Authored By: Syed Muzammil Ahmad Shah
LUMS (Lahore University Of Management Sciences )
Case Title and Citation
Asma Jilani v Government of the Punjab and another (Criminal Appeal No. 19 of 1972) PLD 1972 SC 139. 1
Court and Bench
Supreme Court of Pakistan, sitting as a full bench. Judgment delivered by Hamoodur Rahman C.J., with concurring and supplementary opinions by Yaqub Ali J., Waheeduddin Ahmad J., Salahuddin Ahmed J. and others. 2
Date of Judgment
20 April 1972. 3
Parties Involved
Appellants:
- Miss Asma Jilani, daughter of Malik Ghulam Jilani, who challenged her father’s detention under Martial Law Regulation (MLR) 78. 4
- Mrs Zarina Gauhar, wife of Altaf Hussain Gauhar, who challenged her husband’s detention under the same regulation. 5
Respondents:
- Government of the Punjab and Government of Sindh, representing the Martial Law authorities and state functionaries. 6
Factual Background
The late 1960s were marked by political instability in Pakistan. In March 1969, amid public protest and civil unrest, President Ayub Khan announced his resignation. Rather than following the constitutional mechanism set out in the 1962 Constitution—where the Speaker of the National Assembly would become Acting President until elections—Ayub asked the Army Commander-in-Chief, General Agha Muhammad Yahya Khan, to restore order. 7
On 25 March 1969, Yahya Khan proclaimed Martial Law nationwide, abrogated the 1962 Constitution, dissolved the legislatures, and declared himself Chief Martial Law Administrator (CMLA) and later President. 8 He issued the Provisional Constitution Order 1969 and Presidential Order No 3 of 1969, which barred courts from questioning acts done under martial law.
In 1971, Yahya Khan promulgated MLR 78, empowering martial law authorities to detain individuals indefinitely without trial or reasons. Using this, the state detained Malik Ghulam Jilani, a political activist, and Altaf Hussain Gauhar, a journalist and former civil servant. Their families petitioned the High Courts for release. However, both the Lahore High Court and Sindh High Court dismissed the petitions, citing Presidential Order No. 3 and relying on State v Dosso (PLD 1958 SC 533) 10, where the Supreme Court had upheld martial law under Kelsen’s theory of revolutionary legality.
Appeals were filed to the Supreme Court of Pakistan, which granted leave to examine both the validity of the detentions and the constitutional legitimacy of Yahya Khan’s rule.
Issues Raised
- Did the High Courts retain jurisdiction under Article 98 of the 1962 Constitution despite Presidential Order No. 3 of 1969? 11
- Was General Yahya Khan’s assumption of power and abrogation of the Constitution lawful?
- Was the doctrine of revolutionary legality in State v Dosso correctly applied in Pakistan? 12
- Could acts performed under an unlawful regime nevertheless be preserved, and on what legal basis?
Arguments of the Parties
Appellants
The appellants argued that:
- Yahya Khan’s rule was unconstitutional because Ayub Khan lacked authority to transfer power to the army chief; the 1962 Constitution vested succession in the Speaker of the National Assembly. 13
- Martial Law Regulation 78 and Presidential Order No. 3 were void as they were made by an authority with no constitutional legitimacy.14
- Dosso had been wrongly decided by importing Kelsen’s pure theory of law into Pakistan, which undermined constitutional supremacy. 15
- Courts cannot be divested of their jurisdiction by a mere presidential order.
Respondents
The respondents contended that:
- Yahya Khan’s government had effective control over territory and population, making it a valid legal order under Kelsen’s doctrine of effectiveness. 16
- The international community and domestic institutions had recognised the regime, and such recognition supported its legitimacy. 17
- To preserve continuity and avoid chaos, courts should uphold acts of the de facto regime. 18
- Dosso remained binding precedent under the doctrine of stare decisis.
Judgment and Final Decision
The Supreme Court unanimously allowed the appeals. The Court held that:
- General Yahya Khan was a “usurper” who had unlawfully seized power. 19
- State v Dosso was overruled; the doctrine of revolutionary legality based on effectiveness was unsustainable in Pakistan. 20
- Presidential Order No. 3 of 1969 and MLR 78 of 1971 were unconstitutional and void. 21
- The High Courts had jurisdiction to issue writs under Article 98 of the 1962 Constitution, despite martial law decrees. 22
- The detentions of Malik Ghulam Jilani and Altaf Hussain Gauhar were illegal, and both were ordered to be released. 23
At the same time, the Court invoked a limited doctrine of necessity to condone (but not legitimise) certain acts of Yahya Khan’s government to prevent administrative and legal chaos. 24
Legal Reasoning / Ratio Decidendi
Invalidity of Yahya Khan’s regime
Hamoodur Rahman C.J. stressed that the 1962 Constitution laid down a clear succession process: the Speaker of the National Assembly would assume office upon the president’s resignation. 25 Ayub Khan’s letter to Yahya Khan conferred no constitutional authority. Therefore, Yahya Khan’s proclamation of martial law, assumption of presidency, and abrogation of the Constitution were void ab initio.
Rejection of Dosso and Kelsenian legality
The Court revisited State v Dosso, where Chief Justice Munir had validated martial law by adopting Hans Kelsen’s theory that a successful revolution created a new legal order. 26 In Asma Jilani, the Court decisively rejected this reasoning: 27
- Kelsen’s theory was not universally accepted and was never intended as a prescriptive legal rule for municipal courts.
- Effectiveness or recognition cannot convert an unconstitutional seizure of power into lawful authority.
- Municipal courts must judge legitimacy within the framework of the Constitution, not by external notions of power or international recognition.
