P L D 1977 Supreme Court 52 (PLP)

MUHAMMAD GUL, J.-These twenty-two petitions which proceed on similar facts and involve a common question of law, were heard together and are disposed of by this judgment. Of these petitions six namely, petitions Nos. 357/1976, 1153/1976, 192/1976, 113/1975, 115/1975 and 1119/1975 are beyond time and the petitioners therein have prayed for condonation of delay. They have been convicted for capital crimes and therefore, consistently with the practice of the Court, we condone the delay and proceed to determined these petitions alongwith the other sixteen petitions, on merits. The petitioners in all these cases were accused of serious violent crimes committed on different dates and at different places. The cases against them were at different stages of investigation, enquiry or trial during the Martial Law period 1969-1972, when by various orders by the Zonal Martial Law Administrator, made under Martial Law Regulation No. 42, their cases instead of being tried by the ordinary criminal Courts were transferred to the Special Military Courts established under Martial Law Regulation No.

2. Under this Regulation Special Military Courts had the same powers and followed the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 (Act XXXIX of 1952) (hereinafter called the Act), subject to certain modifications stated in the Regulation. The trials in all these cases before the Special Military Courts were concluded and the findings of guilty and sentences were recorded before the 21st April 1972. However, vide section 119 of the Act these findings and sentences remained ineffective until confirmed by the appropriate authority which in the instant cases was the Chief Martial Law Administrator in the cases of death sentences and the convening authority in other cases. With the commencement of the Interim Constitution and the revocation of Martial Law as from midnight on the 21st April 1672, the Special Military Courts ceased to function and the Chief Martial Law Administrator also disappeared. To avoid any hiatus in respect of these cases, the President on the 18th April 1972 issued the Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 19?2) to provide "for the disposal on or after the appointed day, of cases which may be pending before the Martial Law Authorities immediately before that day". The order actually took effect from the appointed day which was defined in Article 2 to mean the 21st April 1972. By Article s all cases "pending immediately before the appointed day before a Special Military Court" stood transferred to the ordinary criminal Courts. Vide Article 4 ibid cases "decided and disposed of by a Special Military Court" immediately before that day and pending for confirmation were to be "dealt with and disposed of" by the President if it was a case of death sentence, and by the Governor of the Province in other cases. Pursuant to Article 4, the findings and sentences recorded by the Special Military Courts before the appointed day, in these cases were forwarded to the President or as the case may be the Governor for confirmation. In some of them cases, the sentences have since been confirmed and duly promulgated though. not yet executed. In others, the sentences have been confirmed but not promulgated under rule 58 of the Pakistan Army Act Rules, 1954 (hereinafter called the Rules). In yet other cases the confirmation is still awaited. In all these cases, the petitioners challenged in the High Court in its, writ jurisdiction, the transfer of their cases from the ordinary Courts to the Special Military Courts.. They also challenged the constitutionality of P. O. 14 of 1972 and the authority of the President or as the case may be, the Governor under Article 4, to confirm the findings and sentences recorded by the Special Military Courts and also the validity of confirmation of that findings and sentences of the Special Military Courts on a number of ground which will be noticed in the sequel. A Division Bench of the High Court by its judgment dated '22nd September 1975 after exhaustively dealing with the various grounds urged dismissed all the writ petitions and the petitioners in various cases now seek leave to appeal. In view of this Court's recent judgment in Sheikh Karamat Ali v. The State P L D 1976 S C 476 the petitioners' learned counsel did not impugned the constitutionality of P. O. 14 of 1972 and it was conceded that the Order survived the restoration of Martial Law and as from the appointed day took effect "existing law" within the meaning of clauses (1) and (2) of Article 280 o the Interim Constitution and is now preserved in force by the 1973 Constitution. Similarly, there is no substance in the argument that until the confirmation of finding; and the sentences of the Special Military Courts, the proceedings must be treated as "pending" so as to fall within the ambit of Article

