Bangladesh & another Vs. Md.

Salimullah and others, 1981, 35 DLR (1983) 1 (AD)

Supreme Court , Appellate Division (Civil) Present: FKMA Munim CJ Ruhul Islam J Badrul Haider Chowdhury J Shahabudin Ahmed J Chowdhury ATM Masud J Bangladesh & another.............Appellants Vs. Md. Salimullah............Respondent (In Civil Appeal No. 90 of 1981) And Bangladesh.Petitioner Vs. Hamidul Huq Chowdhury and others..............Respondents (In Civil Petition Nos. 30 & 31 of 1982) And Syed Ali...............Petitioner Vs. Director-General, BDR and others.........Respondents (In Civil Petition No. 9 of 1981) And Mofizur Rahman Majumder.Petitioner Vs. Bangladesh and others................Respondents (In Civil Petition No. 68 of 1982)

Judgment June 30, 1981. Cases Referred ToState Vs. Dosso, (1959) 11 DLR (SC) 1 = PLD 1958 (SC) 533; Province of East Pakistan Vs. Md. Mehdi Ali Khan, (1959) 11 DLR (SC) 318; PLD 1959 SC 387; Diabati Vs. Inderjit, AIR 1966 S.C. 1423; Quilter Vs. Mapleson, (1882) 9 Q.B. 672; Sat Vs. Bahal, 53 All 283; Beharilal Vs. Kashari Nandan, A.I.R. 1970 All 201; Dari Kapati Vs. Subbiah, AIR 1957 S.C. 540; AIR 1964 S.C. 489. Lawyers Involved: K. A. Bakr, Attorney-General, with A.W. Bhuiyan, Deputy Attorney-General, instructed by B. Hossain, Advocate-onRecord, and M. R. Khan, Advocate-on-Record - For the Appellants (In Civil Appeal No. 90 of 1981 & Civil Petitions Nos. 30 & 31 of 1982). Rabeya Bhuiyan, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the Petitioner (In Civil Petition No. 9 of 1981). Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the Petitioner (In Civil Petition No. 68 of 1982). Rafiqur Rahman, Senior Advocate, instructed by Zinnur Ahmed, Advocate-on-Record -For the Respondent (In Civil Appeal No.90 of 1981). Hamidul Huq Chowdhury, Senior Advocate, instructed by Md. Aftab Hossain. Advocate-on Record - For the Respondents (In Civil Petition No. 30 of 1982). Not represented - Respondents (In Civil Petition Nos. 9 of 1981). Civil Appeal No. 90 of 1981 and Civil Petitions for Special Leave to Appeal Nos. 30, 31 and 68 of 1982 and 9 of 1981. Judgment Fazle Munim CJ.- When the following civil appeals and petitions for special leave to appeal, namely, C.A. No. 90/81, C.A. 34/82, C.P. No. 30 & 31/82, C.P. No. 9/81 and C.P. 68/82 came up for hearing today, a question common to all of them arose in view of the Proclamation of Martial Law on March 24, 1982. The background against which the Proclamation was made is available from its preamble: Whereas a situation has arisen in the country in which the economic life has come to a position of collapse, the civil administration has become unable to effectively function, wanton corruption at all levels has become permissible part of life causing unbearable sufferings to the people, law and order situation has deteriorated to an alarming state seriously threatening peace, tranquillity, stability and life with dignity and bickering for power among the members of the ruling party ignoring the duty to the state and jeopardising national security and sovereignty. AND

Whereas the people of the country have been plunged into a state of extreme frustration, despair and uncertainty. AND Whereas in the greater national interest and also in the interest of national security it has become necessary to place our hard-earned country under Martial Law and the responsibility has fallen for the same upon the Armed Forces of the country as a part of their obligation towards the people and the country. Now, therefore, I, Lieutenant General Hussain Muhammad Ershad, with the help and mercy of Almighty Allah and blessings of our great patriotic people, do hereby take over and assume all and full powers of the Government of the Peoples Republic of Bangladesh with immediate effect from Wednesday, 24th March, 1982 as Chief Martial Law Administrator of the Peoples Republic of Bangladesh and do hereby declare that the whole of Bangladesh shall be under Martial Law with immediate effect. Along with assumption of powers of Chief Martial Law Administrator I do hereby assume the full command and control of all the Armed Forces of Bangladesh. In exercise of all powers enabling me in this behalf, I, Lieutenant General Hussain Muhammad Ershad do hereby further declare that:2. The operative provisions of the Proclamation which are relevant to the determination of the question before this Court are as follows: a ............................................... b................................................. c.................................................. d................................................. e. This Proclamation and the Martial Law Regulations and Orders and other Orders and Instructions made by me in pursuance thereof shall have the effect notwithstanding anything contained in any law for the time being in force. f. The Constitution of the Peoples Republic of Bangladesh shall stand suspended with immediate effect. g. All Acts, Ordinances, Presidents orders and other Orders, Proclamations, Rules, Regulation, By -laws, Notifications and other legal instruments in force on the morning of Wednesday, 24th March, 1982 shall continue to remain in force until repealed, revoked or amended. The judges of the Supreme Court including the Chief Justice, Attorney-General, Chief Election Commissioner, Election Commissioner or Commissioner, Chairman and Members of the Public Service Commission, the Comptroller and Auditor General and others in the service of the Republic will continue to function. All proceedings arising out of and in connection with Writ petitions under Article 102 of the suspended Constitution shall abate. 3. The question involved is whether petitions under Article 102 of the suspended Constitution pending before the High Court Division for judgment and civil petitions for special leave to appeal and civil appeals arising from judgments of the High Court Division passed in such petitions stand abated. 4. Here, it may be mentioned that under Article 102, the High Court Division of the Supreme Court of Bangladesh was empowered to exercise jurisdiction relating to matters as referred to therein. Its precise terms were as follows:102. (1) The High Court Divisions on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law (a) on the application of any person aggrieved, make an order(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person make an order (i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or (ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office. (3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which Article 47 applies. (4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or (b) Being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity of being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b). (5) In this article, unless the context otherwise requires, person includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which Article 117 applies. 5. The provisions of Article 102 are almost a verbatim reproduction of Article 98 of the Constitution of Pakistan, 1962 which provided similar reliefs previously available under amended section 223-A of the Government of India Act, 1935 and Article 170 of the Constitution of Pakistan, 1956. Under these provisions Provincial High Courts were empowered to issue writs, known in England as the High prerogative writs, namely, writs of mandamus, certiorari, habeas corpus, prohibition and quo warranto. During British Rule in India so far the Province of Bengal was concerned only the High Court of Judicature at Calcutta was empowered under section 45 of the Specific Relief Act, 1877 to issue these writs within the territorial original jurisdiction of that Court. 6. Leaving aside the history of exercise of this jurisdiction to issue such writs which lately the High Court Division of the Supreme Court had been exercising under the aforesaid Article 102, we, may now proceed to consider the extent of the inability or incapacity of this Court to exercise this jurisdiction and whether such incapacity is total or partial. Since the first item in todays list, namely, Civil Appeal No. 90 of 1981, has been preferred by the Government in respect of a judgment pronounced by the High Court Division under Article 102 and many other similar appeals preferred by the Government against judgments arising from such petitions are pending before this Court, we called upon the Attorney-General to address on the point at issue in order to enable us to come to the right conclusions thereon. In the provision quoted above from the Proclamation of March 24, 1982, five declarations are seen to have been made: First, the Proclamation, Regulations and Orders made thereunder will prevail over any

