Ontario v. Attorney-General for the Dominion and Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. Thus the word ‘invalid’ should be interpreted as meaning ‘inoperative’. This is, I think, made clear by the provision that the Commonwealth law ‘shall prevail’—that is, the Commonwealth law has superior authority and takes effect to the exclusion of the inconsistent State law.

In the King v. Brisbane Licensing Court (2) which again was a case of conflicting concurrent legislation, the Court said at p. 29 :—

“Then section 109 of the Constitution enacts that in such a case the State law, to the extent of the inconsistency, is invalid. In the presence of the conflicting Commonwealth law, the State enactment, pro tanto, disappears, and the vote, according to the only Australian law on the subject, has been illegally taken. The necessary result is that the illegal vote cannot be the basis for anything which requires as a condition the taking of a lawful vote.”

And the dissenting Judge, Higgins J., said at page 33 :—

“We are dealing with a territory which is subject to two different parliaments, each competent to make laws within its own ambit of powersThe Queensland Act, Sec. 172, as to the day of polling is, not either repealed or amended. The words of Sec. 172 stand ; and if Sec. 14 of the Federal Act were repealed to-morrow, the direction in the Queensland Act to take the poll on the day of the Senate election would be binding, as part of the Queensland law, without re-enactment. The authority to take the poll on that day continues, so far as the State law is concerned ; Sec. 172 still lives, subject to the pressure of the Federal Act.—like Jack-in-the-box under his lid. The question is, how far does that pressure extend. The State law says that a poll taken on that

(1) 1942-43, 66 C L R 557

(2) 1920-21, 28 C L R 23

[*412] day shall have certain consequences in this case;that the licenses shall be reduced, that the licensing Court shall exercise its functions and select the licenses to be cancelled. The Federal law does not say that the poll shall not have these, consequences. It merely says that no poll shall be taken on the day, and imposes a penalty on those who disobey. Under Sec. 109 of the Constitution, the State law is invalid only ‘to the extent of the inconsistency; and there is no inconsistency—no direct inconsistency at all events. It would seem, therefore, that the State law remains in its full efficacy, except that those who held the election on the Senate election day are liable to certain penalties. I fancy that some confusion arises from treating Sec. 14 of the Federal Act as being incorporated in the State Act. It is not. For the purpose of Sec. 109 of the Constitution the two Acts are to be regarded as Acts otherwise valid but in collision; and the State law yields only to the extent of the collision”.

That a law may be in force though it is not operative is contemplated by Article 4 (2) of the Order itself which provides that a law is said to be in force if it has effect as law whether or not the law has- been brought into operation.

To sum up, the law described to be voidby Article 41 by reason of its conflict with a fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extend and in respect of such territories and persons the law had full operation but because it was void only in the sense that in the decision of a particular case which brought it into conflict with a fundamental right it had to be ignored or disregarded. The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re-enacted. That this was the sense in which the word ‘void’ was used by the framers of the Constitution becomes perfectly dicar from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended. On such suspension being ordered the 1awbecornes immediately operative without its being re-enacted. if the law was void ab initio, that is to say, if it did not exist on the statute book, it would require re-enactment on the making of an order suspending the operation of fundamental rights. Mr. Subrawardy has gone to the extent of contending that the effect of word ‘void’ as used in Articles 4 and 110 of the late Constitution is that the conflicting law can never be deemed to have been in existence and that if by an amendment of the Constitution or by the making of an order by the President suspending the fundamental rights or by the repeal of the conflicting central legislation the inconsistency, repugnancy or contravention is removed, the law must be re-enacted afresh. He is driven to this result by the logic of his own argument, only to find that the position in which he thus lands himself is wholly unsustainable and directly opposed to the entire trend of authority. The contention, if given effect to, would lead to startling results and the most unmanageable situtatjon which [*413] were far beyond the contemplation of the framers of the Constitution. The position may be, and is indeed different where the legisiature suffers from an inherent lack of power to enact a law. Such law is void, ab initio and must be deemed never to have been enacted, and if it exists on the statute book, it has no legal sanction and is essentially of the nature of an unauthorised writing on the statute book. Even if the defect of 1ack of jurisdiction is removed by a subsequent conferment of the requisite legislative power, the law enacted when no such power eixisted wil1 continue to be void and will create no rights or obligation unless it be re-enacted. There is thus a fundamental difference between a law that is made by an incompetent legislature and a law made by a competent legislature but which is in conflict with a fundamental right, the former being void on general principles the letter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re-enacted by a competent legislature, the latter requires no re-enactment and as pointed out in the Australian cases cited above, becomes fully operative when the inonsistency or repugnancy is removed by an amendment of the Constitution or the central law. It cannot, therefore, be said that th laws which were in conflict with the fundamental rights were not “in force” immediately before the Proclamation of 7th October. They were void so long as they were in conflict with the fundamental rights, but the constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared by an amendment of the Constitution, and they regain their full operation, unaffected by any constitutional limitation or restriction except lack of power. Their validity or voidance has to be judged when a case calling for their operation arises and if the fundamental rights do not exist when a law has to be applied to a case, it must be applied as it was enacted and amended from time to time, without subjecting it to the disability of inoperativeness by a constitutional command which has ceased to govern. The Constitution has been abrogated and not repealed. It has been abrogated because the authority abrogating it did not derive its powers fromt the late Constitution, but acquired it independently of that Constitution. The present laws have the new authority as their source and there can, therefore, be no question of the repeal of any pre-Proclamation law. A repeal implies that the legislature enacting it is a legislature recognized by the Constitution which continues, and an authority which abrogates the Constitution and the entire legal system and gives recognition to that system only to the extent that it decides upon cannot be said to have repealed the laws which it has refused to recognise Learned Counsel for the respondents endeavoured to make the The point, which does not really arise in the present case, that a post-constitutional law if it contravenes a fundamental right is void ab initio like a law enacted by an incompetent legislature. No doubt clause (2) of Article 4 imposes a prohibition on legislation but such legislation, if enacted, is not void ab initio. The clause contemplates cases where inadvertently, not deliberately because no legislature would intentionally disobey a constitutional prohibition, the legislature enacts a law which collides with a funda-[*414]-mental right but the result here is precisely the same as in the case of an existing law under clause (1) of the Article—the law is void only “to the extent of such contravention” and not void ab initio like legislation which suffers from the incident of an inherent lack of power.

The conclusion that I arrive at in the present case is that when in compliance with the order of remand the High investigated the existence of the wakfs and after investigation applied Article 18 to them, it was acting judicially in a pending case. Had Article 18 itself been abrogated before the proceeding terminated in that Court, the direction in the order of remand to. apply that Article would have become infructuous and abortive and the High Court would have been bound to apply the law as it existed when it decided to issue the writs. The order of the High Court being sub judice before us on special leave to appeal having been granted, we are bound to apply the law as it exists today and since Article 18 is no longer available to impeach the notifications we cannot allow the writs to operate. The applications for writs were founded and are still founded on Article 18 and not on the ordinary law as though by the previous decision of this Court that law had been clipped of its offending provisions. The finding in our previous judgments that the law was void because it conflicted with Article 18 could have operation only as long as the reason of its voidance existed. That reason having disappeared, the law has full operation and it is conceded thus if that be so the present applications would be incompetent under it. Their foundation is a fundamental right that no longer subsists and is not available for an attack on the constitutionality of the law under which the notifications were issued. On the contrary the law in force now directs that all such applications shall abate. Even if Mr. Suhrawardy’s contention that with the coming into force of the late Constitution the provisions of the State Acquisition and Tenancy Act were clipped of their offending provisions be accepted, the notifications objected to would be valid as in that case the general provisions of the Act empowering the Government to acquire all rent-receiving interests would be applicable unless Article 18 be invoked to attack their validity. Therefore unless Article 18 be resorted to, the acquisitions would be valid even if it be held that the Act is in force but without the provisions that specifically relate to wakfs. I would therefore, accept the appeals and hold that the applications giving rise to them have all abated under clause 7 of Article 2 of the Laws (Continuance In Force) Order. In view of the novelty of the question raised, I would leave the parties to bear their own costs

Shahabudden J.—I agree with my Lord the Chief. Justice and have nothing to add.

Cornelius J.—A number of difficult questions arise in these appeals and as I have the misfortune to be, on some of these questions, of a different opinion from that expressed in the judgment of my Lord the Chief Justice, which is also the judgment of the majority, it is necessary that I should state my views in a separate judgment. [*415]

The first question which 1 propose to discuss is that of the competency of the appeal as it came before the Court. The facts are as follows :

“By the judgment in the Jibendra-Kishore case (1) eight appeals were remitted to the High Court for determining the question as to what extent the dedicatio‡s. involved in them come within the definition of religious institutions and are accordingly ptotected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be approprate in the circumstances”.

These were appeals in which attack had been made “on the validity of acquisitions of rent-receivers interests where the land was held under wakf, wakf-alal-aulad or debutter and it should be stated at once that the cases in question include no case of debutter and all of them are cases of wakf or wakf-alal-aulad. At a later stage in this judgment it will be necessary for me to state the argument accepted in the judgment in respect of the acquisition of such properties more fully. Here, in a preliminary statement of facts, it will be sufficient to say that the Court was of the view, that certain provisions of the East Bengal State Acquisition and Tenancy Act of 1950 :—

“Strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the Fundamental Right guaranteed by Article 18 of the Constitution”.

The late Constitution of 1956 was then in force, and the protection, referred to was expressed in the following terms

“Subject to law, public order and morality :—

(a) . . . . . . . ; and

(b) every religious denomination, and every sect thereof has the fight to establish, maintain and manage its religious institutions”.

In the High Court it had been held that words “subject to law” had the effect of rendering the-religious institutions in question subject to the provisions of the Act in question, and this was overruled by the Supreme Court principally on the ground that the Fundamental Right having been guaranteed by the Constitution could not be taken away by the law, and that to construe Article 18 in the, manner adopted by the High Court would be to attribute an intention to the makers of the Constitution “to empower the legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions”, and equally in the case of the non-Muslim citizens of the State. It was held that such a conclusion was impossible and that the expression “subject to law” was thtended to confer upon the legislature “the power to regulate the manner in which such institutions may be established, maintained and managed” but no power, “to make a law that hereafter no institutions of religious character shall be established, maintained or managed or that an existing religious institution

(1) P L D 1957 S C (Pak.) 9

[*416] shall be abolished”. It was observed that the “law may step in when professions break out in open practices inviting breaches of peace or when belief, whether in publicly practising a religion or running a religious institution leads to overt acts against public order”. It was in the light of these observations that the order remitting the case to the High Court was made in the terms already mentioned.