3. It cannot be gainsaid that so far as the Special Military Courts were concerned, they had done all what they were required to do under G the Act before these Courts ceased to function with the revocation of Martial Law. Indeed, it was held by this Court in Ex-Captain Muhammad Akram Khan v. Pakistan P L D 1969 S C 174 that after a Special Military Court has rendered its findings and recorded sentence and forwarded the case for confirmation it becomes functus officio. This view was followed in the case of Sheikh Karamat Ali. Nevertheless, in support of these petitions, it was argued by the petitioners' learned counsel, that the withdrawal of the cases against the petitioners from the ordinary Courts for trial by the Special Military Courts was ultra vires and at the same time mala fide. The argument was that Martial Law Regulation No. 3 as reconstituted by Martial Law Regulation No. 45 preserved the jurisdiction of the ordinary Courts as by law established in relation to offences other than those created by Martial Law Regulations, or connected with the then disturbances. It was conceded that by Martial Law Regulation No. 42, power was given to the Zonal Martial Law Administrators to direct transfer of cases from ordinary criminal Courts to Special Military Courts. But it was contended that this power was to be exercised subject to the provisions of Martial Law Regulation No. 3 which preserved the jurisdiction of ordinary criminal Courts except in the two categories of offences namely, (i) offences created by Martial Law or (ii) offences connected with the then disturbances. It was argued that the inclusion of charge under clause (2) of Martial Law Regulation No. 16 was a mere device to make the petitioners amenable to the jurisdiction of the Special Military Courts. It was also stressed that the offences alleged against the petitioners squarely fell under the Pakistan Penal Code and therefore in all these cases, there was colourable exercise of jurisdiction by the Military Courts. Learned counsel sought support for this argument from the case of Mir Hassan v. The State P L D 1969 Lah.786 by which an order by the Zonal Martial Law Administrator directing the transfer of certain criminal cases concerning offences of fraud etc. was struck down by a Full Bench on the ground that no Martial Law offence was alleged against him and the co-accused, and that the object of Martial Law Regulation No. 42 as reconstituted by Martial Law Regulation No. 45 was not to transfer cases under ordinary criminal law to the Special Military Courts. As rightly pointed out by the Division Bench in the High Court, the .argument ignores the all-embracing saving provision in clause (2) of .Article 281 of the Interim Constitution which was not in the field when . Mir Hassan's case was decided. It reads "All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty-fifth day of March, 1969, in exercise of the powers derived from any President's Order, Martial Law Regulations, Martial Law Orders, enactments. notification, rules, orders or bye-laws, or in execution of any orders made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done." The same provision is repeated in clause (2) of Article 269 of the 1973 -Constitution. The scope of these provisions was considered in Sh. Karamat Ali's case, and it was ruled, that unless an act by a Martial Law Authority was ab initio without jurisdiction or was male fide it would be fully protected by the above provisions. It is difficult to imagine how it is open to the -petitioners to take out of the above protective umbrella, the various orders made by the Zonal Martial Law Administrator directing the transfer of the ,.cases against them to the Special Military Courts. As to the allegations of male fide and the applicability of MLR No. 16(a), it appears that in all cases, the petitioners were accused of violent crimes and therefore, were. Inter alia, charged for offences under clause (s) of Martial Law Regulation No.

