P L D 1996 Supreme Court 801 (PLP)

SAIDUZZAMAN SIDDIQVI, J.‑‑Sabur Rehman, Shakeel Ahmed and Nasim Hassan Shah alongwith three others were tried by Special Military Court No. 18, constituted by Martial law Administrator Zone T', under M. L. Os. 266, 274 and

283. They were convicted and sentenced as follows:‑‑ Sabur Rehman. (a) 14 years' R.I. (b) Confiscation of all his movable and immovable properties, ‑and (c) Fine of Rs.5,00,000 (five lacs), in‑default to suffer R.I. for 2 years. Shakeel. Ahmed' (a) 14 years' R.I. (b) Confiscation of all his movable and immovable properties, and (c) Fine of Rs.2,00,600 (two lacs),in default to suffer R.I. for 1, years Nasirn Hassan Shah: (a) Imprisonment for life (25 years); (b) Fine of Rs.20,00,000 (twenty lacs); and (c) Confiscation of all immovable and movable properties, Sabur Rehman and Shakeel Ahmed, convicts, were charged under section 10 of the Dangerous Drugs Act, 1930 read with C.M.L,O. 77 and under section 1560) of Customs Act, 1969 read with C,M.L.O. 77, for allegedly exporting 1041 kilograms of Charas to Star Board Company, London, by substituting are Charas in tile consignment of packeted rice loaded On vessel m.v. (OMPANIA) on or about 17th March, 1985 which was apprehended at Dubai on 13111 April, 1985. Sved Nasim Hassan, the other convict in the case was charged under section 156(1)(8) of Customs Act, 1969 read with C.M.L.0, 77 and MLR‑36, for abetment of smuggling of narcotics out of Pakistan between 1983‑‑1985 at Pakistan, U.K. and Dubai, by planning, financing, supervising and facilitating the eventual smuggling of 1041 kilograms Charas out of Pakistan. The convictions and sentences awarded by the Special Military Court to Sabur Rehman,, Shakeel Ahmed and Syed Nasim Hassan Shah were challenged in three separate Constitutional Petitions Nos.D‑12,19/88; D‑309/88 and 193/89 respectively, filed under Article 199 of the Constitution of Islamic Republic of? Pakistan (hereinafter to be called as 'the Constitution' only). A learned Division bench of the High Court of Sindh, by judgment dated 2‑5‑1989 refused to interfere with the convictions and sentences awarded by the Special Military Court to the above named convicts and consequently dismissed the three Constitutional petitions referred to above. Leave was granted by this Court in the above appeals to consider the following contentions:‑‑ "Heard the learned counsel for the parties. In view of the statement of Investigating Officer at page 299 of the Paper Book in this case (page 300 of C.'P.516‑K/89) and page 309 of the Paper Book in this case Page 310 of C.P. 516‑K/89), leave to appeal is granted to examine the detenus' cases as to whether it is not one of no evidence. " The learned counsel for the appellants intended that there was no legal evidence on record in support of the charges framed against these convicts in the case and as such their convictions and sentences by the Special Military Court were wholly without jurisdiction. It is contended that only evidence in the case against the convicts consisted of confessional statements of accused before the police officer which was held inadmissible by the learned Judges, yet the learned Judges upheld the convictions and sentences awarded to them without examining the other evidence in the case against them. It is contended that mere fact that prosecution had examined as many as 45 witnesses in support of the charge in the case, was not sufficient to hold the accused guilty in the case unless the evidence of these 45 witnesses implicated the accused/convicts in the case. The learned counsel for the State, on the other hand supported the judgment of High Court and contended that once it was shown to the Court that it had no jurisdiction under Article 199 of the Constitution to interfere with the conviction and sentences awarded by the Special Military Court, it could not go into the question of sufficiency or otherwise ‑of the evidence to sustain the charges in the case. The learned counsel for the appellants relied on Mian Jamal Shah v, The Second Election Tribunal, West Pakistan 1968 SCMR 1144, Irshad Ahmed v. The Settlement Authority 1981 SCMR 758; The Commissioner and another v, Mian Sher Muhamamd,1972 SCMR 395; Swati Qaum v Painda Khel Qaum 1981 SCMR 318; Rahim Shah v. The Chief Election Commissioner PLD 1973 SC 24 and Sane Thompson v. City Louisella el 362 US 199, 4L ed 2d 654, 80 S ct. 624 to support his contention that where the tribunal of exclusive jurisdiction arrived at a finding which is not supported by evidence on record, such decision can be interfered with by the High Court in exercise of its jurisdiction under Article 199 of the Constitution. In the case of Mian Jamal Shah (supra), which related to an election dispute, this Court after referring to the case of Muhammad Saeed and others v. Election Petiti6n Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91 observed as follows:‑‑ "The fact that a Tribunal while determining validity or invalidity of an election exercises judicial function has not been disputed before us, If' any authority is needed for this proposition, it will be found in the decision of this Court in Muhammad Saeed and