The case was heard by a Division Bench of the High Court composed of two Judges, who differed in their views. The difference arose as to the meaning and effect of Article 18 (b) i.e., whether it gave protection to a wakf-alal-aulad which is a Muslim religious trust for the benefit of the creator of the trust or his lineal descendants in the first instance, with an ultimate dedication to God, to be applied for charitable purposes. Mr. Justice Akbar agreed that the wakf-alal-aulad is a religious institution, but he thought that in order to qualify for protection under Article 18 (b), it was also necessary that such an institution should Be one in which a religious denomination bas an interest, using the expression ‘denomination’ in the sense of a “religious sect or body having a common faith and organisation, and designated by a distinctive name”. In the opinion of the learned Judge a wakf-alal-aulad being “a dedication substantially for benefit of the wakf’s family” must be treated as a dedication for the benefit of individuals, and could not be regarded as a dedication for public purposes. I note here that in his separate judgment this learned Judge particularly recorded the following remark :—

“Before dealing with these different wakfs, I would like to observe that the learned Advocates for the parties confined their arguments to the question as to whether a dedication for benefit of the wakif’s descendants and family is a religious institution within the meaning of Article 18”.

As regards other wakfs, his opinion is expressed as follows :—

“In my opinion, dedications for the maintenance of mosques and dargahs are religious institutions within the meaning of Article 18 (b) of the constitution”.

Although, he found that provisions for maintenance of mosques and dargahs and for the performance of ceremonies for the feeding of the poor and other charities were contained in the wakfs covered by six of the petitions before him, he found it impossible on the materials before him to decide whether all or any of them should get the protection of Article 18 (b) and observing that the petitioners “will be at liberty to agitate this question later if they so desire”, he confined the relief in these six cases to cancellation of the notifications issued in respect of khas land of these wakfs only, on the ground that the notifications issued were defective. In the two remaining petitions, he found that the inutwallis had already filed regular suits to avoid the acquisitions, and for this reason, in order to avoid contradictory judgments, he declined to grant the petitioners relief by way of a writ of mandamus, leaving them to agitate further questions by separate suits if they so desired.

The other learned Judge Mr. Justice Imam Hussain Chowdhury interpreted the judmcnt of the Supreme Court as holding that wakf, wakf-alal-aulad and debutter are protected under Article 18 of the Constitution. The learned Judge examined the matter in the light of earlier decisions and the provisions of the law of Islam (as had been done by Mr. Justice Akbar also) and he came to the conclusion that wakf, wakf-alal-aulad and debutter are religious-institutions, and as to the provision in Article 18 (b) regarding “religious denomination or sect” his view was as hblow “The expression ‘religious denomination’ is a general nature for a class of like individuals such as Christian, Muslim, etc. which, means every individual Christian as well as the Christian Community etc.”

He proeeded to observe :—

“In clause (a) of the Article, the right to profess, practise, propagate any religion is given to every citizen. Can it be imagined that such a right in respect of establishment, management and maintenance, of a religious institution which forms part of a practice of a religion, is denied to a citizen ?”

He pointed out that “every wakf ultimately goes to the public charity” and relied also upon the rule of construction which had been stated in the judgment of the Supreme Court, namely, that provisions in a Constitution should receive liberal interpretation in favour of the citizen specially in respect of those provisions which are designed to safeguard the freedom of conscience and worship, which in the learned Judge’s opinion was equally applicable in interpreting clause (b) of Article 18 of the Constitution. He was prepared to grant writs of mandamus in all the eight cases before the Court, irrespective of the pending civil suits.

A difference thus having arisen, the point of difference was referred as is required by clause 36 of the Letters Patent of the High Court, to a third Judge for his decision. The third Judge (Mr. Justice Ispahani) after hearing arguments, expressed the opinion that the Supreme Court “expressly or impliedly have decided that wakf, wakf-alal-aulad and debutter are religious institutions and protected under Article 18 of the Constitution from acquisition” and that the purpose of the remand order was “the determination of the extent the, dedications involved in these petitions are dedications for purposes recognised by the Muslim Law as religious and charitable”. As to the argument that Article 18 (b) has the effect of restricting protection to religious institutions appertaining to some particular religious denomination or sect, the learned Judge was of the view that;

“every relgious denomination and every sect thereof” includes also individuals and thus individuals as well as religious denominations and every sect thereof have the right to establish, maintain and manage its religious institutions”.

Accordingly,“bejng in agreement with Mr. Justice Chowdhury on both points, the learned Judge made an order to the East Pakistan Government “to withdraw or rescind the notices issued in respect of the rent-receiving interests of the petitioners”. [*418] At the conclusion of his order, there appears the following paragraph :—

“on behalf of the respondents, a prayer is made for a certificate under Article 157(1) of the Constitution. As these cases involve substantial questions of law as to the interpretation of the Constitution, the certificate prayed for is granted”.

It has been strenuously contended before the Court that the certificate thus granted by Mr. Justice Ispahani is not a certificate within the meaning of Article 157 (1) of the late Constitution, and the appeal presented under its authority is therefore incompetent. The foundation for this contention was laid upon two propositions, namely, (1) that having regard to the jurisdiction exercised in the case, Mr. Justice Ispahani was not the High Court and could not act on behalf of the High Court in relation to the issue of the certificate in question ; and (2) that the certificate could not be granted suo motu upon a mere oral representation as has been done in the present case. For the first contention, reliance is placed upon clause 36 of the Letters Patent, and it must be conceded that the provision in this clause that in a case of the relevant kind the judgment of the High Court shall be the judgment of the majority of the Judges who heard the case, including those who first heard it, has the effect contended for by the respondents to the present appeal. 1f the grant of a certificate were to be regarded as a. function belonging to the High Court, functioning as the Court which decided the case then, it would follow from clause 36 that the Judge or Judges who eventually turned the scale in favour of the ultimate decision could not be treated, as the High Court deciding the case, but the majority of all the Judges who heard the case initially and again after the reference of the points of difference would prima facie be the High Court in the relevant respect. It was not suggested however that this mode should have been followed in the case. The argu- ment was presented for the purpose of establishing that Mr. Justice Ispahani in issuing the certificate as he did could not be regarded as exercising authority properly vested in him, since his decision by, itself was not the decision of the High Court in the case. In regard to procedure, stress was laid on the rules of the High Court which required that for the purposes of a certificate under Article 157, an application should be made to a Division Bench constituted for the purpose by the Chief Justice, and that a certificate should only issue after notice to the other side. In this connection, it was pointed out that such an application is required to be accompanied by a statement of the grounds upon which it is proposed to appeal to the Supreme Court against this judgment of the High Court, and it was urged that it could have been demonstrated before the Division Bench of the High Court that on a true construction of the judgment of the Supreme Court, there was no point upon which further appeal could be Thought to lie. The argument was rested upon the fact that so far as concerns the validity of the wakfs and wakfs-alal-aulad in question, as religious institutions in the eye of the Muslim Law and the Mussalman Wakf Validating Act, 1913, the matter was concluded by a concession made on behalf of the Provincial Government that they were valid religious institutions, and an answer was thus furnished to the only question for the rusolution [*419] of which the remand order, had been made by the Supreme Court. The judgment of the Supreme Court, it was urged, should have :bnre.ad as having disposed of the question whether to earn protection under Article 18 (b), a religious institution should be shown to appertain to a religious denomination, or sect, and this should be construed from the judgment itself, and in any case the same result followed from the rule of constructive res-judicata since it was not open to the Provincial Government to take up objections before the Supreme Court piecemeal, but their whole case in answer to the attack upon their action levied by the petitioners should have been stated in full and n every possible ground once for all before the Supreme Court. Therefore, it was urged that by short-circuiting, the proper procedure as laid down in the particular respect by the rules of the Dacca High Court, a very valuable right had been denied to the present respondents. It as true that the matter had gone up subse- quently before a Division Bench of the High Curt consisting of the Chief Justice and Mr. Justice A. Sattar, which had made the following order :—

“As all the requisites have been put in, let the appeal be admitted under Order XLV, rule 8 of the. Code of Civil Procedure”.

On the same date, viz. 12th February 1958, a further proceeding was recorded under the signature of an Assistant Registrar to the effect that a prayer made on behalf of Provincial Government of East Pakistan “for a certificate for leave to appeal to the Supreme Court of Pakistan gainst the judgment of this Court . . . . . . dated the 20th December, 1957” had been heard and that “the said certificate baying been granted by an order of this Court dated the 20th December, 1957” and after stating that an Advocate for, the appellants to the Supreme Court had been heard and no one had appeared for the respondents to the Supreme Court, “the said prayer for leave to appeal be and the same is hereby admitted”; This order clearly suffers from confusion. It seems clear that the order cannot be read as granting a certificate, but merely an order admitting the appeal as a requisite formality.

The reply of Mr. Brohi for the Provincial Government to this attack is that while conceding that if the legal requirement be that a certificate should be issued by a Division Bench upon application as required by the rules in order to be valid, yet in the existing circumstances, the certificate granted by Mr. Justice Ispahani. could be treated as a certificate granted by the High Court because although Mr. Justice Ispahani’s jurisdiction was limited to the point of difference yet he did not cease to represent and act on behalf of the High Court in respect of the case referred and moreover since the point whether a certificate should or should not issue was not referred to him, therefore the requirement that the decision of the majority of the Judges viho heard the case should be the decision of the High Court was not applicable in the terms of clause 36 of the Letters Patent to the particular point. In my opinion, the answer does not adequate1y meet the objection. The certificate is required by Article 157 to be granted by the High Court and I conceive that by the [*420] expression ‘High Court’ is meant in any particular case, a Judge or Judges of the High Court functioning under the rules of the High Court and under the general control of the Chief Justice as exercised by means of special orders e.g., orders constituting Division Benches for the purpose of grant of such a certificate I feel no difficulty in coming to the conclusion that the position of Mr. Justice Ispahani in relation to the case must be placed within the terms of clause 36 of the Letters Patent, and so placed, he could not be regarded as the High Court in respect of the decision. Therefore, the whole proceeding which has resulted by the grant of the certificate by him was, in my view, ultra vires. A certificate could only have been granted within the rules of the Supreme Court and the High Court. Rule 1 of Order XII of the Rules of this Court provides as follows :—

“The provisions of Order XLV of the Code and of any rules made for the purpose by the High Court concerned so far as may be applicable, shall apply in relation to appeals prefer red to the Court under Articles 157 and 158 of the Constitution :

Provided that the Court may from time to time issue to High Courts any special directions for the purpose of presentation of appeals to the Supreme Court.”