16. By this an act committed to the prejudice of "good order or the public safety", was made a Martial Law offence punishable with imprisonment extending to 14 years. To circumvent the above provision, learned counsel sought to argue that the incidents alleged against the petitioners were by and large, the result of private vendetta which cannot by any stretch be deemed to have prejudicially affected "good order or public safety". The argument is devoid of substance, Where violent crime is committed, it creates alarm in the society. Again in Borne of the cases the petitioners indiscriminately used fire-arms in an orgy of wanton killing and yet in another case, a passenger bus was looted killing those who dared to offer resistance. This certainly creates terror affecting the general morale of the citizenry inhabiting the area, where the offence is committed. Besides, in the absence of any specific allegation to sustain the plea of male fide, the same cannot be entertained. See Iftikharuddin v. Mohammad Sarfraz PLD1961SC

585. That ease was a sequel to the seizure of certain shares in a Company under the Security of Pakistan Act, 1952. The dispute concerned the resale of the seized shares at lesser value after cancellation of the earlier sale, which was characterized as mala fide. Of late, unfortunately there is growing tendency to raise the plea rather recklessly. Nothing turns on the argument that where two procedures relating to the administration of criminal justice are equally available, that which -more beneficial or liberal and in conformity with the general norms should be adopted. There is no set pattern or norm for trial of cases by Special Courts exercising special jurisdiction under special laws and following ..simplified procedure from that followed by the ordinary Courts are not unknown in many a modern country. There are and have been many such ,Jaws in force in the Sub-Continent. See for instance, the Punjab Murderous Outrages Act 1867 ; the Bengal Suppression of Terrorist Act, 1932 ; Enemy Agents Ordinance 1923 ; the Criminal Law Amendment Act 1958 ; the' Criminal Law Amendment (Special Court) Ordinance 1968 ; and the W. P. Criminal Law Amendment Act, 1963. The Constitution by Article 212 also provides for the establishment of Administrative Courts and Tribunals of exclusive jurisdiction in relation to matters specified therein which would have normally fallen within the jurisdiction of the ordinary Courts. The Pakistan Army Act and the Rules framed thereunder, on the other hand lay down an elaborate procedure for the trial of cases by various types of Courts Martial. The members of these Courts are required to take oath'' before they from the Court and bear witnesses viva voce, and who are cross-examined by counsel, if any. The accused has the right to object to the constitution of the court before the commencement of trial and the matter is decided by the majority vote. It is true that under rule 145 of the Rules, a Court Martial is not required to record reasons in support of its finding of guilty on any charge. This is perhaps because there is no regular appeal. But as pointed out earlier, vide section 119 of the Act, the findings' and sentences remain invalid unless confirmed by the appropriate confirming authority. Section 124 of the Act empowers the confirming authority "to mitigate, remit or commute sentences" in proper case. Section 126 ibid also provides for a revision by the confirming authority against the sentences or findings of the Court Martial. These provisions in our opinion arm ample safeguards against any arbitrary finding by a Court Martial. However, that may be, the saving provisions in the Constitution mentioned above would also fully extend to the findings and the sentences of the Special Military Courts recorded prior to the appointed day. The main argument against confirmation by the President or as the -case may be, the Governor however, was that the confirmation was not by means of a speaking order and no opportunity of personal hearing was givens to the petitioners in these cases to show cause against confirmation. It was argued that after the revocation of Martial Law, the confirmation of death sentences by the Chief Martial Law Administrator as envisaged by Martial Law Regulation No. 2 or as the case may be, by the convening authority under section 123 of the Act being no more available, the confirmation of proceedings under Article 4 of P. O. 14 of 1972 must partake of the nature of proceedings under section 374, Cr. P. C. which required a., proper hearing of the cases with full opportunity to the accused to show cause against confirmation. It was stressed by learned counsel that non-compliance of the requirement of section 374, Cr. P. C. rendered confirmation. by the President or the Governor coram non judice. A comparative reading of Articles 3 and 4 of P. O. 14 of 1972 furnishes a complete answer to the argument of learned counsel. The Articles are : "3. (1) Every case pending immediately before the appointed day before a Special Military Court or Summary Military Court shall on the appointed day stand transferred to the criminal Court which would have bad jurisdiction to try the offence constituted by the facts of that, case under the ordinary law. (2) A case transferred to a criminal Court under clause (1) shall be" tried by it in accordance with the procedure applicable to the trial of such case under the ordinary law.