others v. Election Petition Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91. it may, therefore, be said that if the finding of the Tribunal is based on no evidence then the action of the Tribunal may be characterized as one 'without lawful authority'. Hence, the question is whether there were sufficient materials before the tribunal upon which it could at rive at a conclusion that it did in this case. In other words, whether on the law and circumstances of the case, a finding of corrupt practice could be safely drawn. In Irshad Ahmed's case (supra), the High Court in, exercise of its jurisdiction under Article 199 of the Constitution had interfered with a finding of fact recorded by Deputy Settlement Commissioner, in a case which related to the transfer of an evacuee building, site, This Court while refusing leave to appeal in the case made the following observations:‑‑ "There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by, the Deputy Settlement Commissioner which was clearly against the material on record. It is well established‑that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard, of material evidence, then it can be set aside. Now, in the instant case, the facts and circumstances were such that no, useful purpose would have been served‑by the High Court remanding the case to the Deputy Settlement Commissioner for determining these two question. From the report of the Settlement Inspector it did become clear that the respondent Sain Miraj Din was asserting his possession over a portion of the plot." In Commissioner and another v. Mian Sher Muhammad (supra), the respondent Sher Muhammad's, name was deleted from the list of the Naib ?Telisildars under orders of the Commissioner, Multan Division, on the ground that he had not completed two years' service as a Field Kanoongo, This finding of fact‑ was challenged before the High Court in a writ petition filed under Article 199 of the Constitution. The High Court reached the conclusion that the finding of facts was arrived by ignoring the certificate issued by the Consolidation Officer, Pakpattan which if would have been taken into consideration the service rendered by respondent in that case would be more than 27‑ months. The judgment of the High Court was challenged before this Court in a, petition for leave to appeal, which was? decided as follows; "it is correct that ordinarily, the High Court is not entitled to investigate .,disputed questions of fact in the exercise of its writ jurisdiction, but it is well settled that a finding of fact can be interfered with if it is based on no evidence, or a misreading of evidence, or ignoring of material evidence, or taking into consideration inadmissible evidence. It seems that in the present case the learned Judge formed the view that the Commissioner, Multan Division, had arrived at his finding regarding the ineligibility of the respondent by ignoring a material piece of evidence covering a period of more than 13 months. This would be a justifiable reason for interfering with the finding recorded by the learned Commissioner." In Swati Qaum's case (supra), the High Court declined to interfere with a finding of fact recorded by a Tribunal of exclusive jurisdiction in exercise of its jurisdiction under Article 199 of the Constitution on the ground that such findings of facts cannot be interfered in exercise 6f power of judicial review enjoyed by the High Court in its Constitutional jurisdiction. This Court while allowing the appeal against the judgment of High Court observed as follows: ‑‑ "The learned Judges in the High Court were in error in thinking that the writ petition moved before them was liable to be dismissed on the simple ground that the revisional Court had the jurisdiction to decide the question, that the appeal before the Additional Commissioner, Malakand, was barred by time. Even if the learned Deputy Secretary had the jurisdiction to decide this question, this jurisdiction had to be exercised in a judicious manner on the basis of the facts having a bearing on the question of limitation, and not in utter disregard of the same. Any decision taken by a competent Authority by ignoring or misreading material evidence is liable to be quashed by the High Court in the exercise of its powers of judicial review. In Rahim Shah's case, supra, which also related to an election dispute, the High Court had dismissed the writ petition against the order of Chief Election Commissioner, disqualifying the appellant from continuing as a member of National Assembly and declaring his seat vacant, in limine. This Court reversed the decision of the Chief Election Commissioner on a question of fact for these reasons: ‑‑ "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this Constitutional jurisdiction cannot be enlarged‑to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence', bad faith, misdirection or 'failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to consist of the conviction or order, certiorari will be granted. In same Thompson v. City of Louisville (supra) the Police Court of Louisville, Kentucky, convicted the petitioner for offence of loitering and disorderly conduct. The Supreme Court