INTERNATIONAL ISLAMIC UNIVERSITY

ISLAMABAD

Case Law
ASMA JILANI V. THE GOVERNMENT OF
PUNJAB and the others, PLD 1972 SC 139

FACULTY OF SHARI’AH AND LAW

DEPARTMENT OF LAW

BY
NAIMATULLAH KHAN JAFFAR
LL.B (Legum Baccalaureus)
Student of law at IIU’I
 ASMA JILANI V. THE GOVERNMENT OF PUNJAB
and others, PLD 1972 SC 139

Important Case decided by SC.

P L D 1972 Supreme Court 139
Present: Hamood Ur Rehman, C.J., Muhammad Yaqoob Ali, Sajjad Ahmad,
Waheed ud din Ahmad and Salah ud din Ahmad
Criminal Appeal No.19 of 1972
Miss ASMA JILANI the Appellant
Versus THE GOVERNMENT OF PUNJAB AND OTHERS
-Respondents
(On Appeal from the judgment and order of Lahore High court,
Lahore Dated the 15th January 1972, in Writ Petition No. 1538 of 1971)
Criminal Appeal No. K2 of 1972
Mrs. ZARINA GAUHAR Appellant
Versus THE PROVINCE OF SINDH AND 2 OTHERS
Respondents
(On Appeal from the judgment and order of the High Court of Sindh &
Balochistan, Karachi, dated the 18 th February 1972, in Constitutional Petition
No. 40 of 1972)

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 TABLE OF CONTENT

Contents Pages
REFERENCE TO THE CONTEXT 02
An Introduction to the Background of ASMA 04
JILANI’s case

FACTS ABOUT ASMA JILANI CASE 05

The State v. Dosso, PLD 1958 SC 533 07
Kelson’s theory 08
ARGUMENTS GIVEN BY STATE 09

ARGUMENTS GIVEN BY ASMA JILANI 09

BENCH OF SUPREME COURT 10

JUDGEMENT OF ASMA JILANI CASE 10

IMPACT OF JUDGMENT 11

ANALYSIS 12

CONCLUSION 13
References 14

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An Introduction to the Background of ASMA JILANI’s case
 Asma Jilani Case is the one of those important cases of history which
proved landmark in the constitution history of Pakistan. Two Writ
petitions were filed in Asma Jilani Case.
 First Writ petition was filed by Miss Asma Jilani in Punjab High court for
the release of her father Malik Ghulam Jilani. Mr. Malik Ghulam Jilani was
President of Awami league Punjab. and was associated with Rule 213 of the
defence of Pakistan Rules 1971, that it was necessary to prevent him from
acting in a manner prejudicial to security, public safety and defence of
Pakistan. He was taken into custody on 20th December 1971, by the order
of Governor General of the Punjab under rule 32(1),(b).On 23rd December
1971, Miss Asma Jilani, filed a case under article 98(2) b (1) of the
constitution of 1962 questioning the detention of her father.
 And then the second Writ petition was filed by Begum Zarina Gauhar, in
Sindh High Court, for the release of her husband Altaf Gauhar. Mr. Altaf
Gauhar was a civil servant who was taken into custody on 5th February
1972, in Karachi from his residence under the order passed by Martial Law
Administrator, Zone (d) under Martial Law Regulation 78. Later on he was
taken to a rest house in Sihala Police Training School and lodged there.
 Both Malik Ghulam Jilani and Mr. Altaf Gauhar were detained under Martial
Law Regulation 78 of 1971.
 This case is interconnected with Dosso Case whose decision was based on
Kelson’s theory.
 When both the Petitions were dismissed by High courts, Miss Asma Jilani
challenged both decisions to Supreme Court to decide this case as Dosso
Case.
 After the jurisdictions of court, it was declared that Pakistan has its own
doctrine based on Quran and Sunnah, and Martial Law can never be
superior to constitution and Hans’s kelson's theory is a pure theory which
is based on norms, and is not universally accepted so, it should not be
applied.

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 Precedent of DOSSO CASE was also rejected and as the source of power
was declared illegal hence Martial law Regulations were also declared
invalid and Gen. Muhammad Yahya was declared User per, ultimately the
detention was also declared illegal. It was the end of Martial Law.
 Asma Jilani case paved the way for restoration of democracy.