4. Every case which, having been decided and disposed of by a Special Military Court is, immediately before the appointed day, pending; for confirmation, and every petition or application for review pending on such day, shall on or after the appointed day be dealt with and disposed of by the President of Pakistan, if the sentence is one of death, and in all other cases, by the Governor of the Province concerned." Article 3 deals with the cases which were pending before the Special Military Courts on the appointed day but in which no findings and sentences had been recorded. Under this Article all such cases stood automatically transferred to the ordinary criminal Courts "for trial in accordance with the procedure applicable to the trial of such a case, under the ordinary law." .Ordinary law signifies, the Criminal Procedure Code, 1878. On the other hand Article 4 provides for cases which have been "decided and disposed of" by a Special Military Court in contradistinction with the cases which were still pending for decision and sentence. It is true that Article 4 does not go so far as to specify the procedure to be followed for confirmation proceedings. But does it inevitably or even reasonably follow, that the provisions of the Code of Criminal Procedure, would automatically become applicable to confirmation by the President or the Governor ? For a proper answer to the question, it should be kept clearly in view, that initially all these cases were competently withdrawn from the jurisdiction of the ordinary Courts and entrusted to the Special Military Courts who followed their own procedure as laid by the Act and the Rules framed thereunder. Not only that : the trials in all these cases were completed and findings and sentences recorded. Even the requirement of confirmation in all manner of cases and not merely in the cases of death sentences is peculiar to the procedure prescribed by the Act and the Rules framed thereunder. Nay: even a minor sentence of simple fine remains ineffective until duly confirmed by the appropriate confirming Authority (See section ' 19). Therefore, Article 4 is essentially a transitional provision, designed to bring to proper culmination, all cases which had been tried by the Special Military Courts and in which findings on charges and sentences have also been recorded. It hardly stands to reason to contend that findings on charges and sentences having been recorded under a procedure peculiar to a Martial Lair Court, the confirmation proceedings shall fall to be dealt with under the Criminal Procedure Code without any express provision to that effect as in Article

3. The absence of any such indication in Article 4 leads to the reasonable conclusion that apart from designating new authorities under the new dispensation, the procedure for confirmation was to remain the same as before. This is further supported by the fact that Article 5 ibid, expressly provided for a petition by a person who feels aggrieved by the confirmation order, for the annulment of the same or the commutation of the sentence. If the intendment had been that these cases were also to be governed by the ordinary procedure followed by the criminal Courts, then there was hardly any need to provide separately for the annulment or the commutation of sentence for an appeal would be available under the normal law to any such aggrieved person. This also answers the further argument on behalf of the petitioners, that in the absence of any provision similar to section 124 of the Act in P. O. 14 of 1972 to empower the confirming Authority "to =mitigates and commute sentences" it must be inferred that, the confirmation proceedings dealt with under section 374, Cr. P. C. which required proper hearing. The argument ignores the fact that the confirming authority is not bound to confirm the findings and sentence in every case, referred to it. It may refuse confirmation ,In a proper case, in which ease the findings and sentence will become invalid. If the confirming authority can grant full relief by withholding confirmation, it may on general principles allow partial relief by way of commutation or mitigation. Indeed, the President commuted death sentences of the petitioners in Petition No. 1119 of 1975 to life imprisonment. Thus there can be no manner of doubt, that while the confirming authority may withhold confirmation under Article 4, it may as well confirm the findings or sentences with such modification as the justice of the case may require. This is implicit in the transitional scheme brought in force by P. 0. 14 of 1972. It was also contended by learned counsel that the powers of the President under the Interim Constitution when P. O. 14 of 1972 took effect were materially different from the powers of the President under the Constitution of 1973. It was submitted that while under the Interim Constitution, the President acted in his individual judgment, under the present Constitution vide Article 48 in the performance of his functions, he is to act in accordance with the advice of the Prime Minister, which is binding on him. Because of this variation in the powers of the President under the 1973 Constitution, it is contended that in effect the President is no more the repository of the power for confirming sentences of death and that in essence the power is exercised by another authority viz. the Prime Minister whose advice is binding on the President. On this reasoning it was sought to be argued that the President has under the new dispensation, become incapable of discharging his duty