existing law, secondly, the Constitution of Bangladesh stands suspended from the date of the Proclamation, thirdly, all Acts, Ordinances, President's Orders, Proclamations, Rules, Regulations, By-laws, Notifications and other legal instruments in force on the 24th March, 1982 shall continue to remain in force as long as they are not repealed, revoked or amended; fourthly, the Judges of the Supreme Court including the Chief Justice, Attorney-General and others in the Service of the Republic will continue to function; and fifthly, all proceedings arising out of and in connection with Writ petitions under Article 102 of the suspended Constitution shall abate. 7. The present controversy has arisen directly out of the last-mentioned declaration which says that all proceedings arising out of and in connection with writ petitions under Article 102 of the suspended Constitution shall abate. To resolve the controversy the first thing to consider is what are the proceedings. For explaining the meaning of the expression proceedings Mr. K.A. Bakr, Attorney-General, referred to a few cases decided by the Supreme Court of Pakistan. While submitting that all pending applications under Article 102 in the High Court Division and all petitions for special leave to appeal and all appeals arising from judgments pronounced by that Division on such applications are included within the expression proceedings used in clause (g) of the Proclamation, the learned Attorney-General asserted that also those applications under Article 102 of the Constitution which have been concluded by judgments of the High Court Division but against which no leave petitions or appeals are pending before the Appellate Division of the Supreme Court are meant. The point emphasised by him is that such judgments as have not yet been complied with must also have abated. 8. According to him, therefore besides two categories of cases which can, without any controversy, be included in the term proceedings, there is another category, which, though less obvious, is also intended to be covered by the term proceedings. The first two categories, mentioned by him, are: (a) applications under Article 102 of the suspended Constitution which are pending before the High Court Division, no judgment having yet been pronounced upon them, and (b) petitions for the special leave to appeal and appeals (whether certificated or on leave granted by the Court) pending before the Appellate Division which arose from judgments of the High Court Division in applications under Article 102. The third category is constituted by the applications under Article, 102 which have been decided by the High Court Division but not yet complied with and no leave petitions or appeals therefrom are pending before the Appellate Division. 9. There is also the fourth category which includes such applications under Article 102 in which, on appeals from them, judgments were pronounced by the Appellate Division before the Proclamation of March 24, 1982. The learned Attorney-General conceded that the expression proceedings will not apply to them. 10. So far as the first category is concerned, the applicability of the provisions relating to abatement as contained in clause (g) of the Proclamation to them has not been seriously disputed by the other learned Counsels who appeared and made their submissions. No serious controversy was raised against the third category. The dispute has, therefore, been narrowed down to a short compass; that is, category (b) as mentioned above. In support of his contention that the applications under Article 102 in which judgments have been pronounced by the High Court Division against which petitions for special leave to appeal or appeals (whether certificated or on leave granted by this Court) are pending before the Appellate Division shall abate the learned Attorney-General referred to the following provisions under clause (7) of Article II of the Laws Continuance in Force, Order (1 of 1958) in the case of State Vs. Dosso, (1959) 11 DLR (SC) 1= PLD 1958 (SC) 533 All orders and judgments made and given by the Supreme Court between the Proc lamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith. He then referred to following observations by Munir, CJ of the Supreme Court of PakistanAnalyzed, this provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or

any one other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered clause (4) of Article II, or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only, the application for the writ would abate but also the proceedings which require the enforcement of that writ. The abatement must therefore be held to govern all those writs which were the subject-matter of appeal before the Supreme Court either on certificate or by special leave. No judgment, order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. I am, therefore, of the view that the writs issued by the High Court in these cases are not final writs, and that all proceedings in connection with such writs, including the original applications in the High Court, have abated. 11. It appears that in a subsequent case decided by the same Court, namely, Province of East Pakistan Vs. Md. Mehdi Ali Khan, (1959)11 DLR (SC) 318 ; PLD 1959 SC 387, Munir, CJ got another occasion to interpret the aforesaid provisions of clause (7) of Article II of the Laws Continuance in Force, 1958. In reiterating his earlier statements the learned Chief Justice observed: A plain reading of clause (7) of Ar ticle 2 would show that that clause divides writs into two categories, i.e., (1) writs provided for by this Order and (2) writs not so provided for. In the case of writs falling under the first category the Order declares that such writs may be issued by the Supreme Court as well as by the High Courts, and that the writs of this class already issued and the orders for such writs already made are valid whether the orders were made by the Supreme Court or by the High Courts. As regards the writs falling under the second category the clause says that if such writs were issued by the Supreme Court after the Proclamation and before the Order, a mere matter of three days, the writs and orders for them would be valid and binding on all Courts and authorities in Pakistan but that if they were not issued or made by the Supreme Court, e.g., where they were issued or made by the High Court, they are not to take effect, and that all applications for such writs and all proceedings taken in respect such profits shall abate. 12. Comparing the provisions of clause (7) of Article II of the Laws Continuance in Force Order, 1958 which provided for abatement of writ petitions and those of clause (g) of the Proclamation of March 24, 1982, it appears that there are differences between them. While the former had express ly provided that no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all application and proceedings in respect of any writ which is not so provided for shall abate forthwith, t he latter is not so express and is more restrained. From the differences which are thus seen to exist between the provision for abatement of writ petitions and judgments arising therefrom as in clause (7) of Article II of the Laws Continuance in Force Order, 1958 and those of clause (g) of the Proclamation of March 24, 1982 there will be differences in their applications to the writ petitions in the various stages through which they pass before their final implementation. Apart from differences in language employed in the two sets of laws as aforesaid, there also existed differences as to the method of enforcement of a judgment pronounced after hearing a writ petition or an appeal therefrom Previous practice was that when judgments granting declarations sought for in a writ petition were pronounced they were enforced by issuing the formal order of the Court in the form of a writ. This practice has been discontinued after the emergence of Bangladesh. What is done at present is that the declaration or declarations sought for in a writ petition are made in the judgment itself and so far as its enforcement is concerned it is left to the authority concerned against which it has been granted to implement it. If the enforcement or implementation of the declaration is not made by the authority concerned, contempt proceedings may be drawn up but that is a different matter. The resulting position is that when a judgment had already been pronounced by the High Court Division, no proceedings could be said to have been pending before the High Court Division so that it may be said that it has abated. Similarly, when the judgment has been pronounced by the Appellate Division granting the prayer sought for in a writ petition; nothing remains before it so as to abate in terms of the aforesaid provisions of clause (g) of the Proclamation of March 24, 1982. If some steps remained to be taken after judgment had been pronounced in a writ petition or in an appeal therefrom under the Constitution of Pakistan, 1956, as observed by Munir, CJ in Dosso's and Mehdi Ali Khan's cases, it remained by virtue of the express provisions of clause (7) of Article II of the laws Continuance in Force Order, 1958 and the practice of issuing the orders of the Court in the form of writs after judgments had been pronounced on a writ petition or in an appeal therefrom. Such situation is not available so as far as the provisions of clause (g) of the aforesaid Proclamation and the practice of this Court are concerned. As a consequence, it is clear that the judgments