FACTS ABOUT ASMA JILANI CASE

The important facts of the case were describing that the imposition of Martial
Law by General Yahya Khan and assumption of the office of Chief Martial Law
Administrator by him was challenged in Asma Jilani’s case (PLD 1972 SC 139).
Some of the important facts of the case are a following;
 Detention of Malik Ghulam Jilani and Malik Altaf Gauhar
Malik Ghulam Jilani was President of Awami league Punjab whereas, Altaf
Gauhar who was the civil servant both were detained under Martial Law
Regulation No. 78 of 1971. So the detention of these persons was challenged
in Lahore and Karachi High Court respectively.
 Marshal law imposed by Yahya Khan
In the case of Miss Asma Jilani the Martial law imposed by Yahya Khan was
discussed because her father’s detention was happened due to Martial law.
The Martial Law is actually the law which relates to and arises out of a
situation in which the civil power is unable to maintain law and order and the
Military power is used to meet force and re-create conditions of peace in
which the civil power can re-assert its authority.
 Petition filed in High Courts
The two appeals were filed, one was filed by Miss Asma Jilani in Punjab High
Court for the release of her father Mr. Ghulam Jilani and the other by Begum
Zarina Gauhar in Sindh High Court for the release of her husband Mr. Altaf
Gauhar under Article 98 of the Constitution of Pakistan 1962.

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 Dismissal of Petitions
These Petitions were dismissed by the High Courts because the Courts are not
allowed to consider any Habeas Corpus Petitions under the Jurisdiction of
Courts because Order no. 3 of 1969 barred the Courts from asking any
question regarding the validity of any act done under the Martial Law
Regulation No. 78 of 1978.

 Appeal in Supreme Court of Pakistan

After the dismissal of petitions by High Court, Asma Jilani filed a petition in
Supreme Court. According to that Supreme Court stated 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 is an alien territory which had
been occupied by the said army.”
And as Pakistan has its own constitution which is superior to the martial law.
So the orders issued by General Yahya Khan were considered illegal.

 Objectives resolution
Objectives resolution on the point of “sovereignty belongs to ALLAH
ALMIGHTY” and the power exercised by the people should be according to
the rules prescribed by Him. So, the Objective Resolution pertaining Allah
almighty’s sovereignty was an important defense taken by Asma Jilani to
make her arguments strong against the Martial Law. On the behave of
fundamental principles enshrined in the Holy Quran as;
“Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to
whomsoever Thou pleasest ; and Thou takest a Nay sovereignty from
whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleaest
and Thou abasest whomsoever Thou pleasest.”
-Holy Quran, Pt. 3, Chap. III, Al 'Imran

 Doctrine of Condo-Nation
Another concept discussed was the doctrine of condo-nation which says;
Acts done by those actually in control without may be recognized as valid
or acted upon by the Courts with certain limitations, on principles of

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 necessity. The Court thus condoned. All acts and legislative measures in
accordance with the arrogated Constitution. All acts which tend to advance
or promote the good of the people.
All acts required to be done for the ordinary orderly running of the State.

The State v. Dosso, PLD 1958 SC 533

 A Dosso is a person living in Loralai District, Baluchistan.
 Dosso killed the someone in Loralai
 At that time when case file in1958Baluchistan under FATA (Federally
Administrated Tribal Area).
 Law of Baluchistan at that time is FCR, 1901.
 FCR stand FRONTIER CRIME REGULATIUON.
 They decide matter through council of elder.
 So Dosso killed the someone, the Trible authority arrested him and gave to
the council of elder.
 The council of elder Punished Dosoo. They sentenced him to death and this
sentence was given under Section 11 of FCR 1901.
 Relatives of Dosso appeal against the proceeding of council of elders.

Why relatives of Dosso file appeal in Punjab High Court?

FCR Act 1901 is against Article 5 and 7 of the Constitution of Pakistan
1956.they challenged the related provision on the basis of against equity
before law and also Right to council Embodied in Article 5 and 7 1956. Right
of Hiring of lawyer is not allowed in council of elder.
Judgment of Punjab High Court
Punjab High Court gave judgment in favor of Dosso and issue order that the
provision of FCR against article 5 and 7 of constitution of 1956.
 Federal Government of Pakistan file appeal against the judgment of Lahore
High Court in Supreme court of Pakistan.
 The Supreme Court was to decide on 13 October 1958.

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First Martial law imposed
In 1958, Pakistan face large issue regarding political instability, so first President
of Pakistan Sikandar Mirza imposed first Martial law on 7th October 1958.
Chief Marshal Administrator in 1958
Sikandar Mirza appointed the Ayub Khan Chief Martial law administrative.
Dissolve all assemblies
Sikandar Mirza dissolves National and all provincial assemblies.
Constitution of Pakistan dismissed
After imposed Martial law, constitution of 1956 dismissed and gives new
Law/order.
New legal order
11 October 1958 give ''law continuance in force'' order 1958.Therefore
enforce as a new legal order throughout the country and settle all cases
through this order.
Judgment made by Supreme Court
 At that time, if the Supreme Court gave a decision on Dosso like the Punjab
High Court, it means the supremacy of the Constitution over the FCR.
 If the court goes against the Punjab High Court, it means martial law has
been declared legal as the 1958 constitution has been abrogated.
 So Chief Justice of Pakistan Muneer is valid the Martial Law by taking help
from Kelson theory.

