P L D 1978 Quetta 199 (PLP)

Petitioner challenges the order of transfer of a Criminal case under sections 409, and 420, P. P. C. read with section 5(2) of the Anti-Corruption Act, 1947, from the Court of Special Judge Anti-Corruption, Khuzdar to that of Special Military Court No. 1, Quetta. The contentions raised by Mr. Hashmi the learned counsel .for the petitioner, are that the new forum, having a summary mode of trial would treat the petitioner harshly and that the petitioner has a vested right to be tried by the Special Judge, Anti-Corruption, before whom challan had already been submitted. Secondly it is contended that the order, transferring the case, does not conform to the provisions of para. 3 of the M. L. O. 4, inasmuch as the transfer order does not indicate if it is in the public interest to expeditiously dispose It is an accepted proposition of law that no person has a vest right in a certain procedure or a right of trial before a particular forum. But Mr. Hashmi the learned counsel for the petitioner has, while relying upon the cases of Asir-ud-Din Chawdhry (P L D 1953 F C 125), Reg v. Oolwlch Justices (1967 2 A C 1), Zafrullah v. Custodian of Evacuee Property (P L D 1964 S C 865) and Aertah's case (1968 A C 1921), contended that the petitioner's case has been adversely prejudice. In the first cited case of Asir-ud-Din the accused was charged with an offence under section 218, P. P. C. -triable exclusively by the Court of Session with the help of Jury. It may be mentioned that in those days in the district of Rajshahi, the Sessions trial used to take place with the aid of a jury. Magistrate proceeded to try the accused and convicted him under section 420, P. P. C. Their Lordships of the F. C. observed that the proceedings taken by the Magistrate, after framing of the charge, were void and without jurisdiction. It was, thus, on this ground of jurisdic tional error that trial was set aside. The learned counsel for the petitioner, however, particularly relies upon the observations of their Lordships that the appellant was "therefore seriously prejudiced by being deprived of a jury trial in the Court of Session". These observations have to be read subject to the ratio decidendi of the case as set out above. Privy Council ruling in Reg. v. Oolwich Justices again relates to a right of trial by Jury. This authority has also no relevancy to the facts of the present case, as the question of trial by a different forum was not examined. In Zafrullah's case their Lordships of the Supreme Court were dealing with the proposition, if after the promulgation of 1962 Constitution leave to appeal granted by the Supreme Court under the 1956 Constitution would abate or not their Lordships observed that once the leave was granted the right became a vested right in favour of the appellant and as nothing in the new Constitution could operate to take away a right so vested therefore such leave to appeal could not abate. In the last mentioned case of Armah the particular observation relied upon by Mr. Hashmi is as follows :

"But I would add that in general it appears to me to be very undesir able that a foreign Government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country." These observations, to me, have no relevance in the present case. The facts of the case were that Armah, a citizen of Ghana, was arrested in England under section 5 of the Fugitive Offenders Act, 1881, for alleged contravention of section 239 of the Ghana Criminal Code, 1960 for corruption and extortion as a public servant. He was awaiting return to Ghana. He applied for a writ of a habeas corpus, and alternatively for release under the Fugitive Offenders Act, 1881. According to section 10 of the Fugitive Offenders Act, that if, "having regard. . . to all the circumstances of the case", the Court comes to the conclusion that it would be "unjust or oppressive. . . to return the fugitive" his release may be ordered. It was contended that Armah's return to Ghana would be unjust and oppressive because he was liable to be tried either under the provisions of the Corrupt Practices (Prevention) Act, 1964 or in accordance with the Ghana Criminal Code, 1960. The Attorney-General of Ghana had appeared and given an undertaking that Armah would be tried under the latter law. But Lord Reid of Privy Council, in his judgment, did not consider it necessary to examine this point, because, the contentions raised under section 5 of the Fugitive Offenders Act had found favour with his Lordship, and therefore it was observed :- "On the view which I take of the case I find it unnecessary to consider the application of section 10 of the Act and this question does not arise." It was after these observations that the observations, relied upon by Mr. Hashmi, as quoted above, were made. Such observations, besides being abiter, are not by way of a rule of law, but are a pointer as to a matter of policy. In any case they are made in the context of the provisions of section 10 of the Fugitive Offenders Act, 1881, which prohibit transpor tation of fugitive offender if his return would be found to be unjust or oppressive, in the facts of a particular case. No parallel legal provision is cited before me. Mr. Hashmi further relies upon the observations of their Lordships of Supreme Court in Nusrat Bhutto's case (P L D 1977 S C 657), made at page

