2020 Y L R 1015
[Balochistan]
Before Jamal Khan Mandokhail, C.J. and Abdullah Baloch, J
BEHRAM ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---
Respondents
Constitution Petition No. 822 of 2019, decided on 25th November, 2019.
Balochistan Maintenance of Public Order Ordinance (XXXI of 1960) ---
----S. 16 ---Constitution of Pakistan, 1962, Art. 225---Vires of law ---Maintenance of public
order ---Petitioner sought annulment of Balochistan Maintenance of Public Order O rdinance,
1960 as being ultra vires Constitution--- Validity --- If authorities were satisfied on receipt of
credible information that a person was involved in anti -State activities Balochistan
Maintenance of Public Order Ordinance, 1960 was to regulate arr est and detention of such
culprit and in case against whom such order of arrest and detention had been passed was within such officer's jurisdiction, that officer could arrest that person without a warrant in same manner as he would have done for period not exceeding three months ---Legislature had
validated provisions of Balochistan Maintenance of Public Order Ordinance, 1960 under Art. 225 of Constitution of Pakistan, 1962--- Petition, in the present case, was outcome of
continuous arrest and detention of petitioner however, it could not be termed that Balochistan Maintenance of Public Order Ordinance, 1960 was ultra vires Constitution---For violation of fundamental rights protected under Constitution, every citizen could invoke jurisdiction of competent court of law for redressal of his grievance ---Constitutional petition was dismissed
in circumstances.
Habibullah Khan Nasar for Petitioner.
Date of hearing: 21st October, 2019.
ORDER
ABDULLAH BALOCH, J. ---In this petition, the petitioner Behram son of Yar
Muhammad has sought the following reliefs:--
"It is, therefore, respectfully prayed that keeping in view the above made humble submissions, the impugned ordinance may kindly be declared null and void, as the same is promulgated and adopted by the r espondents in violation of the fundamental
and human rights guaranteed by the Constitution of Islamic Republic of Pakistan, injunctions of Islam and international community in the interest of justice, equity and
fair play."
2. Facts of the case are that th e petitioner has challenged the promulgation of "the West
Pakistan Maintenance of Public Order Ordinance, 1960" (hereinafter referred as, "impugned
Ordinance") with the averments that in the year 1960 in the regime of Dictator and Martial Law Administrator on the instructions of the then President Muhammad Ayub Khan, the then
Government of West Pakistan promulgated the said Ordinance with sole intention to suppress the voices raising against the illegal martial law administrator and after dissolution of one
unit, the Province of Balochistan adopted the impugned Ordinance and thereafter different amendments were introduced by the Government of Balochistan, while the petitioner was
confined under the said Ordinance. It is further averred in the petition that t he impugned
Ordinance is in conflict with the fundamental and human rights of a citizen of this Pakistan,
guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred as, "the Constitution of Pakistan"), wherein the principles of democracy, freedom, equality and
freedom of thought and expressions were protected and guaranteed. Besides, it is in derogation of the basic concept of criminal law as well as in violation of international treaties and conventions of the International Organizations, to which the State of Pakistan is the signatory and even the said Ordinance is not backed by the wisdom of the legislature, thus liable to be declared as null and void.
3. The learned counsel for the petitioner contended that the Ordinance w as promulgated
in the early 60s in the regime of a dictator, Martial Law Administrator with the intention to suppress the voice of the political leaders and activists and to detain them in illegal confinement and also to victimize the political opponents w ithout any evidence; that the
Ordinance is ultra -vires of the constitution having no force is liable to be declared as null and
void. Even otherwise, in presence of especial and regular laws the very purpose of this
Ordinance is futile exercise having no override effect, but the authorities on the garb of this Ordinance illegally and unlawfully can detain any patriotic citizen of Pakistan on the allegation of anti -social activities, for a desirable specific period, which is against the
fundamental rights of a citizen, protected under Articles 4, 8, 9 and 15 of the Constitution;
that the Ordinance is also not validated by the constitution, as such, is ultra -vires of the
constitution and liable to be declared null and void.
4. We have heard the learned counsel for the petitioner and perused the record minutely,
which reveals that the petitioner mainly agitated against the Maintenance of Public Order (MPO) Ordinance, of 1960 that the same is ultra -vires of the Constitution and also not
validated by the Legislatu re/constitution and further questioned the prevalence of the
Ordinance on the ground that for the purpose of control of anti -social activities. The Special
Laws i.e. Anti -Terrorism Act, is in the field, so there no need of Ordinance, it has already
lost it s importance, same is the ultra -vires of the constitution, as the said Ordinance was
promulgated in the regime of a Martial Law dictator in the earlier 60s, just to harass and blackmail the political activists by way of detaining them in illegal confinemen t.