under P. O. 14 of 1972, and therefore, the entire scheme of Article 4 stands nullified. This argument does not take note of the provisions of Article 268 of the Constitution which, inter alga, provides for continuance in force subject to adaptation of all existing laws to bring them into conformity with the provisions of the Constitution. The Constitution is the Supreme law of the land and all existing and future laws will have to conform to its provision to make them enforceable. It is not controverted that at the commencement of the Constitution of 1973, P. O. 14 was "existing law".' Therefore, vide clause (3) of Article 26$, it has to be read subject to necessary adaptation so as to bring it "into accord with the provisions of Constitution." K Clause (6) imposes a further duty ors Courts to read into an existing law, the necessary adaptation, notwithstanding that no adaptation has in fact been made in such law. Because of this provision in the Constitution, the power initially conferred on the President under Article 4 of P. O. 14 of 1972 shall under the Constitution, be read as exercizeable in accordance with the advice tendered by the Prime Minister under Article 43 of the Constitution It is therefore, wrong to suggest that the transitional scheme underlying P. O. 14 of 1972 has become unworkable since the commencement of the Constitution. The above contentions were common to all the petitions. Dr. Khalid Ranjha, who appeared for the petitioners in Petitions Nos. 1070,1153 and 1154, raised an argument affecting the constitution of the Special Military Court which tried the petitioners in these three cases. It was contended that the requirement of section 104 of the Act was not satisfied. The action inter alts, requires a Martial Law Court to enquire from the accused, "whether he objects to being tried by any officer sitting on the Court." Learned counsel submitted that no such objection was invited from the petitioners in these three cases and further that one of the members of the Court also acted as interpreter. It was contended that the functions as a member of the Court and duties of an interpreter cannot be combined in a single person for under section 104 of the Act read with rules 36 and 37 of the Rules separate oaths are prescribed for the two. This according to learned counsel signified two distinct functionaries whose duties in relation to a particular trial by a Court Martial may not be quite in harmony. On these premises it was sought to be argued that the trial of the three petitioners was vitiated. Learned counsel however, conceded that the member of the Court appointed as interpreter subscribed to the oath as such in addition to his oath as member of the Court. Learned counsel however, was not in a position to say, whether in the course of trials of the petitioners in these three cases, there arose any occasion, for the interpreter to interpret the evidence of any witness appearing before the Court. Nevertheless, it was argued that defect concerned the Constitution of the Court which vitiated the proceedings, whether or not the member concerned acted as the interpreter. The point was not taken before the High Court and it would be wrong to suggest that it is a pure question of law and therefore can be permitted to be raised for the first time in this Court. Taking of oath as an interpreter, by a member of the Court, who had no occasion to interpret the evidence of a witness, cannot per se vitiate the proceedings or affect the constitution of the Court, particularly when the Act or the Rules do not expressly prohibit the combination of the two functions in a single person. An interpreter is appointed either by the convening officer under rule 28(3) before the commencement of the trial, or at any time during trial under rule 76, if the Court thinks it necessary so to do or if the prosecutor or the accused so requests. This clearly shows that provisions bearing on the subject, are merely enabling to provide for certain exigency if and when it arises. A fortiori the matter is not germane to the constitution of the Court as canvassed by learned counsel. The only requirement under rule 76(1) is that the interpreter must be "an impartial person". It would be fantastic to suggest that a person appointed as a member of a Court Martial, becomes biased and therefore, is disqualified for appointment as interpreter. It is equally wrong to suggest, that there would be any conflict of duties as a member of the Court and being an interpreter at the same time. In both the positions he is to act impartially. However, that may be, it is not suggested that the petitioners in these three cases were in any manner prejudiced by the appointment of a member of the Court to be also an interpreter. In the absence of any such plea rule 132 amply saves the situation. It reads : "Whenever it appears that a Court Martial had jurisdiction to try any person and made a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the Court Martial had jurisdiction to pass thereon may, if confirmation is necessary, be confirmed, and shall, if so confirmed, and in all cases where confirmation is not necessary, be valid, notwithstanding any deviation from these rules, or notwithstanding that the charge sheet had not been signed by the commanding officer or the convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer, or notwithstanding any defect or objection technical or . other, unless it appears that any injustice has been done to the offender and where any finding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer; but nothing in this rule shall relieve any officer from any responsibility for any wilful or negligent disregard of any of these rules." Vide section 176 of the Act the rule has the effect as if enacted in the Act itself. The recent case of F. B. Ali v. State P L D 1975 S C 506 is also in point. In that case a retired army officer alongwith others was tried by a Court Martial on charges under section 59 of the Act and section 121-A, P. P. C. The Court found him guilty on both the counts but awarded one sentence of transportation for life apparently because of the requirement of rule