As regards the High Court it is clear that the rules require that certificates of the kind here in question may be obtained only upon application and after notice to the other side and may only be granted by a Division Bench, presumably a Bench constituted by the Chief Justice. These requirements are not satisfied in the present case and therefore, I feel no hesitation in holding that the appeal as presented to this Court was not competent.

But the respondents have been greatly at fault in not raising this preliminary objection at the earliest stage. Arguments in the case were heard for four days at Dacca, and at the hearing in Lahore, arguments had gone on for two complete days before this point was raised for the first time on the seventh day of the hearing. Learned counsel for the respondents sought the indulgence of the Court for their failure to raise this objection at the proper stage, but it had become obvious by then that the case involved a number of intricate and important questions of law, affecting the interpretation of the earlier judgment of this D Court, and the maintainability of the appeal by reason of the alteration in the legal structure of the country resulting from the President’s proclamation of the 7th October, 1958. These questions have been argued at length and the arguments have been duly reported in the press, and consequently, it was obvious that terminating the proceedings upon a finding that the appeal was incompetent, while it would have been appropriate in limine could no longer be regarded as a proper disposal of the case. In the circumstances, the proper course lay in the exercise of the wide power vested in the Supreme Court to grant special leave to appeal under Article 160 of the Constitution, and this was accordingly done.

In the circumstances, however, it was not possible to allow time for observing all the formalities which attend the grant of special leave to appeal by this Court, and the appeal has [ï421] accordingly proceeded on the basis of such statement of grounds as were already on the record. It is a matter of crucial importance. to the case that it should be understood what that basis is On behalf of the respondents a very strong and lengthy argument was advanced to the effect that there was no substance in. the appeals whatsoever. The line of this argument has been indicated already. When, upon the matter being taken up on remand by the High Court, it was conceded on behalf of the Provincial Government that the wakfs in question were, valid, there was nothing left thereafter for the High Court to do, but to act as directed by the Supreme Court, namely, to give relief as prayed against the statute. The result, should have been no differ‡t from what it would have been, had that admission been made before the Supreme Court at the first hearing. The argument proceeds upon the assumption that the judgment of the Supreme Court lays down the law to the effect that, provided, a wakf or wakf-alal-aulad is a valid wakf in the eye of law, it is protected from the expropriatory provisions in the Acquisition Act of 1950 by virtue of Article 18 (b) of, the Constitution. Mr. Brohi for the Provincial Government has strongly, maintained that the judgment of the Supreme Court does nothing of the kind, but merely settles two questions, namely whether mutawallis of wakfs can come within the definition of rent-receivers for the purposes of the Act, and whether the law of the Acquisition Act of 1950 has the effect of over-riding the, protection given by Article 18(b), by virtue of the words “subject to law” appearing at the commencement of that Article. Mr. Brohi went sÙ far as to suggest that the Supreme Curt had not answered and in fact had not even considered in any significant sense; what was the meaning of the expression “religious institutions” in Article 18 and how far clause (b) of that Article goes for the protection of such institutions.

These are matters which will require examination presently, but here it is important to examine the terms in which the grounds of attack upon the judgment of the High Court delivered after the remand order, have been expressed. I take, as an example, Civil Appeal No. 18-D of 1958 to which the respondent is Md. Mehdi Ah Khan Panai. The petition of appeal to this Court contains in five paragraphs a recital of the previous history of the litigation, ending with a brief statement of the disposal of the petition- before the High Court after the remand order, and after stating that Mr. Justice Ispahani had granted a certificate under Article 157 of the Constitution, concludes with the following statement :—

The present appeal arises out of the grant of the said certificate being Supreme Court Appeal No. 1 of 1958 (writ) of the High Cdurt”.

That unilluminating and the obscurity is by no means relieved by the statement made in the memo of valuation that “the question involved in the above appeal is whether wakf property can be acquired under the East Bengal State Acquisition Act, 1950”. The difficulty created through the failure to take proper proceedings for the grant of the certificate in the High [*422] Court, as required by the rules of that Court becomes immediately apparent. Some clarification appears from the concise statemeni furnished much later on behalf of the appellant-Government, in which the following points were set out as the reasons upon which the petition for a writ should be dismissed :—

(1) that although the Muslim law of wakf may be an institution, yet it does not follow that property dedicated under that law also becomes an institution entitled to protection under Article 18 (b)

(2) that by virtue of the Laws (Continuance In Force) Order of the 10th October 1958, which brought into effect a new legal structure following upon the abrogation by the President of the late Constitution by his Proclamation of the 7th October, 1958, the proceedings being proceedings to obtain a writ for enforcement of a Fundamental Right should be deemed to have abated;

(3) that the respondent had no locus siandi under Article 18 (b) to challenge the acquisition

(4) that the protection of Article 18 (b) applies only in favour of a religious denomination or sect;

(5) that a wakf-alal-aulad has no public character and cannot be called a religious institution within the meaning of Article 18 (b)

(6) that the High Court has misinterpreted the judgment of the Supreme Court as a declaration of law that “wakf, wakf-alal-aulad and debutter are religious institutions and protected under Article 18 (b) of the Constitution from acquisition,” and

(7) that the High Court has given no independent finding that any of the wakfs in question is a religious institution.

The point of abatement could not have been taken in the grounds of appeal had they been filed in due time for the simple reason that the circumstances which gave rise to the plea did not come into existence until long after limitation for the presentation of an appeal had expired. Therefore, for the present, the ground of abatement may properly be omitted from consideration. Taking then the first ground, it seems to me that to urge that the property which is the subject-matter of a wakf is not a religious institution betrays failure of understanding of the expression “religious institution.” Such an institution, in relevant respects, doe’s not mean the creator of the trust, or the beneficiaries, or the operator of the trust, or the property which is the subject-matter pf the trust, or the gaining of income thereout, or the distribution of that income, or the principles governing such distribution, but al these persons and things and actions put together constitute th wakf as an organisation owing its existence to religious tenets which find their expression through this controlled and continuous activity. It is idle to put forward the argument that the land itself is not a religious institution, as an answer to the case put forward by the respondents. It is idle also to suggest that the mutawallis of the wakf in question have no locus standi to challenge the acquisition of the wakf properties they administer, in view of [*423] this judgment delivered upon this point in this very case by this Court after due consdieration. The Court had held that a mutawalli, athough he does-not hold the property for his own benefit but for the benefit of a religious institution must be deemed to be a person holding the property in trust within the meaning of clause (20) of section 2 of the Act of 1950.

There is indeed one aspect in which it might be urged that such pleas could be presented as validrounds of appeal before this Court, and that is where the appeal itself is being presented For the purpose of obtaining a review of its earlier judgment by the supreme Court. I refer in this connection to the case of Akbar Ali v. Iftikhar Ali (1) where it was held by the Federal Court that following the practice of the Judicial Committee, the Federal Court was at liberty to examine the reasons upon which an earlier decision by itself had been arrived at and should it find itself forced to dissent from those reasons to decide the case upon its own view of the law. The power of review has been expressly given to the Supreme Court, which replaced the Federal Court under the Constitution of 1956 by Article 161. I do not conceive that the exercise of this power is necessarily limited in respect of form, so that the proceeding before the Court must be expressly in the form of an application fr review of an earlier judgment in order to attract the exercise of the power. The- question being one of reconsideration of the reasons upon which an earlier decision of the Court proceeded, I entertain no doubt that the Court may be moved to undertake such reconsideration in the form of an appeal from a judgment, and I do not see that the principle is in any way prejudiced by the fact that the judgment appealed forms has been delivered in consequence of, and may even be baÈd expressly upon the conclusions reached by the Court in the earlier case. Upon this view, the plea of res-judicata, direct or constructive, raised by Mr. Suhrawardy, in bar of fresh contentions being put forward in respect of the matter earlier decided by this Court, can possess no force.

But it is necessary that the questions raided should be questions of substance such as would justify the grant of a review in the ordinary case. A ground of appeal which merely traverses a finding of this Court for the purpose of obtaining a review ofsuch finding without any basis of reason whatsoever cannot be regarded as a competent or proper ground. In my opinion the two grounds so far considered fall within the category of insubtantial and futile attacks upon the earlier findings of this Court. I may put it differently in this way. It is true that in its earlier judgment this Court did not consider the question whether the properties dedicated under a particular wakf were themselves religious institutions, but the proposition is so patently absurd and misconceived as not to merit any consideration at any stage whatsoever. The decision that mutwallis are persons holding estates in trust within the meaning of the Act was a considered decision based upon due consideration of the. arguments pro and con, and merely to traverse it cannot constitute sufficient ground for granting a review.

(1) P L D 1956 F C 50

[*424] The fourth ground taken is that Article 18 (b). ekpressiy confines the protection which it affords to religious diiominatiÙns and sects in relation to the religious institutions which they operate. This point was raised for the first time in the High Court where it found favour with only one of the three learned Judges who heard the case. It is obviously an aspect of, and is contained within the larger question which the other two Judges held to have been decided by this Court, viz., that valid wakfs and wakfs-alal-aulad are protected against interference by Article 18 (b). The question is one of construction, and it must be admitted that the argument upon which it rests is a tenable one.. Consequently, I would be prepared to allow this question as being, prima facie, one in respect of which a review of the earlier judgment may reasonably be sought, and it is immaterial whether it is sought in the very case, as now, or in a later case. The next point taken, namely that a wakf-alal-aulad has no public character and consequently it is not qualified as a religious institution, was also not considered in the earlier judgment of this Court, but in the light of the provisions of the Mussalman Wakf Validating Act, 1913, which gave effect in this respect to the principle of Muhammadan Law relevant to the subject, it seems to me to be perfectly clear that to require that a wakf in order to qualify as a “religious institution” should also have a public character is not possible. A wakf-alal-aulad for the maintenance and support of the wakf and his family and descendants or even for the payment of his debts out of the income. of the dedicated property is according to the said law to be regarded as a valid wakf, provided that the ultimate benefit goes to purposes recognised by the Muslim Lav as religious, pious or charitable purposes of a permanent character. Here again, the effort is to press a qualification upon the decision in favour of wakfs-alal-aulad by this Court, and is clearly a prayer for review. In view of the patent unsoundness of the plea, it must be forthwith rejected from consideration.

