Asma Jalani v/s Government of Punjab PLD 1972 SC 139

FACTS OF CASE

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.

Other Facts

OTHER FACTS OF MISS ASMA JILANI V. GOVT. OF THE PUNJAB

Case Reference:

PLD 1969 LAH 786

The father of the appellant, Malik Ghulam Jilani was arrested under an Order dated 22 December 1971 issued under
rule 32 (i) (1) read with rule 213 of the Defence of Pakistan rules, 1971. Government rescinded this Order and
substituted it be another purported to have been issued under Martial Law Regulation No.78 by the Martial law
Administrator Zone “C”. The writ petition was accordingly amended and on the hearing on 15 January 1972 the
Government raised a preliminary objection that the jurisdiction of the High Court was barred in the matter by virtue
of the provisions of clause 2 of the jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the
Chief Martial Law Administrator. The High Court (Shafi-ur-Rehman, J) relying on State V. Dosso, PLD 1958 S.C
533 held that the jurisdiction of Courts (Removal of Doubts) Order, 1969 was valid and binding and as such, it had
no jurisdiction to entertain and decide the petition.
The appeals were heard and allowed by the Supreme Court declaring both the impugned orders of detention to be
void and without legal effect setting both the detenus at liberty.

On incidental matters, the Supreme Court ruled as follow:-

(i) Law itself is not a legal concept for. What is law is really a theoretical question. Conclusion of law do not depend
upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has
said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press, 1933
(page 83) “the task which many writers on Jurisprudence attempt to fulfill in defining law is a futile one”for,
according to him, “law has no definition except in a particular context.” So far as a Judge is concerned, if a
definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person
or authority legally competent to make laws and the law is capable of being enforced by the legal machinery.

(ii) The Courts in the country gave full effect to the Constitution of 1962 and adjudicated upon the rights and duties
of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent
authority to exercise that function as also enforced the laws created by that medium in a number of cases. Thus all
the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of
the recognition given to them by the new Constitution and the Courts. They had not only defactovalidity but also
acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest
jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge.

(iii) The Courts do not decide abstract hypothetical or contingent questions or given mere declaration in the air.
There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical
questions. The Court’s judicial function is to adjudicate upon a real and present controversy which is formally raised
before it by a litigant. If the litigant does not choose to raise a question, however importance it might be, it is not for
the Court to raise it suo motu.

(iv) In spite of a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents one
cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of
this rule, for law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis
does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject
is involved or some other grave injustice is likely to occur by strict adherence to the rule.

(v) The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before
them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The Superior
Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been
claimed by Supreme Court and other Courts of superior jurisdiction in all civilised countries.

(vi) Recourse could be had to the doctrine of necessity to validate and condone the illegality of certain legislations in
order to save the country from greater chaos and the citizens from further difficulties.