INTERNATIONAL ISLAMIC UNIVERSITY,

ISLAMABAD

Constitutional History of Pakistan

The Dosso Case (PLD 1957 SC 533)

Submitted to: Ma’am Afsheen Malik

Submitted by: Zahra Khan
449-FSL/LLB5Y/S22
Kashmala Mughal
456-FSL/LLB5Y/S22

1
 Table of Content
1. Introduction
2. Facts of the case
3. Issues
4. Rules
5. Analysis
6. Judgment
7. Criticism
8. Comparison with current situation of Pakistan.

2
 THE STATE VS DOSSO
(PLD 1958 S.C. 533)

1. INTRODUCTION:
The State vs Dosso was primarily a murder case that burgeoned into a first constitutional case
after Coup d’etat that indirectly questioned the legality of the imposed Martial Law on the
country by Iskandar Mirza on 7th October 1958.

2. Brief facts of the case:

i. Dosso and Muhammad Khan, the Respondents, had been convicted under the Frontier
Crimes Regulation, 1901 (FCR) by the Deputy Commissioner of Loralai, a “special
area” excluded from jurisdiction of the High Court by Article 178 of the 1956
Constitution.
ii. The Respondents were sentenced to five years rigorous imprisonment under S.376 read
with S.12(2) of the FCR on basis of an award by Jirga (Council of Elders).
iii. They were undergoing detention at Machh in Baluchistan well under the High Court’s
jurisdiction.
iv. A writ petition was filed against the decision of the Jirga and the respondents were
presented before the High Court that declared their detention illegal as S.11 and other
relevant provisions of the FCR were void under Article 4 and repugnant to Article 5
the Constitution of 1956. The High Court decided the proceedings of Council of Elders
as null and void under FCR, 1901.
v. The Federal Government went into an appeal in Supreme Court against High Court’s
verdict. 13th October 1958 was the date set for hearing the appeal, but Martial Law was
imposed on October 7, abrogating the 1956 Constitution.
vi. On October 11, Laws (Continuance in Force) Order was issued under which all laws
were validated except the Constitution and was introduced as the New Legal Order.

3. Issues/ Dilemma before Court:

i. Whether the decision of the High Court be upheld or the writ issued stand abated under
clause 7 of Article 1 of the laws (Continuance in Force) Order.
ii. Whether HC decision endorsed the fact that the Constitution of 1956 was still in force.

4. Rules:
i. Article II of the (Continuence in Force) Order
" 2 ( 1 ) Notwithstanding the abrogation ' of the Constitution of the 23rd March 1956 ,
hereinafter referred to as the late Con stitution , by the Proclamation and subject to

3
 any Order of the President or Regulation made by the Chief Administrator of Martial
Law the Republic to be known henceforward as Pakistan , shall be ' governed as nearly
as may be in accordance with the late Constitution .

ii. Article 2 Clause 7 of the (Continuance in Force) Order

All orders and judgments made or given by the Supreme Court between the
Proclamation and 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 Pro clamation 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 .

iii. Article IV of the Laws (Continuance in Force)Order, 1958

4 ( 1 ) Notwithstanding the abrogation of the late Constitution and subject to any Order
of the President or Regulation made by the Chief Administrator of Martial Law , all
laws , other than the late Constitution , and all Ordinances , Orders in Council , Orders
other than Orders made by the President under the late Constitution , ( such orders
made by the President under the late Constitution as are set out in the Schedule to this
Order , Rules , bye - laws , Regulations , Notifications , and other legal instruments in
force in Pakistan or in any part thereof , or having extra - territorial validity ,
immediately before proclamation , shall , so far as applicable and with such necessary
adaptations as the President may see fit to make , continue in force until altered ,
replaced or amended by competent authority "

iv. Victorious revolution or successful coup d’etat is an internationally recognized legal

method of changing a Constitution.
v. Han’s Kelson General Theory of Law and State

5. Analysis:
i. The Proclamation of Martial Law in Pakistan and the abrogation of 1956 Constitution
followed by the Laws ( Continuance in Force) Order is a Successful Revolution and it
derives its validity from an Internationally Recognized legal method of changing a
constitution. After this evolution , New Legal Order for its validity depends on new
Law creating Body. All the courts also derive their jurisdictions from this legal order.
According to the International law, As the territory and the people remained
substantially same, the revolutionary government and the new constitution are
Legitimate government and legitimate constitution. Relying upon Han’s Kelvin
General Theory of Law and State, Where a revolution is successful it satisfies the test
of efficacy and becomes a basic law creating fact. As per this Assumption The new
legal order brought by revolutionary coup D’etat of martial law administrator Ayub
Khan however transitory or imperfect is a valid Legal order for Pakistan.
ii. The writs granted by High court are invalid because the fundamental rights which
provided the grounds for writs in the late Constitution (1956 constitution) stands
abrogated as per Article 4 of the Continuance of Force Order. Fundamental rights are
not part of the new legal order hence unrecognized. As a consequence the High Court