The sixth ground viz., that the High Court misinterpreted the judgment of the Supreme Court is one which requires more careful examination. It is true that two of the learned Judges of the High Court have supported their conclusion regarding the interpretation of Article 18 (b) by reference to what had been held by this Court, but, as has been pointed out already, on the ground of difference, namely, the confinement of protection to religious denominations or sects, each of the three learned Judges has expressed his own independent opinion and this was the point which was not expressly decided in the Supreme Court judgment. Therefore, the subject-matter of this ground is included within the fourth ground already discussed above. The last ground, namely. that the High Court had given not independent finding that the wakfs in these cases are religious, institutions is plainly insubstantial for each of the three learned Judges in the case has held thay all the wakfs involved are in fact religious institutions.

As a result of this analysis I come to the conclusion that onl one of the seven grounds urged in the concise statement can be treated as a valid ground upon which this Court could have been asked to review its former judgment. None of the grounds appear in substance to have any merit as a basis upon which correction of the judgment [*425] of the High Court could reasonably be sought otherwise than in accordance. with a revised opinion given by this Court upon a point which was before it for decision in the earlier appeal. The conclusion cannot be avoided that the appeal in Muhammad Ali Khan Paunis’s case, as in all toe other cases, is not ran appeal of the ordinary kind in which the entire proceedings from the institution of the petition to the present day can be said to be before the Court. It is an appeal of a very high and special kind, peculiar to this Court, seeking review of an earlier decision by this Court, and it Is evident that uless the review is granted, the entire proceedings do not open out before the Court for re-hearing.

Now, the earlier judgment of this . Court tould not need to be reviÍ’ed in the true sense unless it had the effect either of recording a finding upon a point of fact, or of giving a considered declar‡ti‡n of law. A question around which a great deal of the argument in the case has centred is whether the judgment in the Jibendrd Kishore case includes anything in the nature of a declaration of law by this Court; Clearly, it would lead to great confusion and consequent detriment to the administration of the law and the dispensation of justice if any doubt were allowed to remain on such a point. I may here be allowed to express my keen regret that I should be holding, on so fundamental a matter, a divergent view from that expressed by my Lord the Chief Justice and some of my learned brethren. Yet, as a signatory to that judgment, which was delivered by my Lord the Chief Justice, it is both proper and for the disposal of the present case entirely necessary that I should state my view as to the nature, in the relevant respect, of the instrument which I endorsed. I believed that by that judgment the Court expounded the law on the assumption that the properties in question were either wakfs or wakfs-alal-aulad.

A part of the argument in the judgment on the subject of the acquisition of wakfs and wakfs-alal-aulad has already been reproduced earlier in this judgment. The judgment stated that the attack upon the acquisition of these properties was based upon the principle “according to which ownership of wakf property according to Muslim Law vests in the Almighty”. The point was then settled that mutiwalli of such wakf is a proprietor within the meaning. of section 2, clause (20) of the Act of 1950. The operation of Article 18 of the Constitution in relation to the acquisitions. was then considered, and it was noticed that upon the making of a notification. under section 3 of the said Act, all the interests in the lands involved “whether they vest in the Almighty or a deity or for the purposes of the Act in the mutwalli or the shebait” are transferred absolutely to the Provincial Government, the mutwalli or shebait becoming entitled to compensation as provided by the Act AjÙther provision noticed was that as to such income from the estate as was actually applied by the mutwalli to charitable or religious purposes without reservation of pecuniary benefit for any individual, compensation is to be paid in the form of perpetual annuity, equal to such amount. The conclusion was then drawn that as a consequence, the pecuniary benefit reserved for individuals is completely wiped out and secondly, [*426]

“a mere breach of trust by the mutwalli or the shebait in not applying as directed by the dedicatorthe income of the property to religious or charitable purposes causes the income so mis-appropriated to cease to be available for such-purposes”.

Reference was then made to the provisions relating to khas possesion, where also it was provided that only such lands are exempted and left in the possession of the mutwalli “the income from which is exclusively applied to religous or charitable purposes without resevation of pecuniary benefity for anyinddividual”. The last provision mentioned was that in section 20 which further restricts the exemption of khas lands for expropriation.

The discussion throughout in this passage is as to the expropriation of lands which are the subject of dedication in the form of wakfs or wakfs-alal-aulad, and the conclusions reached are clearly to the effect that the provisions of the Act operate to minimise the corpus of the trust, and as to part of it to efface the corpus altogether. The conclusion drawn from these ascertained consequences is expressed in the following terms —

“There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute and infringement of the fundamental right guaranteed by Article 18 of the Constitution ?”

The argument that such religious institutions were rendered “subject to law” by the same Article, and therefore fell within the mischief of the Act of 1950 was then dealt with and refuted in the manner already indicated earlier in this judgment. Special mention was made of the anxiety felt by “the makers of the Constitution”, upon which the ink was as yet hardly dry when the judgment was pronounced, an anxiety to “regulate the lives of the Muslims of Pakistan In accordance with the Holy Quran and Sunnah”. The succeeding passage may with advantage be reproduced in full, as it has a bearing upon the question of construction of the following words in Article 18, viz. :—

“every religious denomination and every sect thereof has the right to establish, maintain, and manage its religious institutions”.

The passage restates (I say so with great respect) in the clearest possible manner one of the salient principles applicable to the interpretation of constitutional instruments. It reads as under :—

“Consistently with the language used, constitutional instruments should receive a broader and more liberal construction than statutes, for the power dealt with in the former easels original and unlimited and in the latter case limited, and constitutional rights should not be permitted to be nullified or evaded by astute verbal criticism, without regard ,to the fundamental aim and object of the instrument and the principles on which it is based, If the language is not explicit, or admits of doubt, it should be presumed that the provision was intended to be in accordance with the acknowledged principles of justice and liberty. Accordingly, in doubtful cases that particular construction should be preferred which does not violate those principles”.

[*427] The conclusion finally reached was stated in the following words :—

“The words ‘the right to establish’, subject to law, religious institutions, cannot and do not mean that such institutions may be abolished altogether by the law”.

In so far as I was associated with the determination of that case, t w‡s perfectly clear in my mind that I was holding that wakfs and wakfs-alal-aulad were religious institutions, and consequently were entitled to be protected against an action by the executive, whether under statute or otherwise, which would have the effect of interference with the basic existence of these institutions, according: to the law under which they were founded and administered. I was fully in agreement with the principle laid down that the law could interfere with the operation of these institutions, only in a regulatory sense, or to restrain anything which might constitute a breach of public order or be dangerous to public morals: I entertained no doubt that the provisions of the Act of 1950 in so far as they had the effect of expropriating the corpus of the trust of the wakfs in question, either in whole orin part, constituted an interference with the substance of the wakfc and indeed with the wakfs themselves.

Throughout, of course, the assumption was made that the wakfs in question were valid in the eye of the law, namely the Act of, 1913, and the principles of Muhammadan Law applicable to each particular wakf as provided by the said Act, but in any case applicable of their own force. It falJs to be observed that although a wakf ordinarily originates in the form of a personal foundation by an individual, yet wakfs as a religious institution are governed by different laws according to the sect to which the founder and his family after him belong. Thus the Sunni law of wakfs differs in a number of particulars from the Shia law of wakfs and from that I think it is reasonable to draw the conclusion that no wakf is conceivable which is not, governed by specific religious law, viz., the law of the denomination or sect to which its founder belonged. In other words it is impossible to think of a wakf otherwise than as having existence within the field of religious activity of the sect or denomination of its founder. To emphasise this point I may mention that many wakf deeds contain provisions similar to the following clause which I have extracted from the judgment of the Privy Council in the case of Syed Ah Zainin v. Syed Akbar Ali Khan (1) to which I shall have again to refer a little later in another connection :—

“Should any mutwalli, besides myself, give up the Isna-Ashari sect of the Shia school or prove dishonest, the committee shall have power to remove him and to select another mutwalli, accord ing to the terms of this wakfnama.

The wakf in that case apparently belonged to the Isna-Ashari sect of the Shia school, and the passage sufficiently indicates that in a similar way all wakfs within the entire range of Muslim Law must necessarily appertain to the particular denomination or sect of their founders.

(1) 641 A 158

[*428] This conclusion has a bearing upon the question which I have earlier in this judgment, found to be the only question upon which prima facie, a prayer for review of the declaration of law in the Jibendra Kishore case could reasonably be founded. The opinion I have formed, and which I propose to state a litt1e later is that that prayer should be rejected on a ground aliunde. But here I may be permitted the comment that if the major canon, of construction of constitutional instruments which has been quoted above, were to be applied it would not be easy to escape the conclusion that the protection given by Articles 18 (b) extends to all religious institutions, and that the reference to denominations and sects is made in order to apply a rule of universality, as if the words had been:—

“the right to establish, maintain and manage religious institutions is guaranteed, whatever be the religious denomination or sect to which they may appertain”.

I am entirely in agreement with the sentiment expressed by my Lord the Chief Justice that those who in drafting the Constitution of 1956 were, as appears clearly from expression in a number of different parts of the Constitution commencing with its Preamble, so greatly concerned to secure that

“the Muslims of Pakistan should be enabled individually and collectively to order their lives in accordance with the Holy Quran and Sunnah”

and further to ensure that

“adequate provision should be made for the minorities to freely profess and practise their religion”

cannot be assumed to have imposed by Article 18, any restrictions upon the freedom conferred in respect of the establishment, maintenance and management of religious institutions, which are indeed in themselves an expression of the religious faith of their founders. As the well known writer Ameer Ali has stated :—

“the doctrine of wakf is (thus) interwoven with entire religious life and social economy of the Mussalmans”.

In the course of the present argument, the comment was heard that the Legislature which passed the Act of 1950 contained a large majority of Muslims, whose views as to the sanctity of wakfs must be supposed to find expression in the Act. That may be so, or it may be that in imitating a law passed elsewhere provisions have been adopted which clearly have the effect of expropriating property which is accepted by all Muslims as vesting in the Almighty. When the Constitution itself opens with the words.

“Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.”

it need cause no embarrassment to the interpreter of such a provision as Article 18 (b) in the context of the present case, if he proceeds upon the principles that under the Constitution

(a) the expropriation of property, vesting in the Almighty, by any authority, legislative or exeÁutive, is inconsistent with [*429] the paramount duty of submission to the Divine Will, involved in the úeptance of theexercise of authority as a sacred trust, within the limits prescribed by the Almighty; and

(b) that high as may be the authority of the law of eminent domain, it lacks power to subject that which vests directly in the Almighty to secular uses.