54. The convict challenged in writ jurisdiction of the High Court, his conviction on the ground that the Court Martial had no jurisdiction to try him. Having failed in the High Court, in the appeal to this Court, it was held that the convict was properly tried by the Court Martial for the offence under section 59 of the Act, but the Court Martial had no jurisdiction to try him for the offence under section 121-A, P. P. C. Nevertheless, the appeal was dismissed. It was observed, inter alia, in that case : "There can be no doubt that if a Tribunal or a Court acts wholly without jurisdiction, its action would be a nullity but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction. If it is possible to separate what has been done with jurisdiction from that which has been done without jurisdiction without any prejudice to anyone, then what is done with jurisdiction cannot be invalidated or declared null arid void, at least, in the writ jurisdiction." It was also held in that case, that where a Court tries a particular case with jurisdiction, ordinary Courts of superior jurisdiction will not interfere in exercise of their power of judicial review merely on the ground that some rule of procedure was not followed. In Petition No. 638 of 1976, Mr. Zafar Pasha, learned Advocate for the petitioner contended that the incident out of which the petitioner in that case and the co-accused with him (petitioners in Petition No. 118 of 1975) viere tried and found guilty by the Special Military Court, took place on 17-9-1968. But that the case was sent to the Court in July 1971 and the accused were found guilty and sentenced in September 1971 after three years of the incident having taken place. Learned counsel pleaded bar of limitation under section 91 of the Act. The section reads : "(1) No trial by Court Martial of any person subject to this Act for any offence, other than an offence of desertion or fraudulent enrolment or any of the offences mentioned in section 31 or section 40, shall be commenced after the expiration of three years from the date of such offence and no such trial for an offence of desertion, other than the desertion on active, service or fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the Pakistan regular forces. (2) In the computation of the period of three years specified in subsection (1) any time spent by the person in question as a prisoner of war, or in evading arrest, shall be included." The argument proceeds on the assumption that petitioners concerned by becoming subject to the jurisdiction of the Special Military Court, must deemed also to have become "subject to the Act". The assumption is wholly unwarranted. Merely because the Special Court for the trial of the petitioners is to follow the procedure laid down in the Act and the Rules framed thereunder does not make them "subject to the Act" itself? Thai provision plainly has reference to section 2(1) of the Act, which defines with great particularity various categories of "persons subject to the Act." It reads : "The following persons shall be subject to this Act, namely ; (a) Officers, junior commissioned officers and warrant officers of the Pakistan Army ; (b) persons enrolled under the Indian Army Act, 1911 (VIII of 1911), before the date notified in pursuance of subsection (2) o' section 1, and serving with the Pakistan Army, immediately before that date, and persons enrolled under this Act ; (c) persons subject to the Pakistan Navy (Discipline) Act, 1934 (XXXIV of 1934), "or the Pakistan Air Force Act, 1953 (VI of 1953), when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Central Government may direct ; (d) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army. (e) Persons not otherwise subject to this Act, who are accused of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or (ii) having committed, in relation to any work of defence, arsenal, Navy, Military or Air Force established or station, ship or aircraft or otherwise in relation to the Naval, Military, or Air Force of Pakistan, an offence under the Official Secrets Act, 1952" It is not contended that the petitioners are covered by any of the above categories or have teen otherwise under military discipline or duty at any time. It is indeed wrong to imagine that merely because the Court trying them is to follow the procedure laid down in the Act, the petitioners became subject to the Act. They are under no liability to be called for military duty, nor they are in any way under military discipline. They were tried as ordinary citizens though under a special procedure by a special Court. Ordinarily, law of limitation does not apply to criminal cases and therefore, the petitioners are not within the exception relied upon by learned counsel. For all the foregoing reasons there is no merit in these petitions, which are hereby dismissed. S. Q.??????????????? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Petitions dismissed.