pronounced by the High Court Division in applications under Article 102, from which no leave petitions or appeals are pending before the Appellate Division and also judgments pronounced by the Appellate Division before March 24, 1982 have not abated: The next question was whether the judgment of High Court Division from which a leave petition or an appeal was pending before the Appellate Division will abate. 13. An appeal is the continuation of a suit or an application filed before the trial court or the court of origin and it was, therefore, urged that when an appeal stands abated by any express provision of law, the judgment against which such appeal was preferred will abate. 14. This was the only point upon which the learned Attorney-General put repeated emphasis. He asserted that when a petition for special leave to appeal or an appeal is pending before this Court having arisen from the judgment on a writ petition, with the abatement of such petition or appeal as laid down in clause (g) of the Proclamation, the judgment from which it arose also abated and consequently it was unenforceable. 15. Mr. Hamidul Huq Chowdhury who was to appear in one of the leave petitions in the daily list submitted that the express terms of the Proclamation which provided for abatement of proceedings arising out of and in connection with writ petitions under Article 102 should be strictly construed. For this Proclamation, unlike the previous Proclamations of Martial law in Pakistan in 1958 and Bangladesh in 1975 speak of and referred to unbearable sufferings of the people. It cannot, therefore, be said that it wants to restrict their existing legal rights. Moreover there were certain express provisions in the Proclamation itself and the Proclamation (First Amendment) Order, 1982 which indicate that such rights have been kept alive. Referring to the expressions other legal instruments in force as occur in clause (g) of the Proclamation, he submitted that their continuity has been expressly ensured. Judgments produced by the High Court Division or the Appellate Division before the 24th March, 1982 according to him, being such legal instruments, they also continued with full force, as provided in the Proclamation. The learned Counsel then referred to the following provisions in Article 4 of the Proclamation (First Amendment) Order, 1982. 4. (1) The High Court Division of the Supreme Court shall have such juris diction as is or may be conferred on it by law. (2) The Appellate Division of the Supreme Court shall have such jurisdiction as it has immediately before this Proclamation. (3) In respect of issue and execution of processes, review of judgments of orders, making of rules, punishment for contempt of courts, superintendence and control over subordinate courts, transfer of cases and appointment of staff the Supreme Court or its Division shall have the same powers as it or they had immediately before this Proclamation. (4) The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division shall be binding on all courts, other than Martial Law Tribunals or Courts or Administrative Tribunals. (5) All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. 16. So far as any judgment of the High Court Division or the Appellate Division is concerned what is done by the Court is to examine the law and declare what that law is and secondly, whether the impugned action or decision of the authority concerned against which the application under Article 102 was preferred conformed to the law. What is the law, or to be more precise, what is the meaning of the law whose violation has been alleged requires the determination of the quality of the action or decision impugned before the Court. After the Court gives the declaration nothing remains to be done. It is then up to the authority concerned to enforce or implement the declaration given by the Court. The learned Counsel, however, submitted that all Acts, Ordinances, President's Orders and other Orders, Proclamations, Rules Regulations, By-laws, Notifications, etc. which were in existence on March 24, 1982 were continued by the Proclamation. If they were to remain in force and the law declared by the

Appellate Division and the High Court Division were declared to be binding upon the Courts mentioned therein and all authorities, executive and judicial, required to act in aid of the Supreme Court, the only conclusion which should be arrived at is that the judgments pronounced by either the Appellate Division or the High Court Division in the latter case only if no leave petition or appeal is pending therefrom before the Appellate Division did not abate. 17. Mr. Rafiqur Rahman, Mr. Faquee Shahabuddin and Mrs. Rabeya Bhuiyen who rose to make submissions on the point under consideration by the Court, more or less, spoke in support of the contentions of Mr. Hamidul Huq Chowdhury. 18. As far as it goes there seems to be no flaw in the logic that the law declared by either the High Court Division or the Appellate Division, being binding upon all Courts subordinate to them and it being incumbent upon all authorities, Executive and Judicial, to act in aid of the Supreme Court, will remain effective and be enforceable under the new dispensation. Such effectiveness or enforceability is not, however, available when appeals are pending from the judgments of the High Court Division, they become subject to the decision of the Appellate Division. Being continuation of the writ petition filed originally in the High Court Division such judgments must also be deemed to have abated when appeals pending therefrom before the Appellate Division are held to have abated. To hold otherwise would amount to reversing the existing process. It might be argued that the mere granting of leave to appeal by the Appellate Division does not, in the absence of a stay order, take away the effectiveness of the judgments pronounced by the High Court Division, but it is a rare occasion when the Appellate Division refuses to grant stay though it has granted leave to appeal. 19. There may be some controversy as to when an appeal before the Appellate Division will be said to have been pending. As already mentioned, appeals before the Appellate Division rise either on special leave granted by the Appellate Division on petition moved before it by an aggrieved party or on certificate granted by the High Court Division. If, on the granting of leave by the Appellate Division, no requisites payable by the petitioner according to the provisions of law have been put in the petition shall abate but with its abatement the judgment of the High Court Division against which it was filed shall not abate. Similarly, when a certificate as provided by the suspended Constitution was granted by the High Court Division but no petition of appeal was preferred the certificate will be infructuous, but this will not, however, lead to the abatement of the judgment of the High Court Division in which the certificate was granted. 20. I have my views on the extent of abatement of the writ petitions and petitions for special leave to appeal and civil appeals pending before the High Court Division and this Division respectively. As separate judgments have been given by Ruhul Islam, Badrul Haider Chowdhury and Shahabuddin Ahmed, JJ, agreeing with my views generally but each having independent reasoning of their own,' T propose to give the formal order at the end of their judgments which will be the order of the Court. Ruhul Islam J.- I had the advantage of going though the copy of the judgment prepared by the learned Chief Justice, and while agreeing with his conclusions I think I should give my reasons in a separate judgment. The, question has narrowed down to this, as to whether clause (g) of the Proclamation of Martial Law dated March 24, 1982 while abating the special leave petitions and the appeal, either by special leave or by certificate, pending for hearing before this Bench, abated the respective writ petitions under Article 102 of the suspended Constitution. The relevant portion of clause (g) of the Proclamation reads as under:All proceedings arising out of and in connection with the writ petitions under Article 102 of the suspended Constitution shall abate." 22. As per clause (f) the Constitution of the People's Republic of Bangladesh stood suspended with immediate effect by the Proclamation. By Proclamation Order No.1 of 1982 the following provision was added to clause (f): Subject to this Proclamation and the Martial Law Regulations and Orders and other Orders made, from time to time, by the Chief Martial Law Administrator, People's Republic of Bangladesh shall be governed in accordance with the provisions laid down in the Schedule to this Proclamation.

Clause (j) of the Proclamation provides as follows:Subject to the provisions aforesaid all Courts, including Supreme Court, in existence immediately before this proclamation shall continue to function but subject to the provisions of Martial Law Regulations, Orders or other Orders made by me. 23. Article 101 of the Constitution provides the jurisdictions of the High Court Division. According to this Article, the High Court Division shall have such original, appellate and other jurisdiction, powers and functions as are or may be conferred on it by the Constitution or any other law. Clause (j) of the Proclamation allowed the Courts, including the Supreme Court in existence to function, but subject to the Proclamation. Article 102 enumerates the powers of the High Court Division while exercising its writ jurisdiction. By sub-article (1) of Article 102 of the Constitution the High Court Division of the Supreme Court has been given the power, on the application of any person aggrieved, to give such directions or orders to any person or authority, including any person performing the function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Part III of the suspended Constitution. Sub-article (2) contains the mode how the power should be exercised by the High Court Division. Sub-article (1) of Article 44 provides the right to move the High Court Division in accordance with sub-article (1) of Article 102, for the enforcement of the rights conferred and guaranteed by Part III of the suspended Constitution. 24. With the Proclamation of March 24, 1982 declaring that the whole of Bangladesh shall be under Martial Law and suspending the Constitution of the People's Republic of Bangladesh with immediate effect, both the Divisions of the Supreme Court, namely, the Appellate Division and High Court Division ceased to derive any power from the Constitution. Sub-clause (1) of clause (4) of Proclamation Order No.1 of 1982 provides that the High Court Division of the Supreme Court shall have such jurisdiction as is or may be conferred on it by law. Sub-clause (2) of clause (4) provides that the Appellate Division of the Supreme Court shall have such jurisdiction as it had immediately before this Proclamation. Sub-clause (3) of clause (4) enumerates the power of the Supreme Court with the two Divisions. According to this sub-clause the Supreme Court with its two Divisions, namely, the High Court Division and Appellate Division shall have the same powers as it or they had immediately before the Proclamation, that is, in respect of the issue and execution of processes, review of judgments or orders, making of rules, punishment for contempt of courts, superintendence and control over subordinate courts, transfer of cases and appointment of staff. Sub-clause (4) provides that the law declared by the Appellate Division shall be binding on the High Court Divisions and the law declared by either Division shall be binding on all courts, other than Martial Law Tribunals or Courts or Administrative Tribunals. Sub-clause (5) provides that all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. 25. Sub-clauses (1) and (2) show that both the Divisions of the Supreme Court have been allowed to function and exercise all the jurisdictions. However, the High Court Division shall have such jurisdiction as is or may be conferred on it by law, and, the Appellate Division shall have, such jurisdiction as it has immediately before the Proclamation. The language of sub-clauses (1) and (2) of clause (4) clearly shows that the High Court Division shall have such jurisdiction as is or may be conferred on it by law. The exp ression by law does not include the suspended Constitution, whereas, the Appellate Division of the Supreme Court shall have such jurisdiction as it had immediately before the Proclamation. The expression such jurisdiction includes jurisdiction conferred under Article 103 of the suspended Constitution. Notwithstanding the suspension of the Constitution by the Proclamation the Appellate Division continues to exercise all the jurisdiction exercised by it immediately before the Proclamation. The Appellate Division shall have jurisdiction to hear and determine appeals from the judgments, decrees, orders or sentences of the High Court Division. The respective jurisdiction as being now exercised by the High Court Division and the Appellate Division shows the difference, because the High Court Division has completely ceased to exercise any jurisdiction conferred upon it under Articles 44 and 102 of the suspended Constitution, but the Appellate Division continues to exercise the jurisdiction conferred under Article 103 of the suspended Constitution. 26. Appeals from the judgments and orders of the High Court Division made under Article 102, come to the Appellate Division by two methods: by certificate granted by the High Court Division that the case involves a substantial question of law as to the interpretation of the Constitution; and by special leave to appeal granted by this Court.