These necessities, and the danger that the elected Legislature may not possess a sufficient appreciation of them furnish adequate reason for the existence of such a binding provision, applicable alike to legislative as well as executive authorities, as that of Article 18 (b).

Having stated my clear, belief that in the Jibendra Kishore case, What the Court intended to lay down was that wakfs and wakfs-alal-aulad, if valid under the relevant law, fall within the protection guaranteed by Article 18 (b), I now proceed to examine the purpose underlying the final direction by which the petitions in question were remitted to the High Court, for determining the question as :—

“to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances”.

The evident purpose and object which appears from this direction is to provide satisfaction that the protection claimed in the cases in question was in respect of dedications which in themselves satisfied the condition of being valid wakfs and wakfs-alal-aulad. As it happened, the resolution of this question was rendered supremely easy by an admission of the Provincial Government that all the wakfs in question were valid. It will be sufficient to refer to the judgment of Mr. Justice Akbar, where the admission is stated in the following words :—

“Mr. Brohi has also not challenged the validity of the wakfs under consideration”.

But in its essence the question whether a dedication by a deed styled as a deed of wakf is or is not a valid wakf is often one of very great complexity. A striking instance is afforded by the case before the Privy Council to which I have referred above, viz. Syed Ali Zamin v. Syed Akbar Ali Khan. That was a case from Patna and as the report shows :

“the main question for determination in this appeal was whether the wakf deed, and a supplementary deed, dated February 15, 1919, were valid and operative documents according to Shia Law, by which the parties to the suit are governed”.

The judgment of Sir George Rankin covers some 14 printed pages in the report, and deals inter alia with the following question :—

(1) that the wakf was illusory never having been intended to operate, and the intention of the settler was to use the income of the properties as he pleased and to continue throughout his life to spend the income as he had done in the past [*430]

(2) that the wakf was executed under undue influence

(3) that the wakf was a mere cloak to secure benefits for certain particular relations, in preference to others ;

(4) that actual delivery of possession of the dedicated property to the mutwalli had not been established, the question being complicated by the circumstance that the first mutwalli was the settler himself

(5) that the power given to the mutwalli under the deed of wakf were altogether too wide and were contrary to Shia Law;

(6) that the wakif continued to employ the income of the dedicated property “much as he might have done before the date of the deed” ; and

(7) That the wakif had committed breaches of trust.

It was only after lengthy examinatron of all these contentions in relation to the evidence on the record that the Judicial Committee was enabled finally to come to the conclusion expressed in the following terms :—

“In the circumstances the wakfnama passes the tests (1) that the settler retained no interest to himself upon a true construction of the deed and (2) that he had before his death transferred the possession from himself as malik to himself and Ali Zamin as mutwallis, and their Lordships think that the wakf is valid at Shia Law”.

It was with the object of the application of similar tests to the wakfs involved in the present cases that the direction remitting these cases to the High Court was made, and it was by no means anticipated that the Provincial Government would obviate all necessity for such tests by simply admitting the validity of all the wakfs. Something was made in the arguments before us of the fact that by expression, the High Court was left with discretion in the matter of granting relief. The relief sought, as has been mentioned, was by writ of mandamus, and as is well known, the writ of mandamus is a writ of discretion. Therefore, it cannot be supposed that by its order this Court conferred any discretior upon the High Court which the High Court itself did not possess and it was always assumed that the discretion would be judiciall exercised with the well-known principles applicable to the relief in question. One matter which was particularly borne in mind was that in one or more of the cases the contest raised in respec of the validity of the wakf might be of such a nature as could only adequately be resolved in a proper suit, in which case the High Court might very properly decline to grant a writ. But it was never intended that if the facts were plain, i.e. if it was made clear to the High Court that the wakfs or any wakf involved were or was valid in the eye of law, and there was no effective bar to the issue of a writ that the High Court should still refrain without reason whatsoever from granting the relief sought. For it was clearly declared by this Court with reference to the relevant provisions in the Act of 1950 that these provision were hit by Article 18 (b) of the Constitution, provided that the property sought to be expropriated was property appertaining to valid wakf or wakf-alal-aulad. [*431]

Reverting now to the question whether there is scope for review of the judgment in the Jibendra Kishore case, and whether, if so, a review should in the circumstances of the case be granted, although I have already indicated that my inclination is in favour of holding that the ground advanced, for review is insubstantial, yet I would prefer to found My opinion that no review should be granted on the basis that no useful object is to be gained by now examining the exact scope of Article 18 (b) in relation to wakfs and wakfs-alal-aulad. The unanimous opinion of the Judges who heard the Dosso case (1) was that as a consequenc of the promulgation of the Laws (Continuance in Force) Order of the 10th October 1958, the binding effect in respect of executive action as well as legislation, of the Fundamental Rights enumerated in Part Il of the Constitution of 1956 had been withdrawn. This effect was derived with absolute clarity from the provision in the first subsection of Article 2 of that Order that Pakistan was to be governed “as nearly as may be in accordance with the late, Constitution”, notwithstanding that. Constitution had been abrogated, but this would be subject to “any Order of the President or Regulation made by the Chief Administrator of Martial Law”. Clearly, therefore such a provision as contained in Article 4 of the late Constitution, namely, that. any law, which was inconsistent with a Fundamental Right guaranteed in Part Il should to the extent of the inconsistency be void, could no longer be said to possess any force. A great deal of argument has been heard upon the, question what was meant by the expression “shall to the extent of such inconsistency be void”. On behalf of the respondents, it was claimed that once an inconsistency had been duly ascertained by competent authority; e.g. the Supreme Court, the law in question should be treated as if it had ceased to exist5 froxn-the date upon which the Constitution came into force viz. the 23rd March 1956. The effect was as of a repeal taking effect on the 23rd March 1956, whatever might be the date upon which the finding of inconsistency was given provided that the Constitution was still in force. Mr. Suhrawardy for the respondents. went further when he seemed to argue that no ascertainment of inconsistency by judicial process was necessary to produce such a result, for that of its own force and by the very fact of its existence the Constitution had the effect of “breaking down” any law, to the extent of provisions contained in it which were inconsistent with the Fundamental Rights. The argument in reply by Mr. Brohi was that Article 4 of the late Constitution embodied a rule of pro tanto repeal by repugnancy, and that the repeal should not take effect unless it was supported by a finding of a competent Court as to the extent of the repugnancy. But such a finding by any Court how-high-so-ever could not havean effect equivalent to that of excising the offending provisions from the impugned Act. These provisions would remain in the Act as “law in force” although they might not be “law in operation”. 1f it should happen that the statute against which the repugnancy was ascertained should itself expire, when in the submission of Mr. Brohi, the repeal pro tanto came to an end, and the provisions which had previously been

(1) P L D 1958 S C (Pak.) 533

[*432] ascertained to be inconsistent with the major law would regain their full effect and become again “law in operation”. Upon this basis, Mr. Brohi placed the argument that, assuming that the Supreme Court in the Jibendra Kishore case had held that the expropriation of wakfs and wakfs-alal-aulad under the provisions of the Act of 1950 was inconsistent with the major provisions of Article 18(b) of the then Constitution, and consequently void by reason of such inconsistency, in the absence of any action by, the Legislature to excise those provisions from the Act of 1950, those provisions remained “law in force” although not “law in operation”. The reason why they were not “law in operation” was not that the Legislature had made a declaration to that effect for there had been no amending Act, but that those provisions were not enforceable by the executive authorities, because following the declaration of law by the Supreme Court which is binding on all cJurts in Pakistan, it would be the duty of any Court which was approached in proper form to avoid such executive action, to give relief as prayed. But the ascertainment of the inconsistency and the declaration that in consequence of such inconsistency certain provisions in the Act of 1950 were void was dependent wholly upon the existence of the firm rule, laid down as a permanent norm, in Articles 4 and 18 of the late Constitution, and the moment that norm lost its compulsive aspect, the declaration of law by the Supreme Court, affecting the relevant provisions in the Act of 1950 was Itself rendered of no effect, with the consequence that the infirmity which had been laid oyer those provisions by reason of the judgment was immediately lifted, and the executive became once again enabled to act in accordance with those provisions free of the peril of interference by the Courts.

A good deal of authority was cited by learned counsel on both sides of this proposition. I do not propose to examine these views, as I am clear in my mind that by the use of the expression “to the extent of such inconsistency” the makers of the Constitution of 1956 laid down by Article 4 a rule of repeal by repugnancy pro tanto, and not a rule of alteration of the law. I conceive of the matter in the following way. The expression as used in the aforesaid Article 4 seems to me correctly definable as the formal expression in words of the will of a competent Legislature duly enacted as required by the law applicable. No power in the State except the said Legislature, and any superior Legislature expressly empowered, can alter the form of words thus enacted into law. A Legislature may declare its will in this manner, and may at the same time declare that, the law thus made should not come into operation until the happening of a certain contingency. The law in question would then not be in operation until the specified event occurs, but it would not be for that reason any the less law in force. I would construe the word “force” in this context as denoting that degree of power which is derived by the formal expression of the will of a competent Legislature duly enacted into law, irrespective of the further and consequential aspect of its actual operation. On this subject, it will be sufficient for me to refer to such provisions as those contained in Article 224 of the late Constitution, and in subsection (2) of Article 4 of the Laws (Continuance in Force) Order, 1958. Each of these Articles [*433] in a high constitutional instrument declares that it uses the expression “law in force” to mean “any law having effect as law whether or not the law has been brought into operation”. It is true that the suggestion conveyed by the words “brought into operation” iihat of a separate and subsequent expression of the will of the legis1ature or of some statutory authority empowered by the Legisiature, having the effect of putting.the law into operation. But in my opinion, the stress is not so much upon the aspect of bringing into operation as upon the operation itself, and therefore it may be safely held that where a law having both force and iperation is robbed of its operation by virtue of a judicial finding that its provisions are inconsistent with those in a major law, such law is as much a law in force, as another law duly enacted which awaits a further act of a Legislature or competent authority for bringing it into operation.

In a judgment delivered in the Federal Court in the case of Sobho Gyanchandani (1), I made the following observations with reference to the net work of laws on the Statute Book of a country which Irnay be permitted to repeat here as having relevancy to the present discussion :—

“It is axiomatic that these laws interact on each other and the provisions of any one of these laws in some respects are operative in addition to parallel provisions in other laws and in some respects in derogation of such provisions. The complete removal of a particular law from the statute book creates an effect which goes beyond the mere termination of the particular provision of such law. There is also an effect upon other laws as well, whose own provisions thereby are either restored to full force or deprived of supplementary force as a result of the disappearance of the repealed law”.