of U.S. granted certiorari and quashed the sentence on ground that the conviction was not supported by evidence which amounted to violation of due process clause. From the preceding discussion, it follows that the High Court while v examining a case in exercise of its power of judicial review under Article 199 of the Constitution will normally not interfere with a finding of facts recorded by a Tribunal of exclusive jurisdiction where such finding of fact is based on evidence. The sufficiency or otherwise of the evidence in such cases are not open to be gone into by the High. Court. However, where finding of fact recorded by the Tribunal of exclusive jurisdiction is based on no evidence, such finding loses its binding effect as the tribunals of exclusive jurisdiction are equally bound by the rule that all findings on questions of fact must be based on legal evidence. Therefore, a finding of fact recorded by a Tribunal of exclusive jurisdiction without evidence, is a finding Without jurisdiction which binds on one. Similarly, a finding of fact recorded by a Tribunal of exclusive jurisdiction, by misreading the evidence or by ignoring the material evidence, on record, will be open to interference by the High Court in exercise of 1ts jurisdiction under Article 199 of the 'Constitution. The learned Judges of the Division Bench though aid not reach any different conclusion or, the scope of interference by the High Court in exercise of its power of judicial review, with a finding of fact recorded by a Tribunal of exclusive jurisdiction, it declined to interfere with the convictions and sentences awarded by the Special Military Court for the following reasons: "We have examined the evidence in the light of the above authorities and principles and are of the view that even after the exclusion of the confession, it cannot be said that there' is no evidence to justify the impugned‑ order. Nor the learned counsel for the petitioners have pointed out to the blatant misreading of evidence manifesting denial of justice. We have carefully gone through the impugned judgment and are of the view that except for the above-quoted observation, there is nothing else in the judgment to indicate that the learned Judges really undertook examination of the evidence on record to find out whether the convictions and sentences awarded by ?the Special Military Court were in fact supported by any legal evidence on record of the case. The learned Judges appear to have been much impressed by the quantum of evidence led by prosecution in the case as would appear from the following observations made in the impugned judgment: "The evidence recorded by the Special Military Court consists of 45 prosecution witnesses in which they have tried to prove all the charges made against the accused persons. The statement of accused which was recorded by the Investigating Officer is not the only piece of evidence which has been made basis for conviction. " Needless to mention here that it is the quality of evidence and not the quantity which determines the fate of every case. It is pertinent to mention here that Special Military Court convicted all the accused in the case on 19‑12‑1985. The President and the two members of the said Court unanimously recorded their observation about the investigation and evidence in the case on the same date e.g. 19‑12‑1985 which has been reproduced verbatim in the impugned judgment. The learned Judge of the division Bench, however, were of the view that these observations were only in the nature of comments on the irregularities committed during investigation and as such these were of no consequences. Since the observations recorded by the Special Military Court were of the same date on which the accused were convicted, they may be taken into consideration in support of the order of conviction of the accused in the case. A cursory look on these reasons reveal that the prosecution had failed to produce convincing evidence to establish the charges against the accused in the case. Be that as it may, as leave has been granted in these cases to consider‑whether it was a case of no evidence, we would now examine whether the charge against the accused persons in the case was brought home by the prosecution on the basis of any legal evidence on record. Since the Special Court has not given any detailed reasons (except the observations of Special Court which are reproduced in the impugned judgment and which have been considered by the learned Judges of the High Court as mere comments and irregularities committed during investigation) in support of the convictions and sentences awarded to the accused, we assume that the convictions and sentences in the case were based on the 6onfessional statement of the accused recorded during investigation before the Investigating Officer and other evidence produced by the prosecution at the trial of the case before the Special Military Court. Before dealing with the other evidence produced by the prosecution in support of the charges, against each accused convict before the Special Military Court, it would be proper to first determine the validity of the confessional statements of the accused made