THE STATE Versus DOSSO

Dosso and others were either convicted by or their cases referred to the Council of Elders under section 11 of the Frontier Crimes Regulation, 1901. They approached the High Court in writ jurisdiction challenging the convictions and references of Jirga on the following grounds:

• That the relevant provisions of the Frontier Crimes Regulation were void being repugnant to the "Equality before the law and equal protection of the law"

• and that the "right to Counsel" embodied in Articles 5 and 7 of the Constitution, 1956.

Their petitions were accepted and the convictions and references set aside. The Appeals filed by the State before the Supreme Court were pending and stood posted to 13 October 1958 for hearing when the President of Pakistan by a proclamation issued on 7th October 1958 abrogated the Constitution, 1956, dismissed the Central and Provincial Cabinets, dissolved the National and Provincial Assemblies and imposed Martial Law throughout the country. The Chief of the Army Staff (then known as C-in-C) was appointed as Chief Martial Law Administrator. Three days later on 10th October, the President promulgated the Laws Continuance in Force Order, 1958, the general effect of which was the validation and continuance of laws, other than the Constitution, that were in force immediately before the Proclamation, and restoration of the jurisdiction of all Courts including that of Supreme Court and High Courts to issue writs. The Order further directed that the country thereafter to be known as Pakistan Instead of the Islamic Republic of Pakistan, shall be governed as nearly as, may be in accordance with the erstwhile Constitution. These appeals were decided in the light of the change in the law brought about by the new Order and allowed in accordance with the judgment of the majority and the proceedings for writs in each of these cases were held to have abated with the result that the directions and writs issued by the High Court were recalled. 

The Supreme Court held that: 

1. A victorious revolution or a successful Coup of D'etat is an internationally recognized legal method of changing a Constitution.
2. After a change of that character has taken place, the national legal order must for its validity depend upon the new law creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution.
3. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine no change in the corpus or international entity of the State  and the revolutionary government and the new Constitution are, according the International Law, the legitimate government and the valid Constitution of the  State. [Hans Kelsen: "General Theory of Law & State" translated by Anders Wedberg; 20th Century Legal Philosophy Series pp. 117 118].
4. Where revolution is successful it satisfies the test of efficacy and becomes a basic law-creating fact. On that assumption the Laws Continuance in Force Order,  however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity  of the laws and the correctness of judicial decisions had to be determined. Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue Department,  Government of East Pakistan P L D 1957 S C (Pak.) 9 ref.
5. Article II of the Laws (Continuance in Force) Order, 1958 provided that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision did not have the effect of restoring fundamental rights because the reference to Government in this Article was to the structure and Outline of Government and not to the laws of the late Constitution which had been expressly abrogated by Article IV.
6. The applications for writ in future will depend on the  ground that any one or more of the laws mentioned in Article IV or any other right preserved by the Laws Continuance in Force Order has been contravened. 
7. The relevant provision in clause (7) of Article II 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 other right kept alive by the new Order had been contravened. 
8. The pending proceeding relating 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. 
9. 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. 

Chief Justice Munir held that since Art. 5 of the late Constitution itself had now disappeared from the new legal order, the Frontier Crimes Regulation, 1901 by reason of Act IV of the Laws (Continuance in Force) Order, 1958 was still in force and all proceedings in cases in which the validity of that Regulation had been called in question the convictions recorded and the references made to the council-of-eldes were good. He further held that a victorious revolution or a successful coup d’etat is an internationally recognized legal method of changing a Constitution and that after a change of that character had taken place the national legal order must for its validity depend upon the new law creating organ. Even courts lose their existing jurisdictions and can function only to the extent and in the manner determined by the new Constitution. It was also held that if the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State, and the Revolutionary Government and the new Constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Where revolution is successful, it satisfies the test of efficacy and becomes a basic law creating fact. On that assumption, the Laws (Continuance in Force) Order, however transitory or imperfect, was a new legal order and it was in accordance with that order that the validity of the laws and the correctness of judicial decisions had to be determined.

A. R. Cornelius, J. while dissenting from the above view held that: