Begum Nusrat Bhutto Case

Assignment On
Begum Nusrat Bhutto Case
Subject
Constitutional development of Pakistan
Submitted To
Prof. Dr. Bilal khan
Submitted By
Ahmad Zeeshan
Roll no. 27
Section-C (7th Semester)
2017-22
LLB.5 Year
BEGUM NUSRAT BHUTTO
VS.
CHIE OF ARMY STAFF AND FEDERATION OF PAKISTAN
(PLD 1977 SC 657)
INTRODUCTION:
General Mohammad Zia-ul-Haq declared Martial Law throughout the country, and took
over as the Chief Martial Law Administrator (CMLA). The 1973 Constitution was
suspended (not abrogated). Federal and Provincial Cabinets, National and Provincial
Assemblies were dissolved. The Prime Minister, Cabinet Members and the leading
opposition leaders were arrested and placed under "Protective custody". The President
was allowed to continue as the titular head of state and the Chief Justices of Provincial
High Courts were appointed acting Governors of their respective provinces.
FACTS OF CASE:
Following are the facts of case:
1. A Petition under Act 184 (3) of the Constitution of 1973 filed by Begum Nusrat
Bhutto challenging the detention of Mr. Zulfiqar Ali Bhutto, former prime
Minister of Pakistan and ten other leaders of the Pakistan People’s Party under
the Martial Law Order No. 12 of 1977
2. Earlier, through a Military Coup, the Government of Z.A Bhutto was overthrown
and constitution of 1973 suspended ( not abrogated) and country governed by
Law Continuance in Force Order.
3. It is stated in the petition that on the evening of the 17th of September, 1977,
the Chief of the Army Staff made a public statement, in which he leveled highly
unfair and incorrect allegations against the Pakistan People's Party Government
and the detenus by way of explaining away their arrest and detention. He also
indicated his intention of placing the detenus before Military Courts or Tribunals
for trial so as to enforce the principle of public accountability. The petition avers
that this action had been taken against the detenus in a mala fide manner, with
the ulterior purpose of preventing the Pakistan People's Party from effectively
participating in the forthcoming elections which were scheduled to be held
during the month of October, 1977.
PETITIONER’S ARGUMENTS BY YAHYA BUKHTIAR:
The Council argued:
1. Relying on Asma Jilani Case

2. Chie of Army Staff had no authority under Constitution of 1973 to impose Martial
Law in the country.
3. Such action covered by Article 06 of the Constitution of 1973, for the constitution
was still the Supreme legal instrument even Chief Martial Law Administrator
himself had not abrogated it but merely suspended it.
4. Order of detention is the violation of the Fundamental Rights of the Detenus,
particularly under Article 9, 10, 17 and 25 of constitution of Pakistan 1973.
STATE’S ARGUMENTS BY A.K. BROHI
The counsel argued:
1. Arguments based on the Judgment of Dosso’s Case

2. By proclamation of Martial Law on 5th July and new legal order came into force
and constitution of 1973 successfully suspended
3. The new Grund-norm of the country was the laws continuance in Force Order
4. The Military Coup is Meta legal or extra constitutional fact which attracts the
doctrine of “revolutionary legality” this kind of change is called revolution.
5. If all institutions of State power have accepted the existence of the new Legal
order which have been effective then all questions of legality and illegality have
to be determined within its frame work
6. As fresh elections were imminent so Martial law was only a bridge to enable the
Country to return to the path of Constitutional Rule.
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.
JUDGEMENT:
The Supreme Court dismissed the petition unanimously as not being maintainable
because of following reasons:
1. Asma Jilani case is not applied because the facts and circumstances of this very
case are different from the Asma Jilani’s Case.
2. As measures during the Doctrine of Necessity to be temporary and so CMLA took
over the administration only for a short time to arrange for fresh elections fairly
at the shortest possible and intended to hand over the Government to chosen
representatives of Peoples of Pakistan.
3. Acts otherwise illegal becomes legal if done bona fide under the Stress of
Necessity.
4. A Constitution may be abrogated or suspended in two ways one by a
Constitutional act and other by an extra constitution of Meta Legal act and
successfully suspended the constitution.
5. The Court expects that the CMLA will redeem his pledge free and fair elections
within ninety days, which must be construed in the nature of the mandate of
People of Pakistan.
6. CMLA had the power to pass Martial Law Regulations, Orders or Ordinance for
the furtherance of his objectives under the law of necessity.
7. Law Continuance in Force declares that subject to certain limitations, Pakistan is
to be governed as nearly as possible in accordance with the 1973 Constitution
and all laws for the time being in force shall continue.
8. Dosso case cannot be applied because it has been over ruled by the Court.
CONCLUSION:
Court again declared Military coup legitimate in this case on the basis of state of
necessity and welfare of people. General Mohammad Zia ul-Haq, chief of the army staff
(COAS), took control of Pakistan by proclaiming martial law, beginning the longest
period of rule by a single leader in Pakistan's history.

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Assignment On

Begum Nusrat Bhutto Case

CHIE OF ARMY STAFF AND FEDERATION OF PAKISTAN

(PLD 1977 SC 657)

Following are the facts of case:

PETITIONER’S ARGUMENTS BY YAHYA BUKHTIAR:

The Council argued:

1. Relying on Asma Jilani Case

STATE’S ARGUMENTS BY A.K. BROHI

The counsel argued:

1. Arguments based on the Judgment of Dosso’s Case

Decision of the Supreme Court

Following are the decision of the Supreme Court

ii) Kelsen’s Theory

iii) Failure to maintain Law and Order

vi) Arrangement of Fair Election

v) Jurisdiction of (Law continuous in force order)

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