1979 PLP 283 (SCMR)

G. SAFDAR SHAH, J.‑Petitioner Muhammad Luqman Mirza was: tried by the Summary Military Court, Rawalpindi under Martial Law Regula tions 5, 13 and 33 on ‑ the ground that he had taken part in a protest procession of a political nature near Bank Road, Saddar, Rawalpindi at about 7‑45 p.m. on 31‑7‑78 and had raised slogans against the armed forces to the effect that "General Zia Murda Bad" and "Bhutto Zinda Bad" etc. Upon the evidence of five witnesses produced before the Summary Military Court he was found guilty, accordingly convicted and sentenced to one year R. I; and ten lashes. Being aggrieved, he challenged his conviction through a writ petition in the High Court but the same was dismissed vide order dated 29‑1‑

79. Finally he filed an Inter Court Appeal in the High Court but the same also was dismissed in limine vide the impugned order. It is in this back ground that he has come up to this Court praying for leave to appeal against the impugned judgment of the High Court. The order of the learned Single Judge of the High Court would show that during the trial of the petitioner, five witnesses were examined by the prosecution, all of whom supported the allegation that he had taken part in a protest procession in which he had raised the aforesaid slogans against General Muhammad Ziaul Haq. As against this, the petitioner simply denied the case of the prosecution. In view of the said evidence, the Summary Military Court found the petitioner guilty and convicted him as aforesaid. . The contention raised on his behalf in the High Court was that the five witnesses produced against him by the prosecution were unreliable as two of them belong to police and the other three were hawkers not having any shop in the locality. The further contention raised on .has behalf was that he was afforded no opportunity to produce evidence in his defence. The learned Judge, after examining the case file produced before him from the Summary Military Court, rejected both these contentions holding:‑ "The present petition is neither appeal nor revisions, and the evidence already appraised cannot be re‑appraised in the present proceedings. If there had been no evidence connecting Muhammad Luqman Mirza With the offence alleged to have been committed by him, interference may have been called for. The present case .is not a case of no evidence. Whatever evidence was produced by the prosecution, the same was appraised and believed. As such no interference can be made with. regard to the appraisal and appreciation of the evidence by the Summary Military Court. So far as the point with regard to affording of no opportunity to produce defence evidence 'is concerned, it is belied by the relevant record. At the end of the statement made by Muhammad Luqman Mirza, he was asked as to whether he wanted to produce any witness in defence. He replied in the negative." With this finding of the learned Single Judge the Division Bench of the High Court agreed and dismissed the appeal of the petitioner‑ in limine. The only contention urged before us by Mr. Yaqub Hussain Zaidi the learned Advocate‑on‑Record for the petitioner is that even if the case of the prosecution is believed, the petitioner cannot be said to have committed any offence under Martial Law Regulations Nos. 5, 13 and 33, and conse quently his conviction was illegal. We are afraid there is no force in this contention. Martial Law Regulation No. 5 lays it down that:‑ "No person shall organize or convene or attend any meeting; not being a religious congregation, in an open public place, or organize or take out a procession not being a religious funeral or marriage procession, without the prior written permission of the Martial Law Administrator concerned, (2) No person shall attend or otherwise take part in any meeting or procession organized or convened or taken out in contravention of paragraph 1 of this regulation." Similarly Martial Law Regulation No. 13 says that:‑ "No person shall, by words, either spoken or written, or by signs, or by visible representation, or otherwise bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the Armed Forces or any member thereof, or in any manner whatsoever spread or attempt to spread any report calculated to create alarm or despondency amongst the public. Maximum punishment Rigorous Imprisonment for five years and/or whipping up to 10 stripes." It would thus be seen that by the type of allegation made against him by the prosecution, the petitioner clearly brought himself within the mischief of the said two Martial Law Regulations. The Summary Military Court as well as the High Court both have found that the petitioner had 6 indeed raised against Genera? Muhammad Ziaul Haq the aforesaid slogans and there is nothing on record to controvert the said finding. In these circumstances it cannot be said that his conviction under the said two Martial Law Regulations was improper. We are therefore, satisfied that the conviction of the petitioner by the Summary Military Court was recorded on the basis of proper evidence. Therefore, it would be incorrect to contend that it was a case of no evidence against the petitioner. The High Court was, therefore, justified to hold that in the exercise of writ jurisdiction it cannot go behind the said finding of the Summary Military Court which was based on proper evidence. This petition, therefore, fails and is dismissed. Petition dismissed.