Introduction
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.
Conclusion
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.
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