The State

       Vs

 Dosso & another

(PLD 1958 SC 533)

.The State vs Dosso & Another is a most important case in the constitutional history of Pakistan, which was decided by the Supreme Court of Pakistan on October 27, 1958. This judgment of the Supreme Court opened doors for Generals and Coup Commanders to impose Martial law and emergency in Pakistan from time to time as this judgment set a precedent for incoming judges by declaring the military coup legitimate and legal.

The Dosso and Muhammad Khan were the residents of Loralai, Baluchistan and they were charged with murder and had been convicted and sentenced to imprisonment of several terms under the Frontier Crimes Regulations. 1901 by the Deputy Commissioner of Loralai, a special area excluded from the jurisdiction of High Court as well as the Supreme Court under Article 178 of the Constitution of Pakistan 1956. They were undergoing their imprisonment in a jail in Machh in Balochistan, which is within the territorial jurisdiction of the High Court as well as of the Supreme Court of Pakistan. Therefore, their relatives filed writ petition for habeas corpus before High Court where it was claimed that their detention was illegal on the major ground that the provision of the Frontier Crimes Regulations, 1901 becomes void by the operation of article 4 and 5 of Constitution of 1956 which deals in protection from discrimination and equality of all citizens before the law respectively. A Divisional bench of High Court allowed this writ petition on the ground that High Court had the jurisdiction in respect of person detained in their territorial jurisdiction and as for the conviction it was held by the High Court that this conviction is without valid legal sanction as having being obtained under the provisions of Frontier Crimes Regulations, 1901 which were repugnant to the article 4 and 5 of Constitution of 1956. The appeal was preferred against the impugned judgment of High Court by the State to set aside the same but during the pendency of this appeal the Constitution of 1956 was abrogated by Iskandar Mirza on October 7, 1958, Martial Law was imposed in all over the country and all the provincial and central assemblies were dissolved. Three days later to this, Provisional Constitutional Order, 1958 was promulgated by the President which restored enforcement of all laws in Pakistan except the Constitution of 1956.

The Supreme Court of Pakistan faced with annulment of Constitution of 1956 as there is a technical question arises about the validity of Martial Law as if Supreme Court allowed this appeal it results in validation of imposition of Martial Law and if Supreme dismissed this appeal it means that the Constitution of 1956 was still in force, resultantly four out of three judges ruled that these Fundamental Rights protections had now ceased because Provisional Constitutional Order, 1958 promulgated by the President did not continue to maintain the extension of these fundamental rights to all citizen hence this Legal Order, 1958 reverted back to the pre-Constitutional position under which the Frontier Crimes Regulations, 1901 was valid and Hence, their conviction under Frontier Crimes Regulations, 1901 stand as valid. The reason provided for the legitimacy of this Provisional Constitution, 1958 is that it was promulgated by those who were in power and for this purpose they relied on “Hens Kelson Theory of Positivism”, they interpreted that this theory provides if there is a military coup in a country to bring revolution and it becomes successful than such coup is deemed as peaceful revolution. According to their interpretation they stated that:

“Thus a victorious revolution or a successful coup d’Etat is an internationally recognized method of changing a Constitution”.

While one of four judges of the Supreme Court named Justice Carnalius gave a “Dissenting Note”. Therefore, with the majority decision the conviction of Dosso and Muhammad Khan were upheld and they remained in jail to fulfill their respective sentence.

The judgment pronounced by the Supreme Court in Dosso case affected the country in various ways. The some aspects of this judgment are that this judgment recognized the Martial Law as legal and valid action, this affects the politics of Pakistan. It opened the gates for the future Martial Laws in the country, which resulted in the same evening of October 27, 1958. Chief Martial Law Administrator Ayoub Khan imposed another Martial Law in the country and removed President Iskandar Mirza and became the President of Pakistan. Moreover, this verdict halted the democratic process of Pakistan which had recently been on the road after the promulgation of Constitution of Pakistan, 1956 and threw the country onto the track of dictatorship. Furthermore, this verdict was a serious blow to the independence of judiciary. The judiciary was bound to render its services under the new legal order 1958. In addition to this, the judgment provided a laughing stock for the civilized world on Pakistan due to the utilization of Hans Kelson theory for the recognition of Martial Law, which is an irrelevant principle.                                                                                    

To conclude the above, there are several important lessons that Pakistanis should take heed of. First and foremost, the case expresses the significance of upholding the rule of law. It highlights the negative consequences that can arise when individuals or institutions take matters into their own hands and disregard legal processes. The Dosso case serves as a reminder that no one is above the law, and that everyone, regardless of their status or position, must be held accountable for their actions. Additionally, the Dosso case exemplifies the importance of an independent judiciary. It serves as a reminder of the need for a strong and impartial judiciary that can act as a check on the power of the executive branch and safeguard the fundamental rights of citizens. Furthermore, the Dosso case highlights the need for legislative reforms. The case revealed certain gaps and ambiguities in existing laws, which allowed for the unconstitutional actions that took place. It emphasizes the necessity of regularly reviewing and updating laws to ensure they align with democratic principles and protect individual rights. This incident should prompt Pakistani lawmakers to take a proactive approach towards legal reforms to avoid similar situations in the future.