4
 or Supreme Court under the new legal order exercise no authority to maintain a writ
regarding the violation of fundamental right. Writs cannot be issued by the superior
courts because fundamental rights are listed in Part 2 of the late constitution. In the new
national legal order there is nothing to be construed as fundamental right unless any
provision can be amended or given by the President any time on this subject. Unless
the President issue any order Fundamental rights are not law of the land as per new
legal order.
iii. Moreover There is a contention that Article 2 and Article 4 of the Continuance in Force
order are contradictory. As Article 2 provides that Pakistan is to be governed as nearly
as might be in accordance with the late constitution while Article 4 explicitly declares
the 1956 constitution abrogated. Here Article 2 doesnot have the effect of restoring the
fundamental rights rather the reference to the government is to the structure and outline
of the government not laws of the late constitution. There is no sound contradiction
between the two articles but even if it would Article 4 overrides Article 2 of the Order.
Future applications or writs filed on the grounds of any one or more of the law
mentioned in Article 4 or any right given in the Order is contravened. Further the
pending applications of writs or issues subjudice in Supreme court will be tackled as
per the clause 7 of Article 2 where writs issued after the promulgation of order or after
the Proclamation have no legal effect until filed on the grounds of any law or right
mention in Order. Infarction of any law or right recognized under Article 4 of the order
justify the application of writs not from the late Constitution.
iv. Writs were entertained by the high court on the grounds that Frontier Crimes Regulation
provided under Article 4 is contradictory to the Article 5 of 1956 Constitution hence it
is invalid. Article 5 cannot be relied because of the abrogation of the late constitution
but Article 4 of the Order is enforceable because it is still in force so the Frontier Crimes
Regualtion is valid. Convictions made by the deputy commissioners are good and the
references to the Council of Elders is also legally safe. Where the writs provided by the
high courts are not enforceable because the grounds established are not as per the laws
provided by the new Legal order but the late constitution.

6. Judgment:
The Supreme Court decided unanimously against the verdict of the High Court and
held; “A victorious revolution or a successful coup d’ etat is an internationally
recognised legal method of changing a constitution.” The decision was based on
Hans Kelson’s Theory of Law and State1 ; “Where revolution, is successful it satisfies
the test of efficacy and becomes a basic law-creating fact.”, legitimizing the Martial
Law. With Martial Law being declared legitimate the Laws (Continuance in Force)
Order was recognized, FCR,1901 were restored and the decision of the Council of
Elders was upheld.

1
Hans Kelsen: “General Theory of Law and State” translated by Anders Wedberg; 20 th Century Legal
Philosophy Series pp. 117-118

5
7. Criticism:
Sealing the legitimacy on the Government of Iskandar Mirza, a perfectly good country
was made into a laughingstock. The country that came into being based on a
parliamentary system of government having three organs of the state namely;
Executive, Legislature and Judiciary was soon converted into a dictatorship and
autocracy, ceasing the right of people to have any share in exercise of state powers who
were the recepients of the delegated sovereignty from the Almighty.Besides, giving a
judgment by comparing coup d’etat to French, Russian or Italian revolutions was a clear
stretching of the meaning of the word “revolution”. The sole duty of the C.J. Munir was
to stand with what was right. Claiming the rights verdict was not dispensed by him as
he knew it would be followed does not put him on the right side of history.

8. Comparison with the ongoing Political situation of Pakistan;

There comes a straight relevance of the military coup by the Chief Martial Law
administrator Ayub Khan and the current Soft coup of a mere unelected Caretaker
Prime minister who has already exceeded its Constitutional mandate of 3 months and
is confidently enjoying the unconstitutional privileges like a dictator. The delegated
authority to the people of Pakistan by the sovereign is ruthlessly infringed. An unelected
government is framing laws, establishing major policies, significant appointments and
decisions with Long term consequences which may intervene the authorities of future
Elected government. 1973 Constitution is not abrogated on face but the blunt
unconstitutional conduct of Caretaker government, and Judicial decisions has made it
very much impractical to the extent of abrogation. The sole duty of the Apex court to
stand for what is right and to decide each case on that basis regardless of enforceability
is still missed. Wrong Verdicts are still given for the fear that the right one will not be
enforced. The irrelevant considerations are evident that’s why we still stand on the
barren grounds of wretched Pakistan Constitutional History which needs to be mended
unfortunately from as long as 70 years.