SECOND CONSTITUTIONAL CASE
STATE V/S DOSSO CASE......1958
P.L.D. 1958 S.C. 553
INTRODUCTION:
This is one of the famous case in the judicial history of Pakistan. A murder took place in the LORALAI District of Baluchistan. The murder was commited by a person named Dosso. He was arrested by the Tribal authorities and was handed over to the council of elders or Grand Assembly called LOYA JIRGA, under the FCR 1901. The relatives of Dosso filed a petition in the Lahore High Court against FCR. the court decided the case in favour of Dosso. Later on Supreme Court on appeal of federal Government cancelled the decesion of lahore court.
BACKGROUND AND DETAILS O OF THE CASE:
The STATE V/S DOSSO CASE is very important because it left significant effects on the development and image of the Judiciary in Pakistan. The main events of this case can be discussed in the following lines:
Arrest and Conviction of Dosso:
Dosso and other were convicted under Section 11 of FCR 1901, and handed over to Loya Jirga. The Jirga convicted Dosso.
Petition in Lahore High court against FCR:
The relatives of Dosso filed a petition against the proceedings of council of elders regarding Dosso case in Lahore High Court. They challenged the references and the convictions on the grounds that the relevent provision of the FCR were void being repugnant in the " Equity before Law" and the equal protection of Law" and the right to counsel embodied in Articles 5 and 7 of the 1956 Constitution.
Decesion of Lahore High Court:
the High Court decided the case in favour of Dosso and declared FCR repugnant to 1956 constitution. Article 5 and 7 of which ensured the equality of all before the law. Thus Lahore High Court decided the proceedings of council of elders as null and void under FCR, 11901.
Effect of Lahore High court:
the effects of this case were the question of the valididt of FCR under whish many old cases were decided and especially since 1956 when the new constitution was promulgated.
Appeal in the Supreme Courtof Pakistan:
The Federal Government of Pakistan filed a verdict against the verdict of the Lahore High Court in the Supreme Court. The Supreme Court decided 13th october 1958 as the date for hearing the case. But before that on october 7, 1958, a drastic change came in the political history of Pakistan.
Promulgation of Martial Law:
On october 7th 1958 the President of Pakistan Iskandar Mirza declared Martial Law in the country and made AYUB KHAN as Chief Martial Law Administrators(CMLA). the centeral and provincial legislature were dissolved with the abrogation of the 1956 Constitution.
Laws ( Continuance in Force ) order: ( october 11,1958 )
Three days later the Laws( continuance in Force ) order was issued according to which all other laws wxcept those of 1956 constitution were validated and also the jurisdiction of all courts were restored, Thus, ( continuance in force ) order 1958 was the NEW LEGAL ORDER, which replaced the old legal order i-e the 1956 constitution.
SOME TECHNICAL POINTS:
Followed by the imposition of Martial Law some technical points raised in dosso case throughout the country.
The points were that if Supreme Court would have upheld the decesion of Lahore High Court in Dosso case, it means the 1956 Constitution was still in force as Lahore high Court decided the case in accordance with Article 5 and & 7 of the 1956 constitution. And if 1956 constitution was still enforce then what was the role of Martial law regulation i-e Laws ( continuance in Force ) Order 1958. In short it would have been a challenge to the Martial Law administration.
DECESION OF THE SUPREME COURT:
The Supreme Court decided the case unanimously against the verdict of Lahore High Court. The Supreme Court decesion ws based on the KELSON'S THEORY OF LEGAL POSITIVISM.
KELSON's THEORY OF LEGAL POSITIVISM:
According to kelson's theory:
" If there is no change in the constitution or the government with meta-legal means and ways and if there is no opposition resistant to this change internally by the people plus no disturbance in the territorial integrity of the country, then such a change is successful revolution and is recognised by the International law. "
Thus the Martial Law coup of 1958 was legalized by the Supreme Court under the Chief Justiceship of JUSTICE MUNIR.
Recognition of Laws ( continuance in force ) order:
The Supreme Court held the the Laws ( c0ntinuance in Force ) order 1958 was the NEW LEGAL ORDER and the validity of laws and the correctness in the judicial decisions would be determined according to it.
Restoration of FCR:
The Supreme court also held that as the 1956 constitution was abrogated therefore FCR 1901 was still in force in accordence with the laws (coninuance in force ) order, 1958.
CONCLUSION:
It has far-reaching consequences on the judicial and political history of Pakistan.
Due to this decesion the FCR was restored which is termed as BLACK LAW. It was a chance to expel it once for all.
__________________
Life is a tale told by an idiot...
Last edited by Princess Royal; Sunday, September 13, 2009 at 07:09 AM.
|