After independence of Pakistan, Pakistan is weal political institution, powerful Army, several military coups and infamous Article 58(2)(b) of Constitution of Pakistan 1973. Due to these factors, the constitution development was stop in Pakistan. Judiciary plays a important role in the interpretation of statutes and laws. These have been a lot of important and leading case in the History of Pakistan. Begum Nusrat Bhutto vs Chief of Army Staff and Federation of Pakistan case in one of them.
Bench of Supreme Court
- Chief Justice: Anwar ul Haq
- Justice: Waheed ud Din Ahmad
- Justice: Muhammad Haleem
- Justice: Safdar Shah
- Justice: Muhammad Afzal Cheema
- Justice: Dorab Petel
- Justice: Muhammad Akram
- Justice: Naseem Hassan Shah and
- Justice: Qaisar Khan
Facts of Case
Following are the facts of case of Begum Nusrat Bhutto vs Chief of Army Staff
i. Allegation of Official Interference with Elections of 1977
Opposition parties alleged that there was official interference with elections of 1977 in favour of ruling party of Prime Minister Zulfiqar Ali Bhutto.
ii. Anti Bhutto Movement
Oppostion parties never accepted results of elections of 1977. Therefore, they started anti-Bhatto movement.
iii. Military Coup
Prime Minister Zulfiqar Ali Bhutto’s dialogues with opposition leaders failed to stop military interference, and eventually General Zia-ul-Haq dismissed his government through military coup and imposed martial law.
iv. Arrest of Zulfiqar Ali Bhutto
With imposition of martial law, Zulfiqar Ali Bhutto was arrested.
v. Release of Zulfiqar Ali Bhutto
After some days, military government released Zulfiqar Ali Bhutoo.
vi. Re-arrest of Zulfiqar Ali Bhutto
After his release, Zulfiqar Ali Bhutto started public campaign, and this campaign eventually caused not only his re-arrest, but also arrest of his colleagues.
vii. Institution of Case
Against re-arrest of Zulfiqar Ali Bhutto, Begum Nusrat Bhutto filed this case against Chief of Army Staff.
Decision of the Supreme Court
Following are the decision of the Supreme Court
i) Rectification of Objections
It is clear that objection is only in the nature of technicality. The Chief of Army Staff is also CMLA and the objection could be rectified by adding words CMLA to the description of respondents as stated in petition.
ii) Kelsen’s Theory
The theory of revolution legality can have no application to situation where the breach of legal continuity is admitted to be of purely temporary nature and for specified limited purpose. It will be inappropriate to seek to apply Kelsen’s theory to such transient and limited change in legal continuity of country thus giving rise to unwarranted consequences of far reaching character not intended by those responsible for temporary change.
iii) Failure to maintain Law and Order
The Prime Minister faced difficulty to maintain law and order. There was political crisis in country leading to constitutional breakdown. A situation had arisen for which Constitution provided no situation. It was in these circumstances that Chief of Army Staff General Muhammad Zia-ul-Haq intervened to save country from chaos and bloodshed to safeguard integrity of Pakistan and to separate warring factions, which ad brought country to brink disaster.
vi) Arrangement of Fair Election
Chief Martial Law Administrator has stepped in for a temporary period and for purpose of arranging fair election.
v) Jurisdiction of (Law continuous in force order)
The Chief Martial Law Administrator was justified in providing in Article 2(3) of Law (Continuous in Force) Order 1977 that right to enforce fundamental rights shall be suspended.
To conclude that Martial law as enforced due to state necessity and for the welar4e of people. The Supreme Court gave decision in favor of federation.