27. Order XII of the Supreme Court (Appellate Division) Rules deals with civil appeals under sub-article (1) of Article 103 of the suspended Constitute n. Order XII provides that where a certificate has been granted by the High Court Division under Article 103, sub-article (2), the party obtaining the certificate is required to file petition of appeal in the Appellate Division within 30 days from the date of the certificate. Order XIII contains the provision for filing petitions for special leave to appeal in civil proceedings. Where special leave to appeal is granted, the Court is required to give such directions, as deemed fit, for making deposit as security for the costs of the respondent, as may be awarded at the disposal of the appeal. The Rules provide that no appeal by special leave shall be admitted to a hearing unless the amount of security has been first deposited, and in case of default the leave is rescinded. From Orders XII and XIII it appears that mere granting of certificate does not automatically make the judgment of the High Court Division the subject matter of appeal before the Appellate Division. Similarly, mere granting of leave does not make the judgment of the High Court Division the subject matter of appeal pending before the Appellate Division, unless the requirements of the Rules are complied with. Once the appeal either by certificate or by special leave becomes pending, the proceedings before the High Court Division becomes sub judice. When the appeal arises from a judgment on an application under Article 102 of the Constitution the judgment along with the writ application becomes sub judice. In such a case finality of the judgment of the High Court Division, in spite of conclusion of the proceeding, remains subject to the decision of the Appellate Division in appeal. On this point it appears, there is divergence of opinion. According to one view, the appeal being a Constitution of the original proceeding it must be held that the original proceeding is pending subject to the decision in the appeal. The other view is that the judgment of the High Court Division, notwithstanding the pendency of the appeal therefrom before the Appellate Division, either by certificate or by special leave, is concluded, and finality of the judgment is not dependent on the result of the appeal. It has already been stated above that mere filing of a special leave petition or granting of leave thereon; or granting of certificate, does not make the judgment of High Court Division sub judice in the appeal, and to, a pending matter. 28. The learned Attorney General submitted that with the abatement of petitions for special leave and appeals by special leave arising out of applications under Article 102 of the Constitution, the judgments challenged therein along with the original applications under Article 102 of the Constitution shall also abate. According to the learned Attorney General the writ applications became sub judice before the Appellate Division on the filing of the petitions for special leave. He, however, could not forcefully argue that the writ applications become sub judice pending hearing of the special leave petitions. Special leave petitions cannot be considered as & proceeding pending in the Appellate Division until it is heard and leave is granted and the matter transforms into an appeal. In my opinion the provision of abatement as contained in clause (g) of the Proclamation dated March 24, 1982 abates the pending special leave petitions and such abatement of the special leave petitions does not affect the judgments of the High Court Division which were challenged in the special leave petitions. It is true that a special leave petition after it is lodged complying with the requirements of the Rules, it is numbered. It is so done for the convenience of its listing for hearing by the Court. If leave is refused by the Court the petition is dismissed, but if leave is granted, it is not registered as an appeal as a matter of course. An appeal arising from special leave petition is registered, only after the requisites, including the security deposits, are put in by the petitioner as provided under the Rules. In case of default in putting in the requisites, leave granted by the Appellate Division is rescinded and the petition is dismissed. In view of the procedure as laid down in the Rule I find it difficult to accept the argument of the learned Attorney General that with the abatement of special leave petition the judgment of the High Court Division also abates. 29. Mr. Hamidul Huq Chowdhury, the learned Counsel appearing for the respondent in some of the special leave petitions preferred by the Government, submitted that a judgment of the High Court Division even after certificate is granted by the High Court Division or special leave is granted by the Appellate Division, remains independent and as such continues to be executable, or the directions given therein are required to be complied with by the party concerned, unless the operation of the judgment order is stayed by the Appellate Division. There is no automatic stay of operation of the judgment of the High Court Division in either of the cases. In support of his arguments the learned Counsel referred to Order XLV, of the Code of Civil Procedure. With reference to Rule13 he submitted that notwithstanding granting of certificate by the High Court Division, the decree shall be unconditionally executed unless the Court otherwise directs. According to the learned Counsel granting of certificate does not take away the finality of the judgment, because, if the winning party so advised is entitled to execute the decree. So, the judgment, according to him, in spite of granting of certificate does not become a pending matter. This proposition is equally applicable in the case of certificate granted under Article I03(2)(a) of the Constitution of 1972 by High Court Division, after giving judgment on a writ application, because, the judgment retains its finality, and the direction, if given

therein, must be complied with. The learned Counsel further submitted that similarly in a case where leave has been granted by the Appellate Division, the operation of the judgment under appeal does not become automatically stayed, and the party in whose favour the decision has been given, is entitled to enforce the judgment and order made in his favour by the High Court Division. 30. On the question of the judgment of the High Court Division becoming a pending matter when appeal by certificate granted by the High Court Division, or appeal by special leave granted by the Appellate Division, are pending before the Court, the learned Attorney General relied upon two decisions of the Supreme Court of Pakistan, in the case of State Vs. Dosso and another, 1959 11 DLR (SC) 1; PLD 1958 SC (Pak) 533; and in the case of Province of East Pakistan Vs. Mehdi Ali Khan and others, (1959) 11 DLR (SC) 318 ; PLD 1959 SC (Pak) 387. The learned Attorney General particularly relied on the opinion expressed by Munir, CJ that appeal pending in the Supreme Court is a continuation of the proceeding before the High Court out of which the appeal arises; and when the appeal abates by operation of clause (7) of Article 2 of Laws (Continuance in Force) Order, 1958, the corresponding writ petition under Article 170 of the Constitution of Pakistan, 1956 also abates. Mr. Hamidul Huq Chowdhury vehemently criticized the propriety and soundness of this view. According to him, in the absence of any stay order from the Supreme Court the judgment of the High Court Division having reached the finality, is still executable. According to him, the decision of the Supreme Court supporting this proposition is erroneous, and the same cannot be referred to as an authority for the present discussion. The decisions of the Supreme Court referred to above, were given almost in a similar situation, that is after declaration of Martial Law throughout Pakistan, abrogation of the Constitution and Promulgation of Laws (Continuance in Force) Order, 1958 by the President. 31. Clause (7) of Article 2 of Laws (Continuance in Force) Order, 1958 reads as under: (7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings is respect of any writ which is not so provided for shall abate forthwith. 32. The relevant portion of clause (7) has been underlined by me. The provision relates to the applications and proceedings in respect of writ petitions seeking enforcement of fundamental rights guaranteed under the Constitution of 1956. The language of this provision is very clear: that all applications and proceedings in respect of any writ which is not so provided for in the Order shall abate forthwith. Of course, the provision quoted above is operative only in the matter of writ applications seeking to enforce any of the fundamental rights, but it is not referable to writs other than those seeking enforcement of fundamental rights. 33. In State Vs. Dosso several criminal appeals pending before the Supreme Court were disposed of by applying the provision of abatement as contained in clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958. The criminal appeals preferred by the State arose out of orders made either, by the Lahore Bench or by the Peshawar Bench of the High Court of West Pakistan on writ petitions filed under Article 170 of the Constitution of 1956 successfully calling in question the orders referring cases to the Council of Elders or convictions recorded under section 11 of the Frontier Crime Regulation Act, III of 1901. One of the appeals was by certificate granted by the High Court Bench while the others were by special leave granted by the Supreme Court. The question was raised in all the appeals, whether the writ issued by the High Court abated under clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958 promulgated by the President on October 10, 1958. Munir, CJ. after discussing the arguments advanced by the learned Counsels appearing for the parties expressed the opinion that the writs issued but which are the either sub judice before the Supreme Court or require enforcement, were hit by clause (7) of Article 2 of the Order. The learned Chief Justice expressed his opinion as follows: This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ. The abatement must, therefore, be held to govern all those writs which were the subjectmatter of appeal before the Supreme Court either on certificate or by special leave. No judgment order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order, or writ. I am, therefore, of the view that the writs issued by the High Court in these cases are

