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Published on: 8/13/2007
Last Visited: 12/13/2008
In such circumstances, Begum, Nusrat Bhutto, wife of Mr: Zulfikar Ali Bhutto filed directly in the Supreme Court: Constitution petition claiming in question detention of her husband, and, other leaders of the Pakistan People's Party and validity of Martial Law which is reported as the case of Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657.
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45. Mr. Abdul Mujeeb Pirzada, Mr. Abdul Hafeez Pirzada and Qazi Muhammad Jamil appearing for appellants and petitioners contended before us vociferously that in tire judgment of negum Nusrat Bhutto, this court should not have validated the actions of C:M.L.A. which were outside the Constitution and should not have given him power to amend the Constitution. instead of validating, the Court should have condoned the actions at the most as was done to the case rat Asma Jillani (supra).
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Doctrine of condonation was not attracted to the case of begun, Nusrat Bhutto as C.M.L.A. was not declared as usurper and all such acts which were outside the Constitution were treated as extra-Constitutional measures as intention was obvious that 1973 Constitution was to be revived and for that reason it was not abrogated.
47. With regard to the objection that in the case of Begum Nusrat Bhuttu power was given to C.M.L.A. as one man to amend the Constitution which should not have been done it appears that Chief of the Army Staff had taken over the governance in his own hands as one man and imposed- Martial Law.
He could have abrogated the Constitution but he did not do so and instead held in abeyance and provided in the Laws (Continuance in Force) Order, 1977 that country would 1e governed as nearly as may be in accordance with the Constitution.
His de facto status as such was later recognized by the Supreme Court in the judgment in the case of Begum Nusrat Bhutto as de jure and his actions were justified on the doctrine of State necessity and were treated as extra Constitutional measures or Constitutional deviations.
In fact he had amended the Constitution before final adjudication could be given by the Supreme Court in respect of validity of Martial Law.
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It may be mentioned that hearing in the Nusrat Bhutto's case started on 20-9-1977 and thereafter it continued from 25-9-1977 to 1-11-1977.
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In Nusrat Bhutto's case after discussing the arguments of the learned counsel, judicial notice of certain facts was taken which are enumerated at pages 701 and 702 of the report PLD 1977 SC 657.
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Mr.Syed Sharifuddin Pirzad~ contended that in the case of Nusrat Bhutto (supra) the validity of Martial Lave was upheld and the power to amend the Constitution. was conceded.
At this stage I may refer, for purposes of clarification to quell the rumour circulating since the announcement of the judgment in Nusrat Bhutto's case that the words "including the power to amend the Constitution" were not in the original draft judgment which was circulated amongst the Judges, but were added afterwards without the knowledge and consent of the other learned Judges forming the Bench.
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Mr. Justice (Rtd.) Dorab Patel who, on promulgation of PCO, refused to take oath, was a member of the Bench which decided Nusrat Bhutto's case.
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