Kelson theory
If there is change in constitution of Government and if there is no resistance
by opposition to this change internally the people and it declared as successful
Revolution and this Revolution is recognized by international law .
Reliance upon Kelson Theory
It is very Difficult theory because it is not universally accepted . But Chief
Justice of Supreme Munir rely on this theory.

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Declared Martial law as Legal in Kelson’s theory
Chief Justice of Supreme Munir say that martial imposed in Pakistan is
necessity because country face very large politically instability.
Validity order 1958
Chief Justice of Supreme Munir valid order 1958 and abrogated the
constitution 1956. Constitution is abrogated, there is no conflict between FCR
and Articles 5 & 7 of constitution. So Supreme Court says wrong judgment
made by PUNJAB HIGH COURT. Judgment is wrong so Dosso convicted and
still remain sentenced to death the Dosso made by Council of elder because
constitution is abrogate and no conflict exist.

ARGUMENTS GIVEN BY STATE

 According to Kelson’s theory the Grundnorm can be a constitution.

 The martial law should be accepted by the constitution.
 Martial law is revolution and the acceptance of this change shows authority
of Grundnorm.
 As Kelson says in his theory that if there is no change in the constitution or
the government with meta-legal means and ways and if there is no
opposition resistant to this change internally by the people plus no
disturbances in the territorial integrity of the country, then such a change
is successful revolution and is recognized by the international law.
 Thus the Martial law coup of 1958 was legalized by the Supreme Court
under the Chief Justice ship of Justice Munir.
 The Supreme Court held the Laws (continuance in force) order 1958 was
the NEW LEGAL ORDER and the validity of laws and the correctness in the
judicial decisions would be determined according to FCR.
 The Supreme Court also held that as the 1956 constitution was abrogated
therefore FCR 1901 was still in force in accordance with the laws
(continuance in force) order, 1958.

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ARGUMENTS GIVEN BY ASMA JILANI

 Our country is not a foreign country which had been invaded by army.
 Our country is not an alien territory which had been occupied by said
army.
 Martial law does not arises in circumstances martial Law is the imposition
of direct functions by a Government, especially in response to a temporary
emergency such an invasion or major disaster or in an occupied territory,
and at that time there was no such circumstances and therefore, Yahya
khan’s Martial law is illegal.
 Kelson says the Grundnorm can be a constitution but party argues that
Pakistan has its own legal Doctrine QURAN, and the objective resolution
therefore martial law was never superior to constitution.

BENCH OF SUPREME COURT

This appeal was presented in the court of 5 members of larger bench headed
by the chief justice of Pakistan
1. C.J. Hamood ur Rahman
2. J. Muhammad Yaqoob Ali
3. J. Sajjad Ahmad
4. J. Waheed ud din Ahmad
5. J. Salah ud din Ahmad
JUDGEMENT OF ASMA JILANI CASE
 The Court held that none of the previous case law on the issue was relevant
to the case at hand, distinguishing it as a case of temporary During this
appeal it was held that the rules laid down during State vs. Dosso were
unjustified.
 It was decided in this appeal that courts gave full force to the 1962
constitution, and all laws made and acts of different civil and military
governments were lawful and legal because of the recognition granted
them by the 1962 constitution and courts.
 In this appeal it was held that the judicial role of the court was to
adjudicate on a real and present dispute brought before it by a litigant.

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 If the litigant did not want to raise an issue, it was not for the court to
answer it’s suo motu.
 In this appeal it was decided that mere involvement with the drafting of a
law does not disqualify a judge from reading the law in the light of the
claims brought forward before him.
 In this appeal, superior tribunals were found to be judges in their own
jurisdiction. In that appeal it was determined that the declaration of
martial law by General Yahya Khan was unconstitutional. While it was
again pleaded doctrine of obligation to protect General Yahya Khan's
military rule, the same was denied by judgment of this appeal.
 The judgment in the Asma Jilani case was never implemented by the
parliament and in less than five years of that judgment, the SCP reversed its
stand and revived the Doctrine of Necessity and its stance in the Dosso
case.
 Assumption of power (a phenomenon of constitutional deviation) rather
than a revolution. Consequently, the Court validated the act of
overthrowing an elected Government and assuming power by force on the
basis of doctrine of necessity.