That was said in relation to other facts, but is relevant to a state of affairs in which the provisions of a statute are deprived of operation by being ascertained to be repugnant to other provisions in a major statute, and where subsequently the major statute is itself repealed, whereupon the impugned provisions of the other statute are “restored to full force”. It is, of course, only when the question arises for decision that the degree of inconsistency can be ascertained with the necessary effect, i.e., so as to deprive the repugnant provision of operation as law. The ascertainment of the inconsistency is a function df the Courts. This is Indeed a duty, as expressed by the Judicial Committee in the well-known case of Burah (2) in the following words :—

“The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted”.

That duty was in my opinion, performed by the Supreme Court in the case of Jibendra Kishore, when the law was declared to the effect that wakfs and wakfs-alal-aulad, provided they were.) valid in.’the eye of the relevant law, were exempt from the expro-

(1) 1952 F C R 14 = P L D 1952 F C 29

(2) 51 I A 178

[*434]-priatory provisions of the Act of 195OE ndcot4vqttlr;tHo4 provisions became void to the extent that if power was sought to be exercised in the terms of those provisions, all the Courts in Pakistan would be in duty bound to avoid the action as illegal, being based upon void provision of law. In that view of the matter, it seems to me to be perfectly clear that when it was conceded before the High Court after the remand that the wakfs and wakfs-alal-aulad in question were valid, it became the duty of the High Court to hold that the expropriatory notices or notifications issued by the Provincial Government under the authority of the provisions in question, were devoid of legal force. The High Court did indeed, by the majority of the Judges, act in that way, and made a direction to the Government to withdraw or rescind the notices or notifications in question. Against that action of the High Court, the Provincial Government has appealed, and it seems to me to be not open to question that the appeal would be entirely incompetent, assuming that the law which the High Court purported to enforce had been declared by the Supreme Court in the Jibendra Kishore case, except in the very special sense of an appeal seeking a review of that decision. Upon a proper analysis of the grounds of appeal entered before this Court it seems undeniable that what is sought is initially a review of the judgment in the Jibendra Kishore case, in the form of an appeal.

Mr. Brohi’s further argument was that the impugned provisions of the Act of 1950 assuming that they were hit by the decision of the Supreme Court in the Jibendra Kishore case survived the crucial date, namely, the 7th October 1958 as law in force, whereas the Constitution did not, as was made clear by sub-section (1) of Article 4 of the said Order. Therefore, it was urged that as from the 7th October 1958, the Act of 1950 once again regained full force in all its expressed provisions according to their tenor being no longer subject to avoidance or repeal by repugnancy to any of the Fundamental Rights in the late Constitution. That is an argument which I accept, as will have been apparent from what I have said above, but I do not see that it possesses the necessary degree of force to compel a decision favourable to the Provincial Government. For what subsection (1) of the aforesaid Article 4 of the Order of the 10th October 1958 provides is that all laws in force immediately before the Proclamation shall continue in force after that date, and this saves the laws themselves according to their tenor. But it does not have the effect of validating acts performed under those laws, on the basis of provisions which at the time of performance of those acts were rendered void by repugnancy. In other words the notifications issued by the Provincial Government under the authority of the Act of 1950 for the acquisition of the estates here in question, having been issued under a void law were themselves void, and although that law regained operation in that respect upon the making of the Proclamation, it is impossible to derive from the terms of the Order of the 10th October 1958 or any other legal instrument a principle in support of the proposition that the notifications also regained validity. Therefore, despite the fact of the abrogation of the late Constitution, and the promulgation of the Order of the 10th October 1958, it seemnts to me [*435] that when faced with the question whether the order made by the High Court, in the present case should be set aside, this Court has no alternative but to declare that in the circumstances in which that order was made it was in perfect accordance with the declared law of the country as appearing from this Court’s judgment in the Jibendra Kishore case.

It is only in the aspect of review of that judgment that this Court could at all act in the appeal of the Projincia1 Government and it is therefore necessary for me to consider whether there are circumstances justifying the grant of a review: On the merits the prayer has, in my opinion, little merit, but it is not necessary to go into its merits, since it must be rejected on another and less powerful ground. That ground is that today, some nine months after the termination of the 1egl structure as it existed Sunder the Constitution of 1956, no advantage is to be gained by entering into nice questions of the exact effect whether restrictive or ameliorative or otherwise of particular words contained in the formulation of Fundamental Rights in that Constitution. The question can at best have an academic interest relating as it does to a defunct system of laws and legislation, and I say so in consciousness of the fact that, upon the view of the law which I have taken, it is open to the Provincial Government, acting under powers derived from the Act of 1950, read with the relevant provisions in the General Clauses Act, 1897, to withdraw the notices or notifications that have been previously issued in respect of these wakfs and all other property which is the subject of religious dedication, and to issue fresh notifications in purported exercise of powers derived from the Act of 1950 of which the relevant provisions must now be treated as being in full force and operation. Therefore, no practical advantage is derived and no useful purpose can possibly be served by today taking up the ques- tion whether in declaring that wakfs and wakfs-alal-aulal, if valid under the law applicable to them, were protected from expropriation under the Act of 1950, this Court did not extend the protection beyond that which was intended by the words of the late Constitution.

Accordingly, I would unhesitatingly, dismiss each of these appeals,upon the ground that no review of the earlier judgment of this Court should in the circumstances be granted. But it is urged with great force by Mr. Brohi that once the appeals are entertained by this Court, the necessary consequence is that, applying the principle of the Dosso case. it must be held that these appeals abate, and all proceedings which have led to the pendency of these appeals before this Court must forthwith be quashed. It is a strange consequence for which to contend after having obtained from the Court the, indulgence of the grant of special leave in relation to appeals, which in my opinion, were incompetently presented before this Court. But upon the view which E have taken, there are at least two’good reasons why the rule of abatement and nullification of proceedings laid down in the judgment of the majority in the case of Dosso is not applicable to the present appeals. The first is that which E have just discussed at length, namely, that the appeals are not appeals of the rdinary kind which may be regard- ed’ as a rtharing of the entire case, or as having the effect of [*436] laying open for examination before the Court the ‘e»itirroceed- Ings from the institution of the petitions, onwards. They are in my judgment clearly appeals for review of the judgment of this Court, earlier delivered in the same matters, and have no hesita L tion in finding that in the circumstances, review should not be granted. Unless review were granted, the question of a rehearing of the case or re-examination of the proceedings as a whole, with a view to determining whether or not a writ should issue, would not arise. The second reason is, that as I have found above, the order under appeal is in fact an order for a writ to avoid executive action purported to be taken under law which this Court had declared was not valid for the purpose. It is not in my opinion at this stage necessary or material, to discover or examine why the statute had been avoided. It happens that it was avoided for contravention of a Fundamental Right, but it may have been avoided for one of several other equally good reasons, and what is significant at the present time s not why it was avoided, but that it was avoided. The avoidance took effect from the date of enactment of the late Constitution, viz., the 23rd March 1956, a date prior to the executive action against which the writs of mandamus were sought and consequently I feel not the slightest hesitation in holding that the writs issued by the High Court were not writs issued in direct assertion of a Fundamental Right, but were ordinary writs to avoid illegal and unauthorised action by the Provincial Government.

I am conscious that it is possible to criticise the view I have taken as savouring of technicality. I propose to answer that the rule laid down in the Dosso case is equally of a technical character arid as it operates to deprive subjects of a right to protect their interests by certain well-recognised modes in law, I conceive that to defeat such a rule by the aid even of purely technical submissions involves no contravention of law. But indeed, I have been at pains, in my examination of this case, to proceed so far as I can upon matters of substance in ascertaining firstly what, is the true nature of the appeals before this Court and secondly, what is the true nature of the order made by the High Court. Consequently, I would reject the criticism on this ground as well, namely, that the grounds upon which the present cases are distinguishable from and therefore immune to, the bar of relief by writ raised in the Dosso case, are not merely technical grounds, but each has a reality of its own in relation to the intricate subject-matter of the present cases.

Since liberty was given to counsel for the respondents in the course of the arguments, to challenge if they could, the decision of this Court in. the Dosso case, I conceive that there is no impropriety in my stating in this judgment, that after hearing the, arguments of counsel, I am still of, the view which I expressed in my dissenting judgment in that case, viz. that upon examination of the law and the circumstances, I was left in doubt whether the relevant provisions in the Laws (Continuance in Force) Order, 1958 could he construed so as to extinguish all pending proceedings, of which the object was direct enforcement of a Fundamental Right. The subject was raised before this Court at a time ten the situation created by the abrogation of the late Constitution [*437] could not yet said to have taken shape. Indeed, on the day following the pronouncement of that judginent;the momentous announcement was made that, the President who had abrogated the constitution and proantilgated the Laws (Continuance in Force) Order, l958, had himself resigned, and was due shortly to leave the country. Now that the situation has been stabilized, it is possible to reappraise the provisions Ùf the Laws (Continuance in Force) Order in a calmer light. Nine months have elapsed since its promulgation and its application in actual prictice has become a thatter of observation. (I shall do so as closely as I can in relation to the question whether it was the intention of that Order, and whether the effect of Article 2(7) thereof was, that all pending writs for the direct enforcement of Fundamental Rights should abate forthwith, i.e. without consideration of the question whether in the changed legal structure, such writs were competent. or otherwise.

As I have pointed out already, the consequence of the promulgation of that Order, was that the compulsive force of the Funda- mental Rights in respect f all laws and all executive actions was at one stroke taken away. That plain conclusion, sufficien to cause the failure of every proceeding before a Court in which the question of the issue of a writ to enforce a Fundamental Right was pending, either as an original matter, or constructively in appeal or revision, in the absence of a saving provision or feature. Was it then necessary for the authorities of the new regime to insist upon every such proceeding being abruptly terminated and extinguished from the very outset? I can imagine that this harsh procedure might have been deemed unavoidable where the pendency of a writ was in itself, in a large way or in a small way, a threat to the parairouat authority of the new regime. But looking through the list of Fundamental Rights, I cannot find any one of them (other than that relating to preventive detention which received special treatment In the Order) which might in itself, by being put into operation, have prejudiced the success 1t’ the new regime as it has been observed in operation during the past nine months. It is true that the suspension of constitutional guarantees frequently accompanies the promulgation of Martial Law, and it is true also that even the late Constitution by Article 191 empowered the President in a state of grave emergency to issue a proclamation, and during the pendency of such proclamation, by Article 192, the President was empowered to

“declare that the right to move any Court for the enforcement of such of.the rights conferred by Part Il as may he specified in the Order and all proceedings pending in any Court for the enforcement of, the rights so specified, shall remain suspended for the period during which the Proclamation is in force.”

