History and importance of Dosso case in Constitutional history of Pakistan

1. z
Dosso Case
State Vs Dosso (1958)

2. z
Facts:
Murder in loralai District of Baluchistan
Dosso was arrested by Tribal Authorities and handed
over to Council of Elders/ Loya Jirga
Council of Elders convicted him under Section 11 of
Frontier Crimes Regulation (FCR 1901)
He was sentenced to death (Death Penalty)

3. z
Petition
 Relatives of Dosso challenged the FCR 1901 regulations in West
Pakistan High Court (Now Lahore High Court)
 Challenged that FCR 1901 repugnant to Article 5 (Equality before
Law/Equal Protection of Law) and also Article 7 (Right to council) of
1956 Constitution

4. z
Judgement of High Court
 Decided case in favor of Dosso
 Declared the provisions of FCR 1901 against 1956
Constitution
 Also declared the decision of Council of Elders null and
void
 This judgement questioned the validity of FCR (then its
old decisions would also be null and void if relevant
provisions of FCR are null and void)

5. z
Appeal in Supreme Court
 Federal Government filed an appeal in Supreme Court against
the verdict of High Court
 Court decided to give verdict on 13th Oct. 1958
 Vicissitude in Political arena as on 7th Oct. 1958, Iskandar
Mirza(President of Pakistan) declared Martial Law and
appointed Ayub Khan as Chief Martial Law Administrator
 Central and Provincial Legislative assemblies dissolved and
1956 Constitution was abrogated
 11th Oct. 1958, Laws Continuance in Force Order was
enforced as a New Legal Order(replacing Constitution)

6. z
Decision of
Supreme
Court
 Held that since Art. 5 of late Constitution had
now disappeared from New Legal Order by
reason of Article IV of the Laws Continuance in
Force Order, 1958, the convictions recorded
and the references made to the Council of
Elders were good.
 Gave decision totally against verdict of West
Pakistan High Court
 Court upheld the punishment of Dosso
 Decision based on Kelson’s theory of Legal
Positivism

7. z
Kelson’s Theory
of Law
If there is any change in Constitution or Government
and there is no resistance/opposition to that change
then this change will be recognized as Successful
Revolution
A victorious revolution or a successful coup d' E' tat is
an internationally recognized legal method of changing
a Constitution.
And the 1958 Martial Law was legalized under the chief
justiceship of Justice Munir
Justice Munir also Stated that Law Continuance in
Force Order 1958 is now New Legal Order
Validity of all laws and correctness of judicial
decisions would be calibrated according to this New
Legal Order