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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 Peoples 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.
PETITIONERS 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.
STATES ARGUMENTS BY A.K. BROHI
The counsel argued:
1. Arguments based on the Judgment of Dossos 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.

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
Jilanis 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

3.
4.

5.

6.

7.

8.

intended to hand over the Government to chosen representatives


of Peoples of Pakistan.
Acts otherwise illegal becomes legal if done bona fide under the
Stress of Necessity.
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.
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.
CMLA had the power to pass Martial Law Regulations, Orders or
Ordinance for the furtherance of his objectives under the law of
necessity.
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.
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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