not final writs, and that all proceedings in connection with such writs including the original applications in the High Court, have abated. 34. The provision of abatement as contained in Article 2 (7) of the Laws (Continuance in Force) Order, 1958 again came for consideration by the Supreme Court subsequently in the case of Province of East Pakistan Vs. Md. Mehdi Ali Khan and others. Their Lordships were deciding eight appeals which arose from the judgment of the High Court of East Pakistan at Dacca making absolute rules nisi requiring the Government of East Pakistan to show cause why writs of mandamus should not issue directing them to cancel, withdraw and rescind certain notifications issued under section 3 of the East Bengal State Acquisition and Tenancy Act, 1950. Munir, CJ. delivered the majority judgment. The learned Chief Justice narrated the background of the appeals. A large number of applications for writs were made by the persons affected by the notification praying for writs of mandamus against the Government on the ground, inter alia, that section 3 of the Act which gave unrestricted power to the Government and the said power being ex facie discriminatory, offended against Article 5 of the Constitution of 1956 and was for that reason void and inoperative. In eight of these applications, viz, the cases out of which the appeals arose, the interest acquired by the Government related to property held in waqf and in them the notifications were attacked on the further ground that they were void by reason of the provision under which they had been issued being in conflict with Article 18 of the Constitution. The applications having been dismissed, 59 appeals were brought to the Supreme Court from the judgment of the High Court. All the appeals excepting the eight in which the rent-receiving interest acquired by the Government related to waqf property were dismissed. The eight appeals by the Mutwallis of the Waqf Estates were accepted to the extent that petitions giving rise to the appeals were remitted to the High Court for determining the question as to what extent the dedications were involved in them came within the definition of religious institution and were accordingly protected by Article 18 of the Constitution and for gran ting such relief as the Court in its discretion may consider to be appropriate in the circumstances. The High Court took the view that the question whether Article 18 of the Constitution protected the dedications which were found valid waqf under the Muslim law had been decided by the Supreme Court and that the only question remitted to the High Court for decision was whether the dedication in fact amounted to waqf. The ultimate result was that writs of mandamus were issued directing the Government of East Pakistan to withdraw the impugned notifications. The High Court, however, granted certificate for appealing to the Supreme Court. On the basis of the certificate granted by the High Court the eight appeals of the Government were pending before the Supreme Court when the Laws (Continuance in Force) Order, 1958 came into operation. At the hearing of the appeals one of the question: for consideration, in view of Laws (Continuance in Force) Order, 1958, was whether the applications for writs together with all subsequent proceeding including the order of remand, have abated under Article 2(7) of the Laws (Continuance in Force) Order, 1958. While considering the question their Lordships examined whether there were sufficient grounds for reviewing or revising the view taken by the Court in Dossos case Their Lordships formulated two questions: (1) Whether the present appeals are distinguishable from the decision of this Court in Dosso's case; and (2) Whether that decision, in view of the more comprehensive arguments addressed in the present case, requires revision. On consideration of the learned arguments advanced by some eminent Counsels in that case, Munir, CJ did not consider it necessary to revise his opinion. He, inter alia, observed as follows:The Court held that after the coming into force of that Order no law could be declared or held to be void merely because it came into conflict with a fundamental right and that all pending applications for writs in which a law by reason of Part II of the Constitution had to be found to be void in order to grant the relief prayed for by a party had abated by force of clause (7) of Article 2 of that Order. The Court arrived at this result by reading Article 2(4) with Article 4(1) of the Order and by holding that after the promulgation of that Order Part II of the later Constitution had ceased to be available to adjudge the invalidity of the laws that were in force immediately before the Proclamation. The matter had not then been so fully and ably argued as now, but despite the ingenious and at times farfetched argument addressed I am convinced more than before that case was rightly decided. A plain reading of clause (7) of Article 2 would show that clause divides writs into two categories, i.e. (1) writs provided for by this Order, and (2)

writs not so provided for. In the case of writs falling under the first category the Order declares that such writs may be issued by the Supreme Court as well as by the High Courts, and that the writs of this class already issued and the orders for such writs already made are valid whether the orders were made by the Supreme Court or by the High Court. As regards the writs falling under the second category, the clause says that if such writs were issued by the Supreme Court after the Proclamation and before the Order, a mere matter of three days, the writs and orders for them would be valid and binding on all Courts and authorities in Pakistan but that if they were not issued or made by the Supreme Court, namely, where they were issued or made by the High Court, they are not to take effect, and that all applications for such writs and all proceedings taken in respect of such writs shall abate. 35. In giving the dissenting view Cornelius J, wrote an elaborate judgment purporting to traverse the reasons given by Munir, CJ. His Lordship concluded in the following term: This conclusion confirms me in the belief I expressed in the Dosso case; that it cannot have been the intention or Article 2(7) of the Order to extinguish every pending proceeding which may have been commenced before the Proclamation to obtain relief against a statute or any executive action on the basis of a Fundamental Right. The provision in Article 2(7) that writs not so provided for shall abate forthwith still appear to me reasonably applicable only to such proceedings as might constitute a threat to the supremacy of the new regime. Such proceedings might be motions for writs directed to a Martial Law authority and these are expressly excluded by Article 2(4). Such motions commenced pre-Proclamation against an authority since replaced by a Martial Law authority are treated off in Article 2(5), and it is significant that they are not abruptly extinguished. Instead the direction given is that the Court may furnish the Martial Law authority with an advisory opinion, I am inclined to read that as a contraindication to the existence of any intention to extinguish any pending proceedings, merely because they seek relief on ground of a Fundamental Right. His Lordship finally concludedFor these reason, I would hold that the proceedings for writs out of which the present appeals arise did not abate by the operation of Article 2(7) of the Laws (Continuance in Force) Order, 1958. 36. S. A. Rahman J. Concurring with the opinion of Munir, CJ, expressed himself in the following terms: "With the abrogation of the Constitution, on the promulgation of the President's Proclamation, the Fundamental Rights disappeared from the field containing the consequence that laws existing on the Statute Book were given a fresh lease of life by the Laws (Continuance in Force) Order, 1958 in their original condition and those of the provisions which were inconsistent with the Fun- have been revived in their full vigour. The East Bengal State Acquisition and Tenancy Act, 1950 has undergone a similar change. Because of the appeals pending in this Court, the subject-matter of this dispute has become sub-judice and in my humble judgment, therefore, the appeals are not taken out of the principle laid down in Dosso's case and ought to be rejected as having abated." 37. It appears to me that the opinion of Cornelius J, is more based on doubt than on cogent reason. With great respect to his Lordship I find it difficult to agree with his view that the provision in Article 2(7) is reasonably applicable only to such proceedings as might constitute a threat to the supremacy of the new regime. To me it appears that the view expressed by Munir, CJ on the question of application of Article 2(7) of the Order is based on more cogent reasons. It may be mentioned that in Dosso's case, Cornelius, J, only expressed doubt but did not give any clear opinion, I fully endorse the proposition laid down by the Supreme Court of Pakistan in the above noted cases that when an appeal either by certificate or by special leave becomes pending before the Supreme Court, the judgment under appeal along with the writ application also becomes sub-judice; and abatement of the appeal taken place by operation of the constitutional law, abates the judgment along with the writ application as well. To say that the writ application along with the judgment does not become sub-judice, would amount to ignoring the actual fact. Because, in actual practice the appellate court exercises all the powers of the original court and if necessary, in an appropriate case the writ application becomes the subject matter of examination. For an example, determination of the objection raising the question of locus standi of the petitioner seeking relief by invoking the writ jurisdiction, examination of the writ application becomes necessary. And very often on examining the writ application the objection is adjudicated.

38. The expressions proceedings arising out of and in connection with the writ petitions under Article 102 of the suspended Constitution cannot be construed to read that writ petitions pending before the High Court Division are not attracted by the abatement. Similarly those expressions cannot be construed to support the proposition that the appeals pending before the Supreme Court are not affected by the provision of abatement. It cannot be disputed that the writ applications in connection of which appeals either by certificate or by special leave are pending before this Court, have become sub judice in spite of the judgments of the High Court Division reaching finality. This finality is subject to the decision of this Court in appeal. If the appeal is dismissed, the relevant judgment of the High Court Division retains its finality and consequently the writ application concerned is also finally disposed of. But if the appeal is allowed, then the judgment of the High Court Division is either set aside or modified, and accordingly, the writ application also stands finally disposed. 39. Application of the provision of abatement as contained in clause (g) of the Proclamation should be considered keeping in view clause (f) of the Proclamation by which the Constitution of the Peoples Republic of Bangladesh stood suspended with immediate effect. If clauses (f) and (g) are read together, the object of framing clause (g) becomes clear, that is, the scope of abatement. On the suspension of the Constitution the High Court Division ceased to have the writ jurisdiction, and consequently all writ applications, pending for hearing abated. On this there is no controversy but controversy centres round the question, whether pendency of the appeal from the judgment of the High Court Division on a writ application makes the writ application sub-judice. If it is sub-judice, it is hit by the provision of abatement, if it is not, application of provision of abatement does not arise. It has already been discussed and shown above that with the pendency of appeal either by certificate or by special leave the proceedings arising from presentation of the writ application before the High Court Division, becomes sub-judice, and such proceedings is hit by the provision of abatement under clause (g). 40. I do not find any good reason in support of the view that once a writ application is disposed of by a judgment, no matter whether appeal therefrom is pending or not should be treated as completely disposed of. This Court hearing appeal arising from the judgment of the High Court Division exercises all the powers of the High Court as contemplated under the Code of Civil Procedure. In a fit case the Court is competent to examine the writ application in the course of hearing of appeal to see maintainability of the writ application of locus standi of the petitioner to move the same. 41. This question can be examined from another aspect, after special leave is granted by this Court on a petition filed by a party against whom the judgment of the High Court Division under Article 102 has been rendered the judgment under appeal becomes sub-judice before the Appellate Division, and its enforcement practically remains suspended not specifically stayed by an order of this Court. The change in the jurisdiction of High Court due to suspension of the Constitution undoubtedly affected the proceedings arising out of and in connection with the writ petitions under Article 102 of the Constitution. Similarly, suspension of the Constitution followed by promulgation of the provision of abatement in clause (g) of the Proclamation, also affected the jurisdiction of this Court hearing appeals arising out of writ petitions. I find it difficult to accept the argument that the expression all pro ceedings against, out of and in connection with the writ petitions under Article 102 in clause (g) of the Proclamation does not relate to the proceedings in the High Court Division when appeal arising therefrom is pending in this Court. According to the Rules of procedure, with the pendency of appeal from a judgment of the High Court Division under Article 102, the judgment under appeal becomes sub-judice, and its finality is subject to the decision of the Appellate Division in appeal, and at the hearing of the appeal the entire proceedings before the High Court Division under Article 102 become open. So, in this process the writ application also becomes sub-judice. Finality of the proceedings is dependent on the decision in the appeal. 42. When the appeal is pending before the Appellate Division from the judgment of the High Court Division the judgment cannot be treated as a transaction past and closed. To show the nature and character of the finality of the judgment of the High Court Division from which appeal is pending before the Appellate Division, reference has been made to sub-rule (1) of rule 13, Order XLV of the Code of Civil Procedure to show that the sub-rule provides that notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. The provision as contained in sub-rule (1) of rule 13 is qualified by the following provision as contained in sub-rule (2), which provides that the Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,-

(a) impound any movable property in dispute or any part thereof, or (b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Appellate Division may make on the appeal, or (c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from or of any other which Appellate Division may make on the appeal, or (d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise. 43. The above provisions clearly show that the judgments and decrees of the High Court Division during pendency of the appeals before the Appellate Division, although they became final on the disposal of the proceedings before the High Court Division, their finality is subject to the final adjudication of the question raised before the Appellate Division. Thus the entire matter starting from the presentation of the plaint/application becomes sub-judice before Appellate Division. 44. The cause of action which led to the filing of the suit/proceeding out of which the appeal before the Appellate Division is pending, must survive pending disposal of the appeal by the Appellate Division, because, on the disappearance of the cause of action the appeal becomes infructuous. If the question under consideration is examined from this aspect, there cannot be any doubt that the plaint/application which provides the basis of the suit/proceedings out of which the appeal before the Appellate Division arose, becomes sub-judice. Unless the plaint/application is sub-judice the Appellate Division deciding the appeal is not competent to examine the plaint application to see whether the suit/proceedings as framed is maintainable or whether the plaint/application discloses any cause of action. If the statutory provision which provides a remedy by way of a suit, is repealed during the pendency of the appeal arising from the suit and abatement of the proceedings is provided in the repealing statute, with the abatement of the appeal the entire proceedings along with the plaint also abates. 45. Similarly, a writ application which has culminated in a judgment, becomes sub-judice before the Appellate Division in the appeal therefrom. In such a case the writ application undoubtedly becomes sub-judice and a pending matter and it continues to be so till this appeal is finally disposed of. The above considerations lead me to conclude that the judgment of the High Court Division on a writ application cannot be treated as finally disposed of during pendency of appeal therefrom. 46. Suspension of the Constitution by the Proclamation has completely taken away the writ jurisdiction of the High Court Division, and in the absence of the writ jurisdiction neither the High Court Division nor the Appellate Division is competent to pass any order on the writ application. So far the appeals before the Appellate Division are concerned there cannot be any controversy with regard to abatement of the appeals by operation of clause (g) of the Proclamation dated March 24, 1982. If any other view is taken it will lead to an anomalous position; because, in the absence of writ jurisdiction the writ petition which was dismissed by the High Court Division cannot be allowed. The Appellate Division while determining the appeal is required to give effect to the existing law which confers the jurisdiction. On the disappearance of the writ judgment the pending appeals arising from the judgments of the High Court Division automatically lose the basis. The rule of interpretation is that if a statute providing a remedy is repealed while proceedings are pending, the proceedings are thereby determined. According to this principle, in the absence of the writ jurisdiction the Appellate Division automatically loses its jurisdiction to pass any order giving remedy to the aggrieved party. 47. The discussions lead to the conclusions that by operation of clause (g) of the Proclamation the appeals either by certificate granted by the High Court Division or by special leave granted by this Court have abated; and with the