But by depriving the Fundamental Rights of compulsive force in law, their enocement through the Courts was rendered impossible, and any pending proceedings for the purpose were, in the absence of saving, doomed to failure in any case, so that action on the lines of Aricle 192 was rendered unnecessary. On the other hand, the Laws (Continuance in Force) Order, in terms, expressly provided that notwithstanding the abrogation of the late Constitu- [*438]-tion, but “subject to any. Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic to be known henceforward as Pakistan shall be governed as nearly as may be in accordance with the late Constitution.” The provision. is, in my opinion, of high importance as furnishing a key to understanding of the true nature of the Martial Rule imposed upon the country by the then President on the 7th October 1958. The old Constitution was repudiated as to its form, but it j possible to read in these words an assurance that its provisions, so far as applicable in the changed conditions, resulting from the dissolution of he Legislatures and the dismissal of the elected Governments, would continue to be applied in practice though subject to the expressed will of the new Sovereign authorities.

This feature gives a character of novelty to the new regime, as a form of Martial Rule. In the Dosso case, the nature of this provision was considered only in its bearing on the question whether the Fundamental Rights had survived the Revolution, as such rights. Upon this point, unanimity of opinion appears from the four judgments delivered. My Lord the Chief Justice thought that he provision in question had reference to “the structure and outline of a Government and not to the law of the late Constitution which has been expressly abrogated by Article 4.” My learned brother Shah·buddin J., thought that the words must be “taken to refer rather to the machinery of Government than to legislation and matters affecting the validity of laws”. My learned brother Amiruddin Ahmad J., expretsed himself as follows :

“The word ‘governed’ relates to the structure and manner of Government, which has been changed by the dissolution of the legislative bodies and the dismissal of the Ministries, and the words in the Article have not the effect of reviving Fundamental Rights “.

In my own judgment, I have said :—

“Consequently, the words in section 2 of the Order, viz., ‘in accordance with the late Constitution’ only mean that in matters affecting the Government of the country, for which no provision is made in any instruments issued under the authority of the new regime, where guidance is needed, it is to be sought by reference to the wording of provisions contained in the Constitution of 1956 applicable in the like case. The direction is one which operates by reference to a previous instrument, without giving validity to that Instrument”.

During the past nine months, it has clearly appeared that the provisions of the late Constitution are indeed being observed, not as a mere matter of courtesy or of merely general guidance, but that in actual practice, where the provisions of the late Constitution are applicable in their terms to matters arising for governmental action, they are being applied according to their, terms. Equally, as a matter of practice where in the circumstances a variation is desired it is supported by the authority of a Presidential Order or a Regulation of the Chief Administrator of Martial Law as the case may be. Where, on the other hand [*439] the case is one of application of the provisions in the altered ithans it seems that discretion is exercised by the Ëxecutive in making The necessary adaptation to suit the changed circumstances.

This degree of adherence to the provisions of the late Constitution at all levels induces me to make the obseration that perhaps the words “shall be governed as nearly as may be in acordance. with the late Constitution” have been somewhat undervalued on the last occasion when they were brought up before this Court for examination. The full power and purpose of these words may not have been appreciated at that early date. They may indeed be an indication that the Martial Law under which the country was placed by the Presidential Proclamation of the 7th October 1958 is different in essential respects from th ordinary conception of Martial Law. The question will bear a little examination.

We think of Martial Law generally, in terms of military occupation of occupied territory, and, within the municipal sphere, as the entrustmeÒt of plenary powers to the armed forces for the purpose of restoring law and order in a part of the municipal territory where conditions have reached a point of disturbance beyond the capacity of the civil authorities to conol. It is not at all common to find Martial Rule being introduced over a whole country in circumstances of general peace. Such a condition approximates more closely to the application of Martial Law to an occupied territory than to the like application over a disturbed area of municipal territory. In an occupied territory a military government replaces the suspended sovereignty, and Martial Rule replaces the previous governmÈntai agencies. But it does not follow that such rule is purely arbitrary as to power or uncontrolledby principle or unrestricted as to method. Like any other fortÒof rule over human beings, it is obliged by the circumstanËs to adapt itself to the circumstances in order to gain its end and one such circumstance of the utmost importance is the settled habits and sentiments of the people. One of the definition of a Constitution is

“that body of rules and maxims in accordance with which the powers of Sovereignty are habitually exercised’

and to such habitual exercise, it is axiomatic that the people become reidily accustomed. It is always of importance to a new regime to came the minimum disturbance in the lives of the ordinary citizens consistent with the execution of the purposes underlying its inception. Thus it is conceivable that through public exigeticy a peaceful country may be placed under Marial Law for such a purpose as, say, the reconstitution in the light of past experience and the present and future requirements of the country at large, of the made of exercise of the superior authority of the State through the system of popular representation. In such a case there snay:be no general necessity for the new regime to alter the proceses of government in their impact on the lives of the ordinary citizens (excepting, of course, the machinery of popular representation). But it is a matter of general and indeed of supreme necessity that the paramount authority of the new [*440] sovereignty should be established and maintained, and the first step to this end must necessarily be the demolition ot the foundation upon which the previous and superseded sovereignty was based which was, in this case, the Constitution of 1956. In other words, while abrogation of a Constitution to which the. people were accustomed and under which they were living peacefully might become a matter of necessity, it is not essential that the provisions of that Constitution so far as they operate upon the lives of ordinary citizens, through the machinery of Government at all levels below the highest level, should be affected beyond the absolute necessity.

I think that it is proper to regard the provision made in Article 2 (1) of the Order in this light. It is not a mere reference book, or even as Mr. Brohi was heard to argue, an Instrument of Instructions of the kind, which were issued to the Governor General of India and Governors. of Provinces by the British Sovereign under the Government of India Act, 1935. The words “shall be governed” are mandatory in expression as well as in effect, and by saying that the provisions in question shall be operative subject to specified written instruments issued by the highest authorities of the new regime, the value and force of the words in which these provisions are embodied in the late Constitution is certainly raised, in a legal sense much beyond that of words in a mere book of reference.

Yet, by Article 4(1) it is expressly provided that nothing in the late Constitution shall operate as positive law as from the 7th October 1958, and in the face of that express exclusion, the question may well be asked in what category of directions having binding effect upon the Government of a State can one place those provisions of the late Constitution to which effect has, been secured by Article 2(1) in the sense indicated above? The words in question convey a clear sense of obligation. Yet the obligation is not to be conceived as deriving from the possession of status as law. The question is one of great difficulty and is susceptible of discussion in the light of legal theory and political philosophy at great length. The answer which to me seems most apt to resolve the difficulty is that while the words in Article 2(1) convey an assurance that the new regime will govern the country upon the lines to which the people are accustomed, namely, in accordance with the provisions of the late Constitution, yet this is not an assurance which carries legal sanctions enfoceable in courts of law, nor is the obligation assumed by the Martial Rule as a matter of law. The assurance is immune to legal process to the same extent as the Martial Rule is itself immune, and I conceive that this is only possible upon the theory that by virtue of Article 2(1), and within the terms of that Article, the provisions in question have been adopted as part of the Martial Rule In other words, the directory provisions of the late Constitution referred to in Article 2(1) have, subject as expressed in the Order, been subsumed into the Martial Law. The force which they possess is not relatable any longer to their enactment in the Constitution in which they appear, but exists only because of and by reason of the Martial Law, and only to the extent that the Martial Law by expression does not recall or avoid them. [*441]

It has been, said, with reference to the imposition of Martial Law in an occupied territory in time of war; that it is synonymous with the will of the military commander and is not law at all. That view is not accepted in a case where the Martial Law is imposed in a limited area of the municipal territory. In such a ae the Matial Law is a part of the Common Law in the British Jurisprudence. The kind of Martial Law with which we are yilling clearly has the latter aspect. But it is probably true to say with respect to every species of Martial Law, during its continuance, that it is neither supported by nor subject to the control of, law or of the courts of justice. It is universally accepted that the sanctions applicable to Martial Law in these circumstances are sanctions of a pragmatic nature: Upon the argument which I have outlined above, it must follow that, as the dirtory provisions of the late Constitution, whose application is to the government of. the country is secured by Article 2(1). the same must be true, viz., that despite their legality of form, and athe fact that they once possessed the highest legal force. and effect, they are under the changed conditions not supported by any legal sanctions. No actions at law can be based upon these provisions, and the Courts possess no authority for their enforcement, because they are subject only to the same sanctions as are applicable to the Martial Law.

If this view be correct, then it must fol ow that the Fundamental Rights in Part II of the late Constitution have not become entirely devoid of validity, any more than the Preamble of that Constitution, or the Directive Principles of State Policy in Part III. The Fundamental Rights have indeed lost the operation which was conferred upon them by the provision in Article 4 of the late Constitution, but they nevertheless remain as provisions in the late Constitution, and are valid to the extent assured by Article 2(1) of the Order. I cannot accede to the suggestion heard during the course of the argument that there has been conscious avoidance of explicit abolition of the Fundamental Rights, from motives of policy. On the contrary, I find a cleart expression in the Order of the policy of allowing them validity to the extent indicated above.

This conclusion confirms me in the belief I expressed in the Dosso case, that it cannot have been the intention or purpose of Article 2(7) of the Order to extinguish every pending proceeding which may have been commenced before the Proclamation to obtain relief against a statute or any executive action on the basis of a Fundamental Right. The provision in Article 2(7) that writs “not so provided for shall abate forthwith” still appears to me reasonably applicable only to such proceedings as might constitute a threat to the supremacy of the new regime. Such proceedings might be motions for writs directed to a Martial Law authority, and these, are expressly excluded by Article 2(4). Such motions commenced pre-Proclamation against an authority since replaced by a Martial Law authority are treated of in Article 2(5). and it is significant that they are not abruptly extinguished. Instead the direction given is that the Court may furnish the Martial Law authority with an advisory opinion. I am inclined to read that as a contra-indication to the existence of any intention [*442] to extinguish any pending proceedings, merely bedause they seek relief on the ground of a Fundamental Right.

