Case Law Asma Jilani vs Federation of Pakistan

Introduction

Judiciary plays a very important role in the interpretation of the statutes and laws. The judiciary has a pivotal role in the development of law. It develops law by giving judgments which become precedents. So precedents may be regarded as source of law. In Pakistan to the superior Courts gave judgments which became precedents. There have been a lot of important and leading cases in the history of Pakistan. Asma Jilani vs Government of the Punjab case is one of them.

Bench of Supreme Court

• Chief Justice:       Hamood ur Rehman
• Justice:                 Waheed ud Din Ahmad
• Justice:                 Muhammad Yaqub Ali
• Justice:                 Salahud din Ahmad and
• Justice:                 Sajjad Ahmad

Facts of Case

The facts of the Asma Jalani v/s Government of Punjab case are following:

1. Challenge of Malik Altaf Gauhar’s Detention

The appeals were filed because of the detention of Malik Altaf Gauhar and Malik Ghulam Gillni. The detention of both of them was challenged.

2. Persons challenged the detention

The persons who challenged the detention were Miss Asma Jilani who filed appeal for the release of Malik Ghulam Jilani and the other one was Zarina Gauhar who filed appeal for the release of her husband Altaf Gauhar.

3. Court in which Petition filed

The writ petition was filed by Asma Jilani in the Lahore High Court for release of her father Ghulam Jillani and Mrs Zarina Gohar filed an appeal in Sindh-Balochistan High Court.

4. Law under which Mr. Altaf Detained

Altaf Gauhar and Malik Ghulam Jilani were detained under Martial Law Regulation No. 78 of 1971.

Principles of Law or Rule of Law

Following are the Principles of law or Rule of law

i. Principle laid down in State Vs Dosso

It was held in this appeal that principles, which were laid down in State vs Dosso, were not justified.

ii. Constitution of Pakistan 1962

It was settled in this appeal that courts gave full effect to constitution of 1962, and all laws made and acts of various civil and military governments became lawful and valid due to that recognition, which constitution of 1962 and courts gave them.

iii. Court Duty

It was held in this appeal that court’s judicial function was to adjudicate upon a real and present controversy, which a litigant raised before it, and if litigant did not chose to raise a question, it was not for court to raise it suo motu.

iv. Bias in Judge

It was settled in this appeal that mere association with drafting of a law could not disqualify a judge from interpreting that law in light of those arguments, which presented before him.

v. Jurisdiction

It was held in this appeal that superior courts are judge of their own jurisdiction.

vi. Proclamation of Martial Law

It was decided in this appeal that General Yahya Khan’s proclamation of martial law was illegal.

vii. Doctrine of Necessity

Although doctrine of necessity was once again pleaded to defend military regime of General Yahya Khan, yet same was rejected through judgment of this appeal.

Conclusion

To conclude, it can be stated that judgment of case of Miss Asma Jillani was though announced after end of General Yahya Khan’s rule, yet it initially led to end of Bhutto’s martial law and finally it paved way for restoration of democracy and for adoption of constitution of 1973.

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