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Old Thursday, January 01, 2015
Sheharzaad Sheharzaad is offline
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Default State V/s Dosso case (updated)

P.L.D. 1958 S.C. 553
Introduction: State v/s Dosso is a simple case of murder committed by a person named,Dosso in Balochistan.He was convicted under the tribal system of justice by Loya Jirga as enumerated in FCR(frontier crimes regulation); but his relatives approached to the Lahore high court which repealed the decision of Loya Jirga,later on, on the appeal of Federal Govt,Supreme court reversed the decision of Lahore High court.The case got prominence,because it indirectly questioned the legitimization of Martial law imposed by Iskandar Mirza on 7th oct,1958.
Background: A murder took place in the Lora lai district of Balochistan by a person named as Dosso.He was arrested and was handed over to the Council Of Elders(Loya Jirga).The Tribal authorities charged him under FCR, 1901.The relatives of Dosso upon this filed a writ petition in Lahore High court against the decision of Loya jirga.Lahore high court heared the case under the constitution of 1956, and held its verdict in favour of Dosso.Lahore high court also declared FCR as an unconstitutional.The Federal Govt filed appeal against this decision in SC of Pakistan.SC decided the case in favour of the federal govt.
Main Events/Facts:
1)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.
2)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.
3)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, 1901.
Effect of Lahore High court:

the effects of this decision were that,after the declaration of FCR as repugnant to the constitution;then the validity of those cases were questioned, which were decided under FCR since long befor it was enacted, and especially since 1956 when the new constitution was promulgated.
Appeal in the Supreme Courtof Pakistan:

The Federal Government of Pakistan went into an appeal in SC against the verdict of the Lahore High Court.The Supreme Court decided 13th october 1958 as the date for hearing the case. But prior to that on october 7, 1958, a drastic change came in the political history of Pakistan;when 1st martial was Imposed in the country.
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 except those of 1956 constitution were validated and also the jurisdiction of all courts were restored. Thus,law ( continuance in force ) order 1958 was the NEW LEGAL ORDER, which replaced the old legal order i-e the 1956 constitution.

Followed by the imposition of Martial Law some technical points raised in dosso case throughout the country.

a) if Supreme Court would 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.
b) 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.

The Supreme Court decided the case unanimously against the verdict of Lahore High Court. The Supreme Court decesion ws based on the Hans KELSON'S THEORY OF LEGAL POSITIVISM.

According to kelson's theory:

1)LEGALISATION OF 1958 martial law
The judgment held that 1958 Martial law imposition is a kind of revolution(peaceful revolution) which is not resisted or opposed by the common people;this clearly defines that the people are happy with this change,thereafter this revolution or martial law is legal as long as it satisfies the common people.
2)Recognition of Laws ( continuance in force ) order:

The Supreme Court held that 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.

3)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.
4) The Decision Of LOYA JRGA Is Valid:
The court also made a reference to the decision of council of elders,that its decision is valid and upto the mark.
Critical Analysis/Commentary/Impacts of SC verdict:
1)Recognition of ML:
The judgement of SC recognized the ML as legal and valid action;this had a far reaching effects on the political history of Pakistan.It opened the gates for the future ML”s in the country;also the recognition of ML provided with absolute powers in the hands of ML administrator who generously used it for next 10-11 years.
2)Halt Democratic process:
The verdict of Sc halted the democratic process of pakistan which had recently been on the road after the promulgation of 1st constitution of Pakistan on 23rd march 1923;and threw the country onto the track of dictatorship.
3)Deprivation from Constitution:
As a result of the judgment,Pak was deprived from its 1st independent constitution framed and promulgated after so much efforts,and a long struggle of 11 years.
4)Encouraged Military intervention:
The verdict of Sc encouraged the subsequent military interventions in the politics of Pakistan;which occurred three times i-e Gen;Yahya 1967,Gen;Zia 1979 and finally Gen;Musharraf in 1999, after this sad event.These interventions potently damaged the democratization in pak.
5) FCR Revalidated:
The judgement of Sc revalidated the British Imperial legacy,the curse,i-e FCR;popularly known as black law,in the tribal areas of Frontier and Balochistan;which is still enforced even today.Had it not been decalred as valid in 1958,the disturbacces now in these regions would have not been exist,if these people were brought under the arena of normal judicial system of Pakistan.
6) Damaged Independence of Judiciary:
The verdict was a serious blow to the independence of judiciary.The judiciary was bound to render its services under the new legal order of,Laws (continuance in force 11 oct,1958);even if the the judges have to give decisions against the basic principles of justice,they were bound to do so.
7) Curbing of Appellate Jurisdiction:
The decision also took away the power of the courts to hear appeals against the cases/actions of federal Govt.
8) Laughing stock for civilized world:
The judgement provided a laughing stock for civilized world on Pakistan;Because of the recognition of ML on the basis of Hans Kilson outdated theory,which is an irrelevant principle.
9) Judiciary Bow down in front of Executive:
Once again the judiciary bowed down in front of strong executive in this case.
10) Disturbed ties between East and west Pakistan:
The abrogation of 1956 constitution also led to the upset of agreements between East and West Pakistan;which were resolved after long struggle under 1956 constitution.The grievences of East Pakistan were almost pacified in 1956 consensus based constitution by incorporating both urdu and Bengali as national language etc.Had the ML was not legalized at that time,we would have not lost East Pakistan…
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