IMPACT OF JUDGMENT
Although, the decision of the court was not completely in the
favour of Miss Asma Jilani but it had broader impacts as it proved a strong
force to weaken the concept of dictatorship in an Islamic state and it opened a
new window for the fresh air of democracy in Pakistan. The outcomes of the
decision were as follows; it was only in Miss Asma Jilani vs. Govt. of the Punjab
(PLD 1972 SC 139) that the Supreme Court (while pronouncing judgment
against the Martial Law of 1969) not only overruled State vs. Dosso but also
disregarded the law of necessity by discrediting imposition of Martial Law in
practically any situation. The decisions of the Supreme Court in the cases of
Special Reference and Dosso were brutish examples of creating a royal figure
in a republic through illogicality. The Asma Jilani case, however, was a breath
of fresh air, overruling the basic dictatorial principle of putting power over
law.
Asma Jilani's case paved the way for the restoration of democracy.
This case was followed by the interim Constitution of 1972 and then by the
permanent constitution of 1973. Due to the judicial pronouncement in the
case of Asma Jilani, Bhutto was compelled to remove the Martial law. PLD
1972 SC 139 Asma Jilani case proved that western thoughts cannot be
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imposed on non- western and Muslim country because Pakistan is an Islamic
state where sovereignty is of Allah almighty.

ANALYSIS
The constitutional change must be reinforced by a process that
make best use of harmony and secures the approval of the majority and the
minority elements within the country. The process is as important as the
outcome. The dangers inherent in adopting either of these theories to
legitimize changes to the basic structure of a legal system would be evident to
any observer of Pakistan’s constitutional history.
The trend was set in motion by the Supreme Court in the 1958
case of The State v Dosso. The Court in Dosso came to the military’s rescue by
giving its seal of approval to General Mirza’s action to dissolve parliament
contrary to the constitution. The Court relied on Kelson in support of its
decision. In fact the Court’s judgment paved the way for others. Ayub Khan did
not transfer power to the National Assembly in accordance with the 1962
Constitution but handed over power to Yahya Khan, who promptly abrogated
the constitution and imposed Martial law. His action was challenged in Asma
Jilani v The State of West Punjab. In that case; the Supreme Court overruled
Dosso as wholly unsustainable. In Asma Jilani the Court latched on to the
doctrine of necessity to legitimize Yahya Khan’s actions.
The arose either from the constitutional point of view or the
Martial Law point of view whatever was done in March 1969, either by Field
Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was
entirely without any legal foundation. In fact it was not even a revolution or a
military coup d'etat in any sense of those terms. The Military Commander did
not take over the reins of Government by force nor did he oust the
constitutional President.
Justice Hamoodar Rahman applied the doctrine to circumstances
where, in his view, ignoring it would have resulted in disastrous consequences
to the body politic and upset the social order itself; but he also said that the
doctrine cannot validate the illegal act of usurpers.
Kelson’s theory regards might as right. A theory that rewards
force at the expense of principle cannot be a right foundation for a
constitution that claims to encapsulate the sovereign will of the people. In
Asma Jilani the Court did not believe that Kelsen set out to lay down a legal

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norm. Nor did it find that Kelsen’s was a generally accepted doctrine. It was
not a rule of law and it was no more than an expression of legal theory.
These cases, with the exception of the decision in the Asma Jilani
case, show a Court that has been the weakest of the four organs of the State,
the fourth and strongest organ being the army. Even in the present Rashid
Rizvi case, as in the Asma Jilani case, the Court has placed reliance upon the
Hugo Grotius principle of “State Necessity” and the “Implied Mandate”, to
selectively disregard and legitimize certain unconstitutional actions.
The court’s decision taken on the account of Stare decisis
principle which says that; Judges are not bound by previous decisions they
have power to take new decisions in the light of the circumstances and
situation encounter by them.
The State of Pakistan was built on the base Islamic ideology and
has to be run and governed on all the basic norms of that ideology, unless the
body politic of Pakistan as a whole, God forbid, is re-constituted on an un-
Islamic pattern, which will, of course, mean total destruction of its original
concept. The Objectives Resolution is not just a conventional preface. It
embodies the spirit and the fundamental norms of the constitutional concept
of Pakistan.

CONCLUSION
To conclude, it can be stated that judgment of case of Miss Asma Jilani 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. ASMA JILANI'S case proved a landmark in the
history of Pakistani judiciary. It has proved that, our basic norm is objective
resolution not the western theories which have overlapping concepts even
they are not generally acceptable we need not to rely upon the ambiguous
concepts of these manmade laws rather than we should take our decisions in
the light of those concepts which tells us that sovereignty is only of God.
Although Miss Jilani was not succeeded but her efforts were not in vain they
opened a new gate for the freedom of self-expression as well they were
responsible for the freedom of democracy.

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 References

 Pakistan PLD, 1972 SC 139

 http://caselawyer.blogspot.com/

 Bulletin Vol. 33, No. 2, 217–242, June 2007 © 2007 Commonwealth.

 http://shahidbatalvi.wordpress.com/

 https://www.facebook.com/pages/Law-Students-Association-of-Pakistan

 http://www.island.lk/2004/06/16/opinion.html

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