Defining “law”
Justice Yaqub Ali observed that “law” must emanate from legitimate authority. 28 Decrees of a usurper—such as martial law regulations or presidential orders lacking constitutional basis—could not qualify as law. Pakistan’s legal system, grounded in the Objectives Resolution and constitutionalism, required that sovereignty be exercised only through lawful institutions.
Doctrine of necessity: condonation not legitimisation
The Court acknowledged the practical difficulty of invalidating all acts of Yahya Khan’s regime. It therefore applied a limited doctrine of necessity:
- Transactions that were closed and completed could not be reopened.
- Acts consistent with or permissible under the abrogated Constitution could be condoned.
- Actions necessary for governance and public welfare would stand.
- Measures designed to entrench the usurper or curtail rights would not be condoned. 29
Importantly, the Court clarified that condonation does not equal legitimization. The usurper’s acts remain illegal; courts only tolerate certain acts to avoid greater harm.
Islamic and constitutional principles
The Court drew on the Objectives Resolution (1949), incorporated later into the 1973 Constitution, to emphasize that sovereignty belongs to Allah, and political authority is to be exercised through the people within constitutional limits.30 This reaffirmed that arbitrary rule by an individual has no legitimacy in Pakistan’s constitutional order.
Conclusion and Observations
Constitutional significance
Asma Jilani stands as a watershed in Pakistan’s constitutional jurisprudence. It overruled Dosso and ended judicial reliance on the doctrine of revolutionary legality. It reaffirmed the supremacy of the Constitution and declared that usurpation of power cannot be justified by effectiveness alone. By describing Yahya Khan as a “usurper,” the Court signaled a dramatic shift from its earlier deferential stance toward military regimes. 31
Impact on constitutional development
The case had direct consequences for the drafting of the 1973 Constitution, which introduced Article 6, making abrogation or subversion of the Constitution an act of high treason. 32 The judgment also reinforced the judiciary’s role in safeguarding fundamental rights and judicial review, influencing later decisions during subsequent military interventions.
Critical reflection
Despite its strong language, the Court’s resort to the doctrine of necessity has been criticised. Some scholars argue that condoning acts of an illegal regime undermined the clarity of the Court’s rejection of usurpation. 33 Others, however, view it as a pragmatic balance between principle and stability.
Nonetheless, Asma Jilani remains a constitutional landmark: it restored the judiciary’s credibility, aligned Pakistan’s jurisprudence with constitutional supremacy, and laid the foundation for subsequent efforts to prevent extra-constitutional takeovers.
Bibliography
Cases
- Asma Jilani v Government of the Punjab and another (Criminal Appeal No. 19 of 1972) PLD 1972 SC 139.
- State v Dosso PLD 1958 SC 533.
- Federation of Pakistan v Moulvi Tamizuddin Khan PLD 1955 FC 240.
Constitutions and Statutes
- Constitution of Pakistan 1962.
- Constitution of Pakistan 1973, art 6.
Secondary Sources
- Hans Kelsen, Pure Theory of Law (University of California Press 1967).
instead of just “Hans Kelsen (n 17)”. - Hamood Rahman CJ, judgment in Asma Jilani (PLD 1972 SC 139).
- Record of Law, How to Write a Case Summary (Internship Guide, 2020).
- Zain Sheikh & Associates, Case Digest: Asma Jilani v Government of the Punjab (Pakistan Constitution Law, 2020).
1Asma Jilani v Government of the Punjab and another* (Criminal Appeal No 19 of 1972) PLD 1972 SC 139.
2 ibid 139 (bench composition).
3 ibid 139 (date of judgment).
4 ibid 162 (detention of Malik Ghulam Jilani under MLR 78).
5 ibid 163 (detention of Altaf Hussain Gauhar under MLR 78).
6 ibid 139 (respondents listed).
7 Constitution of Pakistan 1962, art 98.
8 Asma Jilani (n 1) 183 (Yahya Khan’s proclamation of Martial Law).
9 ibid 198 (Provisional Constitution Order 1969 and Presidential Order No 3 of 1969).
10 State v Dosso PLD 1958 SC 533.
11 Constitution of Pakistan 1962, art 98.
12 Dosso (n 10).
13 Asma Jilani (n 1) 185 (Ayub Khan’s lack of authority to transfer power).
14 ibid 204 (Presidential Order No 3 declared void).
15 Dosso (n 10)
16 Constitution of Pakistan 1962, art 98.
17 Hans Kelsen, Pure Theory of Law (University of California Press 1967).
18 Zain Sheikh & Associates, Case Digest: Asma Jilani v Government of the Punjab (2020) https://pakistanconstitutionlaw.com accessed 24 September 2025.
19 Asma Jilani (n 1) 243 (Yahya Khan declared a usurper).
20 Asma Jilani (n 1) 243 (overruling Dosso).
21 Asma Jilani (n 1) 204 (Presidential Order No 3 unconstitutional).
22 Constitution of Pakistan 1962, art 98.
23 Asma Jilani (n 1) 201 (detentions under MLR 78 held illegal).
24 ibid 206–207 (doctrine of necessity applied).
25 Constitution of Pakistan 1962, arts 12 and 16.
26 State v Dosso PLD 1958 SC 533.
27 Dosso (n 10).
28 Asma Jilani (n 1) 230 (Justice Yaqub Ali on meaning of “law”).
29 Asma Jilani (n 1) 206–207 (doctrine of necessity, condonation not legitimisation).
30 Constitution of Pakistan 1973, Preamble (Objectives Resolution).
31 Asma Jilani (n 1) 243.
32 Constitution of Pakistan 1973, art 6.
33 Record of Law, How to Write a Case Summary (2020) <www.recordoflaw.in> accessed 24 September 2025.