For these reasons, I would hold that the proceedings for writs out of which the present appeals arise did not abate by the operation of Article 2(7) of the Laws (Continuance in Force) Order, 1958, but that the appeals presented by the Provincial Government are liable to dismissal on the ground that they seek review of the law declared by the Supreme Court, in respect of wakfs and wakfs-alal-aulad, in the Jibendra Kishare case, and that in the circumstances, it is neither expedient nor necessary that granted/’Further, the orders under appeal are made in implementation of the law as declared by this Court earlier in the same cases, and are competent on that account. On the view I have taken I would be prepared to allow costs to each of the respondents if only for the reason that they are mutwallis of wakfs.

Amiruddin Ahmad, J.—I need not repeat the facts or the history of these cases which have been sufficiently stated in the other judgments. These appeals came up for hearing before this Court at an earlier stage and were disposed of on the 17th January, 1957. The main objection to the acquisition of the lands relating to these cases was founded on Article 18 of the Constitution, and with a view to determining whether the Act infringed a fundamental right guaranteed by Article 18 of the Constitution and was therefore void to that extent, this Court after examining the relevant provisions of the impugned Act, namely, the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956, recorded the, following findings arrived at by my Lord The Chief Justice, with which all the other Judges concurred :—

There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the ftmdaxnental right guaranteed by Article 18 of the Constitution? In the High Court, Mr. Brohi’s bold and categorical assertion that the rights referred to in Article 18 are ‘subject te law’ and may therefore be taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only, technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Surin ah could not possibly have intended to empower the legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, [*443] and who in their conception of the ideal: of a free, tolerant and democratic society could not have denied a similar right to the non-Muslim citizens of the State. . . . . . . . . . I refuse to be a party to any such pedan.ti, technical and narrow construc- tion of.the Article in question, for I consider it to be a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which,were designed to safeguard the freedom. of conscience and’ worship. . . . . . . . . . . . In the light of these rules of construction of Constitutional instruments it seems to me that what Article 18 means is that every citizen has the right to profess, practise and propagate his religion and every sect of a religious denomination has the right to establish, maintain and manage its religious institutions, though the law may regulate the manner in which religion is to be professed, practised and propagated and religious institutions are to be established, maintained and managed. The words ‘the right to establish, subject to law, religious institutions’ cannot and do not mean that such institutions may be. abolished altogether by the law.”

After thus determining the law and adapting it vis-a-vis the Constitution for the purpose of these cases this Court remanded them to the High Court, as each wakf> involved in these cases was not examined by it, by the following order :—

“Appeals Nos. 2-D, 3-D, 4-D, 3, 13, 28, 31 and 34 of 1958, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution, and for granting such relief as the Court. in its discretion may consider to be appropriate in the circumstances.”

The najority of the Judges, who dealt with these cases after remand, field that by this order the Supreme Court had impliedly decided that wakf, wakf-alal-aulad and debutter were religious institutions and were protected under Article 18 of the Consti-tution-from acquisition and that the only matter to be decided by them was whether the dedications involved in these cases were for puroses recognised by the Muslim Law as religious and charitable. All the three Judges of the High Court, who dealt with these cases, held that wakf and wakf-alal-aulad are religious institutions. With regard to the validity of the particular walÁfs it was conceded at each stage by the Province of East Pakistan that they were valid wa/cfs under, the Muhammadan Law. In the result, therefore, it was held by the High Court that the notices of acquisition issued under subsections (1) and (2) of section 3 of the impugned Act were illegal and the opposite party were directed to withdraw or rescind the notices issued in respect of rent-receiving interests of the petitioners, for which purposes the writs were issued. The order of the High Court was passed in December 1957 in accordance with the law which was understood by the majority of the Judges to have been declared by the Supreme Court, which under Article 163 (1) was binding on all Courts in [*444] Pakistan. Against the order passed on remand the Province of East Pakistan and other respondents in those cases have appealed to this Court, and the main ground of attack is that in view of our decision in Dosso’s case and the abrogation of the Constitution after the 7th October 1958, these appeals and the petitions giving rise to them have all abated under paragraph 2 7) of the Laws (Continuance in Force) Order, 1958. To my mind. in view of the findings of this Court as the question of funda- mental right in the Constitution was not necessary to be considered by the Judges of the High Court in disposing of the cases after remand and the writs issued by them were not required to be based on a consideration of fundamental rights, they were to decide them on the law declared by the Supreme Court. By paragraph 2, sub-paragraph (3) of the Laws (Continuance in Force) Order, 1958, the law declared by the Supreme Court has been made to be binding on all Courts in Pakistan. Therefore, writs could be issued on the law so declared-oven after the abrogation of the Constitution until the law was changed. So these writs are provided for by paragraph 2 (3) read with (4) of the Laws (Continuance in Force) Order, and therefore do not abate, and these cases are distinguishable from Dosso’s case, which was rightly decided. In that case the question of fundamental right was a live issue in the appeal before this Court and those’ writs were not provided for in the Laws (Continuance in Force) Order. But in the present cases th question of repugnancy to fundamental rights in the Constitution and its effect was already decided at a previous stage of these appeals, long before the new Order. Even if the State Acquisition Act be held to be continued by the Laws (Continuance in Force) Order, 1958, in its original form under the new dispensation, and that the law has been changed, the notices of acquisition, which were held invalid by the High Court, against which the writs were issued, continued to be illegal and not in force immediately before the Proclamation of the 7th October 1958 and cannot be held to be continued in force by the said Order. On the merits of these cases also the findings are entirely against the present appellants. I would, therefore dismiss these appeals.

S. A. Rahman, J.—I respectfully agree with the conclusion reached by my Lord The Chief Justice and the judgment he proposes to deliver in these appeals. 1 wish, however, to add a few observations of my own in support of the view that has found favour with my Lord.

The previous judgment delivered by this Court ‘in these cases. to my mind, was merely declaratory of the law applicable to an assumed set of facts and circumstances and the remand order clearly envisaged that the High Court would deal with the cases in the exercise of its own judicial discretion in the light of the facts to be found by them and the law declared by this Court. There was no final determination of any issue of fact in the cases, by this Court, such as could have sufficed for their disposal by a mere formal or ministerial order to be passed by the High Court. 1f that had been the case, the remand order would have been a mere redundancy.

One of the crucial questions calling for decision in these [*445] appeals is that of the effet of a judicial declaration of unconstitutionality of the provisions of a statute on the ground inconsistency with any of the Fundamental Rights embodied in Part II of the late Constitution. To the extent of such inconsistency, that Constitution provided that the relevant law “shall be void”. It has been strenuously contended at the bar on behalf of respondents that the word “void” in this context implies the complete effacement of the offending part of the statute in question and that the statute must be regarded as non est pro tanto from the date that the Fundamental Rights were enacted in the Constitution. The result would, then follow that the law would be carried forward by the Laws (Continuance in Force) Order, 1958, in a truncated., form and not in its pristine in’tegrity. As has been pointed out by my Lord, the draftsman of the Constitution has used the same expression in relation to. repugnancy in the concurrent field of legislation between a Federal, or existing law and a provincial law. in Art. 110 of the late Constitution and-there is athortity of the Privy Council available for the view that in uch a situ4tion, the superior law is allowed to prevail for the time being and the inferior law- merely remains dormant or in abeyance til such tias the pressure of the superior law is removed. Strong support is lent to this view by the intrinsic evidence of Art. 191 (4) the late Constitution in so far as it uses the following formula to resolve a similar conflict that might arise during the currency of a poc1m·tion of Emergency Nothing in this Article shall restrict the power of a Provincial Legislature to make any law which under the Constitution it has power to thake but if any proision of a provincial law is repugiant to any provision of a Federal: law, which parliament has under this Article power to make, the Federal law, whether passed before or after the provincial law, shall prevail and the provincial law, shall, to thÈ extent of the repugnancy, but so long as the Federal law continues to have effect, be void.

Such ephemeral effect of the dominant law would seem to suggest that the state of the servient law is more akin to hibernation than to total destruction or death, during the relevant period. In the circumstances it cannot be said that the framers of the Constitution have used the term “void” in aily single unequivocal sense.

The fact must not be lost sight of that some of the funda- mental rights guaranteed by the late Constitution were available only to citisns df Pakistan and not to aliens. An instance in point is the equality clause included-in Art. 4 of the late Constitution. In a case of the..type which formed the subject of decision by this Court in Waris Meah v. The State (1) if the appellant had been an alien, no relief could have been granted to him and the impugned provisions of the Foreign Exchange Regulation (Amendment) Act (XXXII of 1956) would have been enforceable against him, in spite of their discriminatory character. 1f the offending provisions supposed to have been “struck down” at the instance qfcitizen, they could not be applied even in the case of

(1) P L D 1957 S C (Pak.) 157

[*446] an alien but that would be a result-not contemplated by the Constitution. It must consequently beheld that, those proviston though not operative against citizens, would still remain, a lise Part of the statute and the theory of effacement of the offending provisions for all purposes and persons and for all times, cannot be. sustained.

The language of Art. 4 of the late Constitution covers all the Fundamental Rights mentioned in Part Il thereof aid if in the case of one fundamental right, as has been demonstrated above, the proposition contended for is unsound, the whole gamut of fundamental rights must share a common disability to effect a repeal, or abrogation of any law that may be in conflict with them under the late Constitution. The term “void” occurring in Art. 4 must therefore be construed to mean as “not in operation” or “not enforceable” or “in abeyance”, as long as the supreme law holds the field. It is not the equivalent of “;ab initio void” as is the case with an enactment ultra vires the legislative autlibrity. The words “to the extent of such inconsistency” is also a pointe in the same direction.

With the abrogation of the Constitution, on the promulgation of the President’s proclamation, the Fundamental rights dis- appeared from the field entailing the consequence that laws edsting on the Statute Book were giveit a fresh lease of life by the Laws (Continuance in Force) Order, 1958, in their original condition and those of their provisions which were inconsistent with the Fundamental Rights, bave been revived in their full vigour. The East Bengal State Acquisition and Tenancy Act, 1950 has under gone a similar change. Because of the appeals pending in thi Court the subject-matter of the dispute has become sub judice and in my humble judgment therefore, the appeals are not taken out of the principle laid down in Dosso case and ought to be rejected as having abated.

Order of the Court

In accordance with the view of the majority, the appeals are allowed and the parties are directed to bear their own costs.

A. H.

Appeals allowed.