1979 P Cr (PLP)

(b) Martial Law Order, 1977 [C.M.L.A.'s]- -- No 4 [as amended by Martial Law Order, 1977 [C.M.L.A.'s] No. 371-Jurisdiction-Case referred to a Special Military Court by Martial Law Administrator of Province under M. L. O. 37-Case, held, competently withdrawn from ordinary Court of law and its trial by Special Military Court valid and ordinary Court could not have jurisdiction to interfere.-[Jurisdiction-Transfer of criminal cases]. M. Iqbal Bhatti for Petitioner. Rashid Aziz, A. A. G. for Respondent, A case was registered against the petitioner under section 307/34, P.P.C. Since the injured person later on died therefore, the offence was converted into section 302,134, P.P.C. The said case has now been trans ferred for regular trial to a Military Court and Martial Law Regulation No. 8 has also been added to the aforesaid offences as an unlicensed arm has been recovered from the petitioner.

2. It is contended by the learned counsel that since the offence mentioned above is not covered by any Martial Law Regulation/Order, therefore, in view of the judgment pronounced by the Baluchistan High Court in Constitutional Petition No. 279 of 1978 Muhammad Niaz v, Martial Law Administrators and others (P L D 1979 Quetta 179) the proceedings pending before the Military Court may be stayed. In that case the petitioner before the Baluchistan High Court was facing trial before a Special Judge under the Criminal Law (Amendment) Act, 1958. It was contended that since the Special Court had exclusive jurisdiction to try the schedule offences, which were not covered by any Martial Law Regulation or Order, therefore, the Military Court had no jurisdiction to try the said offences, In the operative part of the judgment it was held that the trial of citizens for offences other than the offences created by Martial Law Regulations or Orders cannot take place before the Military Courts unless such offences are committed While resisting the Martial Law itself. It was further held that the provisions of the Criminal Law (Amendment) Act, were of over riding nature and the provisions of Martial Law Order No. 4 as amended by Martial Law Order No. 37 were to give way to the provisions of the Act. The tenor of the whole judgment shows that trial of the scheduled offences cannot be held by the Military Court as they are not covered by any Martial Law Regulation or Order.

3. The above position does not obtain in the present case. The petitioner has been charged under section 302/34, P.P.C. and M.L.R.

8. Prima facie the Military Courts have got jurisdiction to try such offences as they relate to law and order situation and maintenance of public tranquillity. As held by the Supreme Court Martial Law has been imposed for certain specific purposes such as Maintenance of law and order, public good and restoration of democratic process. Since the aforesaid offence directly relate to such situation, therefore, prima facie the Military Courts have jurisdiction in the matter.

4. However, it will be open to this Court at the conclusion of the trial to see as to whether there was any legal necessity for such trial by the Military Court. Such necessity cannot be ascertained at the stage as the prosecution has not produced any evidence bringing home the "legal necessity for trial by the Military Court.

5. Further it is admitted that the case has been referred to a Special Military Court by an order passed by the Martial Law Administrator Punjab under Martial Law Order No.

37. In the circumstances the case having been competently withdrawn from the ordinary Court of law it] trial by the Special Military Court will be valid and the ordinary Court will have no jurisdiction to interfere at this stage. Reliance in this respect can be placed upon Rana Mohammad Amin v. The State (1978 S C M R 420). In that case' bail application was moved in the High Court while the trial was pending before the Special Military Court. It was held that since the case stood competently transferred to Special Military Court from the ordinary Court, therefore, the Supreme Court had no jurisdiction to grant bail to the accused. 6 In view of the above, writ petition having no force is hereby dismissed in limine. Petition dismissed.