The father of the appellant, Malik Ghulam Jilani was arrested under an Order dated 22 December 1971 issued under rule 32 (i) (1) read with rule 213 of the Defence of Pakistan rules, 1971. Government rescinded this Order and substituted it be another purported to have been issued under Martial Law Regulation No.78 by the Martial law Administrator Zone “C”. The writ petition was accordingly amended and on the hearing on 15 January 1972 the Government raised a preliminary objection that the jurisdiction of the High Court was barred in the matter by virtue of the provisions of clause 2 of the jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the Chief Martial Law Administrator. The High Court (Shafi-ur-Rehman, J) relying on State V. Dosso, PLD 1958 S.C 533 held that the jurisdiction of Courts (Removal of Doubts) Order, 1969 was valid and binding and as such, it had no jurisdiction to entertain and decide the petition.
The appeals were heard and allowed by the Supreme Court declaring both the impugned orders of detention to be void and without legal effect setting both the detenus at liberty.
On incidental matters, the Supreme Court ruled as follow:-
(i) Law itself is not a legal concept for. What is law is really a theoretical question. Conclusion of law do not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press, 1933 (page 83) “the task which many writers on Jurisprudence attempt to fulfill in defining law is a futile one”for, according to him, “law has no definition except in a particular context.” So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery.
(ii) The Courts in the country gave full effect to the Constitution of 1962 and adjudicated upon the rights and duties of citizens in accordance with the terms thereof by recognizing this law constitutive medium as a competent authority to exercise that function as also enforced the laws created by that medium in a number of cases. Thus all the laws made and acts done by the various Governments, civil and military, became lawful and valid by reason of the recognition given to them by the new Constitution and the Courts. They had not only defactovalidity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Courts of highest jurisdiction in the country. The validity of the acts done thereunder are no longer, therefore, open to challenge.
(iii) The Courts do not decide abstract hypothetical or contingent questions or given mere declaration in the air. There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court’s judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant. If the litigant does not choose to raise a question, however importance it might be, it is not for the Court to raise it suo motu.
(iv) In spite of a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.
(v) The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The Superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilised countries.
(vi) Recourse could be had to the doctrine of necessity to validate and condone the illegality of certain legislations in order to save the country from greater chaos and the citizens from further difficulties.