abatement of the appeals the judgments under appeal along with the writ petitions have also abated. Since a petition for special leave to appeal is transformed into an appeal only after compliance of the requirements of the Rules, that is, after filing of the requisites including the security deposits, and in default of compliance of any of the requirements leave granted by this is rescinded and the petition is dismissed; and an appeal by certificate becomes only, after filing of the petition of appeal, and in default of which the certificate by the High Court Division stands cancelled, the pending appeal include only those appeals wherein after certificate granted by the High Court Division petition of appeals filed; or after leave granted by this Court requirements under the Rules have been compiled with. There is no dispute that petitions for special leave pending in the High Court Division have abated. Abatement of the special leave petition does not affect the judgment of the High Court Division. Badrul Haider Chowdhury J.- The question whether the leave petitions or the appeals on certificates pending before this Division do abate with the meaning of clause (g) of the Proclamation. The wordings are: All proceedings arising out of and in connection with Writ Petition under Article 102 of the suspended Constitution shall abate. Proclamation itself has detailed the circumstances which necessitated the proclamation of Martial Law and paras (a) to (n) give structural idea of Martial Law Administration and the ouster clause is found in clause (h) and the abatement clause is given in the preceding clause (g). The abatement clause is located with the clause of continuance and the clause of continuation of certain functionaries. The placement of continuance clause is rather significant. There is no controversy that the Writ Petitions which are pending before the High Court Division abate. Next (1) the petitions for special leave to appeal from the judgment of the High Court Division, (2) and the appeals filed before this Court either with special leave or a certificate which are pending for hearing whether also abate. It is not disputed that the judgment which have been given in Writ Petition and which have not been challenged by appeal is not affected by clause (g). The only question is what about the judgment of the High Court Division against which leave was granted or petitions for leave are pending. 49. Mr. Hamidul Huq Chowdhury has contended that in such cases nothing further need to be determined in relation to their rights or claims litigated because already a declaration has been made by the High Court Division and those declarations are to be implemented on sufferance of contempt or by execution which have been expressly provided by the Proclamation (First Amendment Order) No.1 of 1982. The First Amendment Order has provided also an interim Constitution for the Government of the Republic. An orderly constitutional machinery has been provided for running the Governmental affairs of the country. In such setting the abatement clause is to be understood. Ordinarily, a Court of appeal cannot take into account a new law brought into existence after the judgment appealed from has been rendered because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. It is well settled that a new law is prospective and not retrospective in its operation and the Courts have looked with disfavour upon the laws which take away the vested rights or affected pending cases. 50. But if the law speaks in language which expressly or by clear intentment takes in even pending matters then the Court of appeal will be obliged to give effect to such a law even after a judgment of the court of the first instance. Such was the case in Diabati versus Inderjit A.I.R. 1966 S.C. 1423 where the question was whether the new law affected substantive rights retrospectively after judgment of the trial Court. Section 3 of the Usurious Loans Act 1918 was amended by section 5 of the Panjab Relief of Indebtedness Act which was extended to Delhi in 1956. The question was whether the rate of interest if exceeds 7 1/2% shall be declared excessive even by the Appellate Court notwithstanding that the decree passed by the trial Court was given before the amendment. Section 6 gives the retrospective effect. The Indian Supreme Court considered this ques tion. It was observed In the present Act the Intention is to give relief in respect of excessive interest in a suit which is pending and preliminary decree in a suit of this kind does not terminate the suit. The appeal is a part of the cause against the preliminary decree which when merges with from the appeal will be the decree which can become a final decree. Such an appeal cannot have an independent existence. The Supreme Court of India took the view that the new law wanted to give relief to the indebted people and the amendment was a beneficial one and the appeal is a part of the cause and such appeal cannot have any independent amendment. In this view of the matter the view was taken that a suit means a live suit whether in the Court of first instance or in an appeal Court where the judgment of the Court of first instance is being

considered. In this view of the matter the Supreme Court approved the High Court decision in applying the amended section in an appeal. 51. In Quilter versus Mapleson (1882) 9 Q.B. 672 the power of a Court of appeal in a pending proceeding was considered. A landlord brought an action to recover demised property under a proviso of re-entry for breach of a covenant. The plaintiff obtained judgment on 4th July. On the 4th of August, the defendant appealed. Stay of proceeding was granted and continued so that the plaintiff never obtained possession. On the first of January, 1882 the Convancing and Law of Property Act 1881 came into operation, after which the appeal came on to be heard. Under section 14(2) of the Act the tenant was given the relief until the landlord has re-entered and since the execution was stayed and the re-entry by the landlord was suspended. It was held that the action was still pending and appellate Court has the jurisdiction to grant relief to the tenant under that sub-section. It was further held that assuming the judgment of the Court below to have been correct according to law as it then stood the Court of Appeal could grant to the tenant the relief to which he was entitled according to law as it stood at the hearing of the appeal. It was further observed that the general orders provided that appeals shall be by way of rehearing and give power to the Court of appeal not merely to make any order which ought to have been made by the Courts below but to make such further or other order as the case may require. 52. These are the instances of appeals being in continuation of the suit. These are the live suits and the issues are though tried and decided is open for challenge in appeal. In this sense it is said that such appeals are continuation of the suit. These appeals are the creations of the respective enactments. 53. To illustrate the point further some provisions of the Code of Civil Procedure may be considered. Order 41, rule 5 provides that an appeal shall not operate as a stay of execution and so a Court may proceed with the execution of a decree under appeal. The jurisdiction to pass a final decree is not ousted as soon as an appeal is filed against a preliminary decree Sat Vs. Bahal 53 All 283. In the case of Dari Kapati Vs. Subbiah A.I.A. 1957 S.C. 540 , it was held that the rights of appeal is a vested right and that can be taken away only by a subsequent enactment expressly or by necessary intendment. AIR 1964 S.C. 489 offers an example of a saving clause Any proceeding instituted or commenced in any Court prior to the commencement of this Act shall notwithstanding any amendment hearing made continue to be heard and decided by such Court. Thus the appeals which were pending continue to be heard in spite of the amendment whereas in Beharilal Vs. Kashari Nandan A.I.R. 1970 All 201 it was noticed that it is open to the appropriate Legislature to take away such vested right. On examining the language of clause (a) subsection (1) of section 21 Civil Courts Act and sub-section (1)(a) of section 21 Civil Courts Act which was inserted by the Precedents Act the Court came to the conclusion that the Precedents Act was given retrospec tive effect. As regards the appeals arising out of suits instituted before 2.12.1968 those appeals lie to the district Court and not to the High Court any more. 54. An appeal against the judgment in Writ jurisdiction does not lie ipso facto nor such appeal has been created by any Statute. Therefore, the right of such appeal cannot be termed as a vested right. Article 103 (3) provides that an appeal shall lie only if the Ap pellate Division grants leave to appeal. In such cases the order of the Appellate Division granting special leave by itself operates as an admission of the appeals as soon as the conditions in the order relating to furnishing of security or making of a deposit are complied with. These classes of appeals stand on different footing than the class of appeals provided by Statutes. Order 45 Rule 13 CPC provides notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed unless the Court otherwise directs. Thus the theme that an appeal is a continuation of a suit cannot have universal application. But there are cases when the rights are adjudicated and declarations are made as are done in the Writ jurisdiction. Can it be said that such decisions are necessarily subject to appeal? It is to be noted that no appeal is expressly provided against any decision in the Writ jurisdiction. It is only by constitutional confirment of jurisdiction under Art 103 such petitions are entertained by this Division. After the declaration given by the Court is there anything further to be done apart from the question of filing any appeal. Reading the constitutional terms as given in Article 102 and in Article 4 of the Proclamation First Amendment Order 1982, it appears that the judgments of the High Court Division which are not subject matter of any pending appeal are not hit by the abatement clause and judgments do not come within the meaning of the expression proceeding. 55. The said judgments cannot be dislodged or nullified in the absence of any expressed provisions and such judgments which are in the nature of directions, orders, or declaration remain on their own force. The law declared

