Introduction
Judiciary
plays a very important role in the interpretation of the statutes and laws. The
judiciary has a pivotal role in the development of law. It develops law by
giving judgments which become precedents. So precedents may be regarded as
source of law. In Pakistan to the superior Courts gave judgments which became
precedents. 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.
Bench
of Supreme Court
- Chief Justice: Hamood ur Rehman
- Justice: Waheed ud Din Ahmad
- Justice: Muhammad Yaqub Ali
- Justice: Salahud din Ahmad and
- Justice: Sajjad Ahmad
Facts of Case
The
facts of the Asma Jalani v/s Government of Punjab case are following:
1.
Challenge of Malik Altaf Gauhar’s Detention
The appeals
were filed because of the detention of Malik Altaf Gauhar and Malik Ghulam
Gillni. The detention of both of them was challenged.
2.
Persons challenged the detention
The
persons who challenged the detention were Miss Asma Jilani who filed appeal for
the release of Malik Ghulam Jilani and the other one was Zarina Gauhar who
filed appeal for the release of her husband Altaf Gauhar.
3.
Court in which Petition filed
The
writ petition was filed by Asma Jilani in the Lahore High Court for release of
her father Ghulam Jillani and Mrs Zarina Gohar filed an appeal in
Sindh-Balochistan High Court.
4.
Law under which Mr. Altaf Detained
Altaf
Gauhar and Malik Ghulam Jilani were detained under Martial Law Regulation No.
78 of 1971.
Principles of Law or Rule of Law
Following
are the Principles of law or Rule of law
i.
Principle laid down in State Vs Dosso
It
was held in this appeal that principles, which were laid down in State vs
Dosso, were not justified.
ii.
Constitution of Pakistan 1962
It
was settled in this appeal that courts gave full effect to constitution of
1962, and all laws made and acts of various civil and military governments
became lawful and valid due to that recognition, which constitution of 1962 and
courts gave them.
iii.
Court Duty
It
was held in this appeal that court’s judicial function was to adjudicate upon a
real and present controversy, which a litigant raised before it, and if
litigant did not chose to raise a question, it was not for court to raise it
suo motu.
iv.
Bias in Judge
It was
settled in this appeal that mere association with drafting of a law could not
disqualify a judge from interpreting that law in light of those arguments,
which presented before him.
v.
Jurisdiction
It
was held in this appeal that superior courts are judge of their own
jurisdiction.
vi.
Proclamation of Martial Law
It
was decided in this appeal that General Yahya Khan’s proclamation of martial
law was illegal.
vii.
Doctrine of Necessity
Although
doctrine of necessity was once again pleaded to defend military regime of
General Yahya Khan, yet same was rejected through judgment of this appeal.
Conclusion
To
conclude, it can be stated that judgment of case of Miss Asma Jillani was
though announced after end of General Yahya Khan’s rule, yet it initially led
to end of Bhutto’s martial law and finally it paved way for restoration of
democracy and for adoption of constitution of 1973.
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