5. We with utmost care and caution considered the view of the learned counsel for the
petitioner and also gone through the Ordinance, no doubt the MPO Ordinance was promulgated in the year 1960 by the regime of the then Martial Law Administrator for
maintenance of Public Qrder to maintain peace and tranquility in the country and to refrain
the anti -State activities of culprits and the wisdom behind the Ordinance was that if the
authorities satisfied on receipt of a credible information that a person is involved in Anti -
State activities there should be law to regulate the arrest and detention of such a culprit and
in case against whom such order of arrest and detention has been made under this Ordinance
is present within such officer's jurisdiction he may arrest him without a warrant in the same
manner as he would have done, for a period not exceeding three months and the said
Ordinance was validated by the legislature under Article 225 of the Constitution of Pakistan 1962, which is reproduced as under:
"225. (1) Except as provided by this Article, all existing laws shall, subject to this
Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate legislature.
(2) The Presi dential Proclamation made on the seventh day of October, One thousand
nine hundred and fifty- eight, is revoked with effect as from the commencing day, and
the Orders specified in the Table to this clause (and any Orders amending those Orders) are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Order.
Number Title
No. 1 of 1958. The laws (Continuance in Force) Order, 1958.
No. 2 of 1958. The Government (Presi -dential Cabinet) Order, 1958.
No. 2 of 1959. The Legislative Powers Order, 1959.
No. 8 of 1959. The State Arrangements Order, 1959.
(3) All Martial Law Regulations, except those specified in the Table to this clause, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation so specified shall be deemed to have become an Act of the Central Legislature and shall, with the necessary adaptations, have effect as such.
Date Title
7th February, 1959. West Pakistan Land Reforms Regulation,
23rd July, 1959. Rawalpindi (Requisition of Property) Regulation, 1959.
16th June, 1960. Pakistan Capital Regulation.
23rd August, 1961. Scrutiny of Claims (Evacuee Property) Regulation.
17 March, 1959. West Pakistan Border Area Regulation, 1959.
(4) For the purpose of bringing the provisions of any existing law into accord with the
provisions of this Constitution (other than Part II of this Constitution), the President
may, within the period of two years after the commencing day, make, by Order, such
adaptations, whether by way of modification, addition or omission, as he may deem to
be necessary or expedient, and any Order so made shall have effect (or be deemed to have had effect) from such date, not being a date earlier than the commencing day, as may be specified in the Order.
(5) The President may authorize the Governor of a Province to exercise, in relation to
the Province, the powers conferred on the President by clause (4) of this Article in respect of law relating to matters with respect to wh ich the Legislature of the
Province has power to make laws.
(6) The powers exercisable under clauses (4) and (5) of this Article shall be subject to the provisions of any Act of the appropriate legislature.
(7) In this Article, "existing laws" means all laws (including Ordinances, orders -in-
Council, Orders, rules, bye -laws, regulations and Letters Patent constituting a High
Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extraterritorial validity, immediately before the commencing day."
In view of validation of the Ordinance under Article 225 of the Constitution of 1962,
the Ordinance it cannot be said ultra- vires of the constitution, as such, the objection of
learned counsel for the petitioner having no force. As far as the next objection of the learned
counsel for the petitioner is concerned that by garb of this Ordinance the authorities with mis-exercise of power illegally and unlawfully arrest and detain a pol itical activist for doing
nothing just to curb his right of speech in sheer violation of fundamental rights protected
under the Constitution of Islamic Republic of Pakistan 1973. To some extent the contention
of the learned counsel for the petitioner might be correct as in number of cases, we observed
that the authorities mis -exercised their powers and illegally and unlawfully detained the
innocent persons, but on the other hand, it is apparent from the record such alleged orders of the authorities have been declared as null and void, the petitioner is also one of the beneficiary of the judgments of this court.
As far as filing of this petition is concerned we observed that this is outcome of
continuous arrest and detention of the petitioner, however, it ca nnot be termed the Ordinance
as ultra -vires of the Constitution. It varies from case to case basis, thus for violation of
fundamental rights protected under the constitution every citizen can invoke the jurisdiction of competent court of law for redressal of his grievance.
For the reasons discussed hereinabove, the petition being devoid of merits is
dismissed in limine.
MH/182/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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