717. These observation are;

"Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977 make full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the Civil Courts regarding the same disputes. The necessity which justified the proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fail outside the purview of the Martial Law Authorities and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts." On the basis of these observations it is contended that cases which can be tried in ordinary Courts of the country cannot be transferred to Military Courts. But these observations relate to cases involving civil rights. They have no application in matters relating to criminal Offences. M. L. O. 4, as ammended by M. L. O. 37, deals only with the trial of criminal offences. This M. L. O. has been found by a Full Bench of this Court as good piece of legislation, in Khudiadad v. D. M. L. A. (P L D 1978 Quetta 177). Any transfer of a case, therefore, in pursuance of the provisions of M. L. O. 4, as amended cannot be claimed to have taken away any vested B right. Under such circumstances, therefore, the question of show-cause notice also does not arise. This brings me to the question if provisions of M. L. O. 4 as amended by M. L. O. 37, have been complied with by the transferring authority while transferring this case to a Special Military Court. The exception taken by Mr. Hashmi to the order of transfer is that it is silent if it is necessary in the public interest to expeditiously dispose of this case. Expeditious disposal of cases is always for the good of the general public. It a primary requirement of administration of justice that cases should be expeditiously disposed of. Any order, passed for expeditious disposal of a case would always be in public interest. The absence of the words "in public interest" in the order of transfer, therefore, does not render such order to be beyond the scope of para. 3 of M. L. O.

4. No exception therefore can be taken on this count. The second ground taken by the learned counsel in this behalf is that the opinion of M. L. A. as required by para. 5 of M. L. O. 4 is not a subjective opinion and is always open to review by the superior Courts. In this connection the learned counsel has relied upon the case of Liaquat Ali v. Government of Sind (P L D 1973 Kar. 78). It was a case of detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. Their Lordships of the Sind & Baluchistan High Court while making a through review of S. I. C. authorities on the question of `satisfaction' of the detaining authority, have held the Court "must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention". On the basis of this rule, the learned counsel for the petitioner before me contends that transferring authority under M. L. O. 4 has to place material before the Court in order to satisfy itself that there was ground enough to hold the opinion necessary for the order of transfer. The ruling relied upon has no relevance to the facts of the present case. Firstly because it deals with a detention matter. Secondly there the question of satisfaction of the detaining authority is involved, which is in contradistinction with the `opinion' which is the basis of transfer of a case in terms of M. L. O.

4. And finally the case of Liaqat Ali had come before their Lordships of Sind & Baluchistan High Court after the final order of detention had been passed. Finally the contention raised is that the order of transfer is ma-la fide, inasmuch as the petitioner had challenged certain actions of Martial Law Authority through Constitutional Petition No. 220 of 1978. It is contended on behalf of the petitioner that after that petition was admitted by this Court certain subordinate Officers of the Zonal Martial Law Administrator, namely Major Iftikhar Baig and Col. Aziz-ul-Malook threatened the petitioner that he would be taught a lesson. It is on the basis of these allegations that the act of transfer of the case to a Martial Law Court is contended to be mala fide. The authority of transfer of cases, under M. L. O. 4, vests in the Zonal Martial Law Administrator. Any act attributed to officers subordinate to the Martial Law Administrator cannot form the basis of an allegation of mala fide against the Martial Law Administrator himself. In order to contend mala fide it is necessary to allege against the bona fides of the transferring authority. Nothing of that sort is alleged in the petition. In view of the above discussion I find no force in this petition which is dismissed in limine. S. Q. Petition dismissed.