The State V. Dosso and Others PLD 1958 SC 533

 Fact:

Dosso was the tribal person from district Lorai in Baluchistan which is provincially administered tribal areas. He committed a murder and got arrested by tribal authorities and handed over to Loya Jirga. Dosso was convicted under the Frontier Crimes Regulation.

Relatives of Dosso challenged the decision in Lahore High Court the then West-Pakistan High Court which ruled in favour of Dosso according to Article 5 & 7 of the Constitution of 1956. Federal Government went on the Supreme Court of Pakistan which reversed the Court’s decision by referring to the Hans Kelsen theory of Legal Positivism famously the doctrine of necessity.

Hearing in High Court:

Relatives of Dosso filed a petition against his conviction by Loya Jirga in West Pakistan High Court that he is the citizen of Pakistan and he must be tried according to the Pakistani laws, not the Frontier Crimes Regulation. Article 5 of the Constitution of Pakistan 1956 states that, all citizens are equal before law and under Article 7 enjoy equal protection of the law. Dosso’s relatives also challenged the relevant provisions of Frontier Crimes Regulation considering them against the article 5 and 7 of the constitution.

Judgement:

High Court decided the case in favour of Dosso and declared that Frontier Crimes Regulation is against the 1956 Constitution. The Constitution of Pakistan ensures the equality and protection of citizens and the proceedings of Loya Jirga as null and void.

Supreme Court’s Hearing:

Federal Government of Pakistan appealed against the decision of West Pakistan High Court in the Supreme Court of Pakistan and Supreme Court set the hearing date for the case on 13 October 1958.

First Martial Law 1958:

On 7 October 1958, a harsh change came in the political history of Pakistan. President Iskander Mirza imposed first martial law of the country and made commander-in-chief of Pakistan Army General Ayub Khan as Chief Martial Law Administrator. All of the government machinery; legislatures, central and provincial were dissolved.

After three days of Martial Law, an order named Law (Continuance in Force) Order 1958 was issued by CMLA Ayub Khan. This order was a new legal order i.e. The Constitution of Pakistan 1956 and restored the jurisdiction of all courts.

Impacts of Martial Law on the Case:

Martial Law impacted the case significantly and raised some technical points. If Supreme Court maintains the decision of West Pakistan High Court, it meant that Constitution was still in force then what will be the status of Martial Law Regulations and Laws (Continuance in Force) Order, 1958 as it also challenged the Martial Law administration.

Judgement:

The Supreme Court after restoration decided the case unanimously against the decision of Lahore High Court. Supreme Court based its decision on Hans Kelsen theory of Legal Positivism.

Main Aspects of Judgement:

The judgement legitimised the martial law of 1958 as bloodless coup and a kind of peaceful revolution which was not resisted or opposed by the public implied that public is satisfied with this change or revolution. Therefore, this martial law is valid and legit. According to the Supreme Court, Laws Continuance in Force Order, 1958 is the new legal order instead of Constitution of Pakistan, 1956 which got abrogated and the validity of a law is determined by this new legal order. Furthermore, it was held that the constitution is abrogated; therefore Frontier Crimes Regulation 1901 is in force according to the Laws Continuance in Force Order 1958. That is why the decision of Loya Jirga’s decision is valid.

The question of revolutionary legality again came up before the Pakistan Supreme Court in Asma Jilani V. State of Punjab case. The Court found Yahya Khan to be a usurper. Supreme Court observed that this country was not a foreign country which had been invaded by any army with general Yahya Khan as its head, nor was it an alien territory which had been occupied by the said army. Martial Law could not have arisen in the circumstances. Paksitan had its own legal doctrine, Holy Quran and the objectives Resolution. The Martial Law was never superior to the Constitution. Supreme Court further held that Yahya Khan was neither a victor nor Pakistan was an occupied territory; and thus declared him usurper and all his actions were also declared illegal.