Dosso was a resident of the Loralai tribal district who committed a murder. He was arrested by the Levis Forces who handed him over to the tribal authorities and was eventually trialed by Loya Jirga. He was charged with murder under section 11 of the FCR 1901 and was convicted by the Loya Jirga. Dosso's relatives challenged the decision in the Lahore High Court. The High Court considered the case according to the 1956 constitution of Pakistan and ruled in favour of Dosso. In its ruling, the High Court declared the FCR was repugnant to the constitution, specifically that Dosso was entitled to equality before law under articles 5 & 7 of the constitution. The Loya Jirga's decision was therefore quashed. The Federal Government of Pakistan filed an appeal in the Supreme Court of Pakistan and the High Court decision was overturned.[3][4]
Hearing in High Court
Relatives of Dosso filed a petition against his conviction by the Loya Jirga in the West Pakistan High Court (Lahore High Court), arguing that he was a citizen of Pakistan and hence must be tried according to Pakistani laws, and not the FCR. Articles 5 and 7 of the Constitution of Pakistan of 1956 stated that all citizens were equal and were to receive a fair trial under the law. Dosso's relatives also challenged the relevant provisions of FCR as unconstitutional under against Articles 5 and 7.
High Court judgment
The High Court decided the case in favour of Dosso and declared the FCR as unconstitutional.[1]
After three days of martial law, the Laws (Continuance in Force) Order 1958 came into effect, replacing the constitution but continuing all other laws and restoring the jurisdiction of all courts.[5]
Impacts of Martial law on the case
Martial law impacted the case significantly and raised the important technical legal point that if the Supreme Court maintained the decision of Lahore High Court, it followed that the old constitution was still in force since that decision was decided under articles 5 and 7 of the Constitution of Pakistan 1956. It was also argued that if this was the case, and the old constitution could still be invoked, then the status of the martial law regulations and the Laws (Continuance in Force) Order 1958 could also be challenged.
The judgment legitimized the martial law of 1958 as a bloodless coup and stated that since it was not resisted or opposed by the public, this implied that the public accepted the legitimacy of the new regime.[6] According to the Supreme Court, the Laws (Continuance in Force) Order 1958 was valid and abrogated the old constitution. Furthermore, it was held that since the constitution was abrogated, but all the older laws remained in force, this meant that FCR 1901 could not be unconstitutional and was therefore still in force and the decision of Loya jirga to convict Dosso was lawful.
The Supreme Court's judgment in Dosso case greatly impacted the politics in Pakistan and opened the door for the legitimization of three subsequent martial laws, resulting in CMLA Ayub Khan ruling the country for the following decade. The decision also disturbed ties between East and West Pakistan which were eventually settled by establishing parity between both wings and incorporating both Urdu and Bengali as national languages. The decision of the Supreme Court also validated the British implied legacy of Frontier Crimes Regulation ("Black Law") which continued to be enforced in the tribal region till 2018.[8]
Independence of Judiciary
The decision of the Supreme Court of Pakistan has been criticized for undermining the independence of the judiciary and the democratic process by validating the suspension of the constitution and the imposition of martial law.[9]
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