by either Division of the Supreme Court shall be binding on all Courts subordinate to it (Article 111) and a Constitutional obligation is created on the authorities to act in aid of the Supreme Court (Article 112) and same is the term in Article 4(4) and (5) in the Proclamation First Amendment Order, 1982. In this view of the matter I have come to the same conclusion as my Lord the Chief Justice has formulated that where special leave has been granted but requisites according to the Rules have not been filed petition for special leave will only abate or when after certificate granted by the High Court Division no appeal has been filed before the issuance of the Proclamation the certificate itself will be infructuous but in both the cases the Writ petition and the judgment of the High Court Division remain unaffected and will not abate. Shahabnddin Ahmed J.- I have had the advantage of going through the judgment proposed to be delivered by my Lord, the Chief Justice. While agreeing with the views taken in that judgment I like to add the following words of my own. 57. Under Clause (f) of the Proclamation the Constitution of the People's Republic of Bangladesh has stood suspended with immediate effect, and under clause (g) of the Pro clamation, among other things, all proceedings arising out of and in connection with writ petitions under Article 102 of the suspen ded Constitution shall abate. The question is which cases and appeals are contemplated in the expression proceedings arising out of and in connection with writ petitions under Article 102 of the suspended Constitution. Arguments advanced before us in this respect by the learned Advocates of both the parties centred round the following cases: (i) Writ Petitions pending before the High Court Division which have not yet been disposed of. (ii) Writ Petitions disposed by judgments against which no appeal has been filed to this Division. (iii) Petitions for special leave to appeal from judgments of the High Court Division disposing of Petitions. (iv) Appeals filed before this Division either by special leave granted by us or on certificates granted by the High Court Division, which are pending in this Division. (v) Writ Petitions which gave rise to appeals now pending as mentioned in Serial No. (iv) above. 58. There is no dispute whatever in respect of the cases mentioned against Serial No. (ii) simply because these are not pending in any court, and judgments not having been challenged in appeal have reached finality. As to the cases mentioned in Nos.(i) (iii) and (iv), also there is hardly any dispute that those are proceedings which shall abate. But the most debatable question is whether, along with the appeal, the original Writ Petition as mentioned against No. (v) which gave rise to the appeal, shall also abate. 59. In State Vs. Dosso, 11 DLR (SC) 1=1958 PLD 534, Munir, CJ took the view that abatement of the appeal means that not only the appeal from the High Courts judgment shall abate, but also the corresponding writ petition itself shall abate. The abatement, it has been observed there must be held to govern all those writs which were the subject matter of appeals the Supreme Court either on certificate or by special leave. The reason for abatement of the appeal along with the writ petition has been given by Munir, CJ, in the following words: No judgment, order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. I am, therefore, of the view that the writs issued by the High Court in these case are not final writs, and that all proceedings in connection with such writs including the original applications in the High Court have abated. 60. Decision of the Supreme Court of Pakistan incorporating this view as expressed by Munir, CJ was reiterated in a subsequent case Province of East Pakistan Vs. Md. Mehdi Ali Khan 11 DLR (SC) 318 . In that case also it has been observed that when special leave is granted for filing an appeal from the judgment of the High Court or an

appeal is filed on a certificate granted by the High Court then the High Courts judgment becomes sub-judice before the Supreme Court and the whole case is re-opened, and the Supreme Court is bound to apply the law as it exists today, no finality can be attached to the judgment when that judgment being challenged may be reversed, altered or modified. To appreciate this view a brief discussion of the facts of those cases is essential. 61. In the case of Dosso the appellant was tried and convicted by a Jirga (Council of Elders) under section 376, Penal Code read with section 10 of the Frontier Crimes Regulation, 1901. He challenged his conviction and imprisonment by a writ petition under Article 170 of the Constitution of 1956 before the High Court which held the Frontier Crimes Regulation to be invalid on the ground of its being inconsistent with Article 5 of the Constitution which guaranteed the fundamental right of citizens against discrimination. Judgment of the High Court declaring the trial and conviction a nullity was passed before the Constitution of 1956 was abrogated by a Proclamation dated October, 1958. The State filed an appeal from the High Courts order and the appeal was pending when the Constitution was abrogated by the Proclamation of October 1958 and in its place the Laws (Continuance in Force) Order, 1958 was promulgated on October 11, 1958. This Order did not include any fundamental rights; clause (7) of Article 2 of this Order provided that all applications and proceed ings in respect of any writ which is not so provided shall abate forthwith. The appeal was decided in accordance with this Order and it was held that Article 5 of the abrogated Constitution guaranteeing the fundamental right having disappeared from the field there was nothing left to challenge the Frontier Crimes Regulation under which the appellant was tried and convicted. The Supreme Court, therefore, held that the pending appeal abated and along with the appeal the original writ petition also abated. In the case Mehdi Ali Khan, 11 DLR (SC) 318 certain wakfs were acquired by the government under the East Bengal State Acquisition and Tenancy Act, 1950 but on a writ petition under Article 170 of the Constitution (1956) the acquisition was declared a nullity as the said Act was held to be invalid being inconsistent with Article 18 of the Constitution which guaranteed the right of maintenance of religious institutions, such as wakf. The order of the High Court of East Pakistan was challenged in an appeal by special leave and the said appeal was pending before the Supreme Court when the Constitution was abrogated by the Proclamation of 8 October, 1958. With the abrogation of the Constitution, fundamental rights under Article 18 disappeared entailing the consequence that the State Acquisition Act, 1950 reappeared and got a fresh lease of life by the Laws (Continuance in Force) Order, 1958, and as such, the acquisition of the wakf under the said Act stood valid. The appeal, as the Supreme Court held, abated along with the writ petition which gave rise to the appeal. Clause (7) of Article 2 of the Laws (Continuance in Force) Order 1958 which provided for the abatement of the proceedings in those two cases are found to be substantially similar to clause (g) of the Proclamation dated March 24, 1982 which provides for abatement of proceedings related to applications under Article 102 of the suspended Constitution of 1972. 62. Mr. Hamidul Huq Chowdhury contends that the principle that appeal is continuations of the original suit has got no universal application and that the principle that appeal is the continuation of the original suit is to be understood in a limited sense. Mr. Chowdhury is of the opinion that when an appeal abates by operation of any law the original suit or application from which the appeal arose does not abate and in support of this view he has referred to Order 45, Civil Procedure Code which provides that mere filing of an appeal does not operate as stay of the decree appealed from but the decree may be put into execution in spite of the pendency of the appeal if execution is not stayed by the Code. But it may be noted that execution of any decree during the pendency of appeal is subject to the result of the appeal and in case the decree is reversed or varied the process of execution is put into reverse gear, the appellant becoming entitled to restitution under section 144 of the said Code. This clearly shows that no finality is reached in the case of a judgment or decree when it is under challenge in an appeal. I am strongly of the view that an appeal is continuation of the original application, that when an appeal is pending the whole matter is reopened and becomes sub-judice, and as such the judgment appealed from is not final. Consequently when the appeal abates by operation of law, the application also abates. Chowdhury ATM Masud J.- I concur with the reasonings and the conclusion of my Lord the Chief Justice. Order of the Court It is ordered: (1) Writ Petitions pending before the High Court Division shall abate. (2) Petitions for special leave to appeal pending before the Appellate Division shall abate, but this abatement shall not affect the judgment of the High Court Division disposing of Writ Petitions.

(3) Appeals pending for hearing before the Appellate Division either by special leave or by certificate shall abate. (4) With the abatement of appeal pending for the hearing before the Appellate Division, Writ Petitions along with the judgments delivered by the High Court Division shall also abate. (5) In those matters where special leave has been granted by the Appellate Division but requisites according to the Rules have not been filed, the petition for special leave shall abate or when after certificate granted by the High Court Division no petition of appeal has been filed, the certificate will be infructuous but in both cases the Writ Petition and the judgment of the High Court Division will not abate. Ed.