P L D 1959 (W (PLP)

Aziz Din was sentenced to one year's rigorous imprisonment by the Additional District Magistrate, Lahore, for the violation of clause (4) of Martial Law Order No. 11, issued by the Martial Law Administrator, West Pakistan, Zone B, which required that a price list must be exhibited by every shopkeeper. Aziz Din presented an appeal to the Sessions Judge, Lahore, who, by his order dated the 9th of December 1958, rejected it on the ground that he had no jurisdiction to hear the appeal. On the 5th of January 1959, a revision petition was filed in this Court against the order of the Sessions Judge and on the next day the petition was admitted to a hearing by my brother Abdul Hamid, who granted bail to Aziz Din.

2. An order similar to the one mentioned in the last paragraph was passed by the Additional District Magistrate, Lahore, against Muhammad Din for the contravention of clause (4) of Martial Law Order No. 11 issued by the Martial Law Administrator, West Pakistan, Zone B, Muhammad Din also presented an appeal to the Sessions Judge, Lahore, who, by his order dated the 9th of December 1958, rejected it on the ground that he had no jurisdiction. Muhammad Din also presented a revision petition to this Court which was registered as Criminal Revision No. 12 of 1959. This petition was heard along with Criminal Revision No. 11 of 1959 presented by Aziz Din and was admitted to a hearing on the 6th of January 1959 on which date my learned brother Abdul Hamid granted bail to Muhammad Din.

3. On the 21st of January 1959, Mr. Jamil Husain Rizvi, Advocate‑General, West Pakistan, presented petitions to this Court for cancellation of the bail granted to Aziz Din and Muhammad Din on the ground that the order of this Court granting bail was without jurisdiction because neither an appeal nor a petition for revision was competent against the order of the Additional District Magistrate, Lahore, as he had punished Aziz Din and Muhammad Din for a breach of a Martial Law Order. These applications were considered by my learned brother Abdul Hamid, who rejected them on the ground that the main cases were to be heard at an early date and no useful purpose will be served by the cancellation of the bails. My learned brother Abdul Hamid expressed the view that as the point involved in the cases was of some importance, they should be disposed of by a larger Bench, but as my Lord th& Chief Justice did not agree to the cases being heard by a larger Bench, they have been placed before me for disposal.

4. In coming to the conclusion that no appeal to him lay in the cases the learned Sessions Judge relied on Martial Law Order No. 10 issued by the Chief Martial Law Administrator on the 18th of October 1958 and published in the Extraordinary issue of the Gazette of Pakistan dated the 22nd of‑ October 1958. This Martial Law Order reads as follows‑ "Proceedings of cases tried under the Martial Law Orders and Regulations by the Criminal Courts after confirmation by the Administrators will be forwarded to Judge Advocate‑General, General Head‑quarters, Rawalpindi, for final review." The contention of the, learned Advocate‑General was‑ that Martial Law Order No. 10, reproduced above, barred an appeal against an order of a Criminal Court which had disposed of a case of contravention of a Martial Law Order or a Martial Law Regu?lation. Mr. Mahmud Ali, Advocate, who appeared for the petitioners in both the cases, however, contended that as the Martial Law Order relied upon by the State did not say that no appeal shall lie against an order of a Criminal Court trying cases of contravention of Martial Law Regulation or Martial Law Orders, Martial Law Order No. 10 could not be deemed to have taken away the right of appeal granted by the Code of Criminal Procedure and, at any rate, Martial Law Order No. 10 could not amend the Code of Criminal Procedure. It appears to me that Martial Law Order No. 10 by implication takes away the right of a person convicted by an ordinary criminal Court in the cases A mentioned in that order‑‑though he may have had a right to appeal under the Code of Criminal Procedure‑‑‑and no appeal will lie in such cases unless it can be held that Martial Order No. 10 was for some reason invalid.

5. In support of his contention that Martial Law Order No. 10 could not amend the Code of Criminal Procedure, Mr. Mahmud Ali relied on paragraph 4 of President's Order (Post‑Proclamation) No. 1 of 1958, which runs as follows :‑ "4. (1) Notwithstanding the abrogation of the late Constitution, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, by‑laws, Regulations, Notifi?cations, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by com?petent authority. (2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation. (3) No Court shall call into question any adaptation made by the President under clause (1)." The argument was that as the President of Pakistan had kept the laws mentioned in paragraph 4 of the Order alive, they could not be nullified or amended by any authority other than the President. This argument overlooks the fact that paragraph 4 itself says that the laws continued in force may be amended by a Regulation issued by the Chief Martial Law Administrator. But, contended Mr. Mahmud Ali, the President's Order said that the Chief Martial Law Administrator could make amendments in laws continued in force only by means of a Regulation and as Martial Law Order No. 10 was not a Regulation, it had not achieved the result that may have been intended. Martial Law Order No. 10 dated the 18th of October 1958, which has been reproduced above, was issued by the Chief Martial Law Administrator, who was competent to issue a Martial Law Regulation on the point and I F~ am definitely of the view that the mere fact that the provision was termed a Martial Law Order and not a Martial Law Regulation cannot deprive it of the force it was intended to have. If the order had been issued by an authority other than the Chief Martial Law Administrator, the contention of Mr. Mahmud Ali would have been unassailable, but as the order was issued by the Chief Martial Law Administrator himself, the contention has no force. The view that a Martial Law Order issued by the Chief Martial Law Administrator has the same force as a Martial Law Regulation issued by him was expressed by a Division Bench of this Court, of which I was a member, in Ch. Manzur Elahi v. The State etc: Criminal Miscellaneous No. 2044 of 1958 (P L D 1959 Lah. 243), in which the judgment was announced on the 16th of January 1958, and in addition to the fact that I am bound by what was laid down by a Division Bench, there is the fact that nothing urged by Mr. Mahmud Ali has made me change the view that I expressed in that case.

6. Another argument addressed by Mr. Mahmud Ali with regard to the right of appeal not having been taken away by Martial Law Order No. 10 dated the 18th of October 1958, was that the oft‑amended Regulation No. 61, which was for the first time issued on the 24th of December 1.958, did not, when originally issued, bar an appeal from any sentence unless it was passed in a case tried in pursuance of paragraph 1 of that Regulation. From this fact Mr. Mahmud Ali wanted me to infer that appeals from other sentences in cases of contravention of Martial Law Regulations or Orders were not barred, but as it appears to me that Martial Law Order No. 10 by implication took away the right of appeal given by the Code of Criminal Procedure, nothing said in Martial Law Regulation No. 61 as originally issued on the 24th of December 1958, or as subsequently amended, can be construed to mean that appeals lay against orders of conviction for breach of Martial Law Regulations or Martial Law Orders when passed before the 24th of December 1958 by an ordinary criminal Court.

7. In view of what I have said above, I hold that the orders passed by the Additional District Magistrate were not open to appeal under the Code of Criminal Procedure. The decision of the learned Sessions Judge, Lahore, that he had no jurisdiction to hear the appeals being correct, the petitions for revision are without force and are dismissed. The result will be that the bail bonds put in by the petitioners in obedience to the order dated the 6th of January 1959 of my brother Abdul Hamid shall stand cancelled. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.