July 5, 2019


Important Case decided By SC. P L D Supreme Court Present: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Sajjad Ahmad, Waheeduddin Ahmad. There have been a lot of important and leading cases in the history of Pakistan. Asma Jilani vs Government of the Punjab case is one of them. What is the grudge-Nazi informer case? • Riggs v Palmer, Re Sigsworth case. • Kelson in Pakistani courts??? • Dosso v. State,. • Asma Jilani v. The Government .

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Into this exercise the Court, unfortunately, did no enter. In the circumstances, upon the public declarations caze Field Marshal Muhammad Ayub Khan and General Agha Muhammad Yahya Khan themselves there was nothing to suggest that “the existing machinery for dispensing justice was found wanting or that it was to be subject to curbs or that a state of affairs was to be brought about in which the will of the Martial Law Commander was to be imposed.

The latter Order too was clearly unnecessary, for, there is nothing to indicate that the Courts were, in any way, subverting the vase of Government or doing anything which could, jilqni any stretch of imagination, be considered to be objectionable. Realism, like positivism, looks on law as the expression of the will of the State as made through the medium of the Courts.

It was pleaded that the arrest of Mr. Both these assumptions were wrong. It was in this state of affairs that the nature and scope of the Martial Law imposed in first came up for consideration before the Lahore High Court in the case of Mir Hassan and another v.

Yahya Khan’s Government, therefore, remained de facto and not de jure up to 20th Decemberwhen he stepped aside. Thus, in Islamic Jurisprudence, the will of a sovereign, be he the monarch, the President or the Chief Martial Law Administrator is not the jliani of law.

On the 30th Decemberthe Governor rescinded the order of detention and simultaneously, ,in his capacity as Martial Law Administrator, Zone caze, passed. Subscribe to our Mailing List to receive our Newsletter. Blackstone in jilan Commentaries, Vol. So the detention of these persons were challenged in Lahore and Karachi High Court respectively. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public.


Enter the email address you signed up with and we’ll email you a reset link. Due to cass judicial. Conclusions of law asa not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press.

Asma Jilani Jahanghir (Member ) | International Commission against the Death Penalty

The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. However, since this question is not before this Court I refrain from expressing any definite opinion with regard thereto. Dosso had profound effect on the constitutional developments in Pakistan. Reference in this connection has been made to two decisions. In practice, the Martial Law imposed by Yahya Khan belonged to the second category.

Thereafter, only on the 4th of April a Provisional Constitution Order was enacted whereby the Constitution ofwas by and large restored, and it was provided that the country was to be governed as nearly as may be in accordance with its terms subject to the Proclamation of Martial Law and subject to any Regulation or Order that may be made from time to time by the Chief Martial Law Administrator Vide Article 3 1.

This was followed three days later by the promulgation of the Laws Continuance in Force Order on the 10th asmw October The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of casd subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.

For the same reasons the habeas corpus too was dismissed.

Asma Jilani Jahanghir (Member 1952-2018)

Save as otherwise provided in this Order, the provisions of this Order shall be in addition to and not in derogation of the Proclamation and shall be read and construed accordingly. Province of Sind and others arises out of an order of a High Court dismissing an application csse section of the Code of Criminal Procedure read with Article 98 of the Constitution ofchallenging the arrest of Mr.

In the view that I have taken of the Presidential Order No. Its Judges may see the President usurping powers that do not belong to him, Congress exercising functions it is forbidden to exercise, a State asserting rights denied to it. What is law is really a theoretical question.


If the litigant does not choose to raise a question, however, important it might be, it is not. They had not only defactovalidity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. This case was followed by the interim Constitution of and then by the permanent constitution of This may be a perfectly good definition from the legal practitioners’ point of view but legal theorists have spent a great deal of time cawe energy in elucidating the concept of law.

They remain illegal, but acts done and proceedings undertaken under invalid laws may be condoned on the conditions that the recognition given by casee Court is proportionate to the evil.

Neither Pakistan was a conquered territory, nor the Pakistan Army commanded by Yahya Khan was an alien force to justify the imposition of this type of Martial Law. Asma Jilani appealed to Supreme Court which held that this country was not a foreign country which had been invaded by any army with General Agha Mohammad Yahya khan as its Head, nor was it an alien territory which had been occupied by the said Army.

List of cases of the Supreme Court of Pakistan

In particular I wish to express my gratitude to both Mr. When Asma Jilani’s judgment was released, Yahya khan was not in power, but now it was Bhutto’s Martial Law and Bhutto was the chief Martial law Administrator and the president. The Federal Government was to be headed by a President who under Article 35 1 could be impeached on a charge of violating the Constitution or gross caae. To hold to the contrary today, if that were possible, would have the effect of disturbing a great many things done during the period of Martial Law, affecting asa and institutions and in certain cases the whole of a Province, which things were valid in the period they were jilan, and have formed the basis of further actions by the authorities as well as by the citizens concerned.