before the Police Officer during investigation of the case, as this is common to all the three convicts before us. Martial Law Order (M.L.O.) IV, was amended on 24‑3‑1904 by M.L.O. 97 and in paragraph 5, after sub‑para. (e), the following new sub?paragraph (f) was inserted‑ "(f) Wherein a case, a Martial Law Administrator deems expedient, he may, by order in writing, direct that the provisions of Article 11 of the Presidents Order No.IV of 1982 shall apply to such case with effect from the date as specified in the order whether preceding or succeeding the date of the trial. " The Martial Law Administrator Zone 'C' in exercise of his power under paragraph 5(f) (ibid), by order dated 8‑12‑1985 extended the application of Article 11 of the President's Order No.IV to the proceedings of the cases which were pending before the Special Military Court against the convicts in the above case with effect from 17‑3‑1985. The appellants contended before learned Judges of the High Court that the provisions of Article 11 of the President's Order No.IV making the statement of the accused made to a police officer during the course of investigation admissible at the trial of such accused is in conflict with the provisions of Qanun‑e‑Shahadat and as such the latter will prevail. The learned Judges of the High Court accepted the above arguments as follows:‑ "The learned counsel for the petitioners contended that the rule of evidence applied by the Special Military Court was not according to law and therefore the judgment and proceeding is not legal. In this regard reference has been made to an order dated 8‑12‑1985 by which Mar Law Administrator, Zone 'C' exercising power under sub‑paragraph (f) of paragraph 5 of C.M.L.O. 4 as amended by C.M.L.O. 97 applied Article 11 of President's Order 54 of 1982 to the proceedings of t case with retrospective effect. The learned counsel has contended such application was mala fide as it was made at the close of trial further that Article 11 could not be applied in view of Article 165 Qanun‑e‑Shahadat. The Qanun‑e‑Shahadat, 1984 was promulgated 24‑10‑1984. According to Article 1(2) it extends to whole of Pakistan and applies to all judicial proceedings in or before any Court include a Court Martial, a Tribunal or other authority exercising‑judicial quasi‑judicial powers or jurisdiction, but does not apply to proceeding before an arbitrator. Although the term 'Court Martial' has not be defined in the Qanun‑e‑Shahadat, by its terminology it will include Martial Law Court as defined in the Pakistan Army Act which me Court Martial under the said Act. The Special Military Court w established under Martial Law Order 4 which was empowered exercise criminal jurisdiction in respect of offences under the law mentioned therein. It was also empowered to record evidence and necessary only extract of evidence could be recorded. Therefore, the Special Military Court would fall under the definition of the word 'Court' as defined by Article 2(a) of the Qanun‑e‑Shatutain , 198 Article 165 of Qwiun‑e‑Shahadat provides, that the provisions of the? Order shall have effect notwithstanding anything contained in any other law for the time being in force. The learned counsel have referred to Article 38 of Qanun‑e‑Shahadat which provides that no confession made to a police officer shall be proved as against a person accused of any offence. Therefore confession made before the Police officer or Investigating Officer cannot be used as a proper and legal evidence against an accused. Article 11 of President's Order 4 of 1982 which has been made applicable to the proceedings of this Court provides special rules of evidence which reads as follows:

11. Special rules of evidence. ‑‑(I) The Tribunal or Court may receive in evidence, for such purposes as it may deem fit, any statement recorded by a Ma is[rate made by any person who, at the time of the 9 trial,. is dead, or whose attendance cannot be procured without an amount of delay or expense which is unreasonable in the circumstances; (2)?? The Tribunal or Court? may receive in evidence‑‑ (i) any statement made by a person who is examined at the trial as a witness or as an accused person which may have been recorded by a Magistrate, or by an officer during the course of investigation of the case under trial or in the course of the investigation of any other criminal case; (ii) any statement of a person recorded by an officer exercising the powers of a Magistrate of the first class or that person himself in his own, handwriting or under his signatures, and (iii)??? any tape‑recorded speech or statement of a person, provided that the voice of the speaker or the maker of the statement has been identified .by a competent witness. (3)?? No objection to any document or property seized in the course of investigation being in. evidence shall be entertained on the ground that the same was not seized in accordance with the procedure prescribed in law.' The main thrust of attack has been on Article 11(2) (1) which makes admissible in evidence statement of accused which may have been recorded by Magistrate or by an Officer during the course of investigation during trial or in the course of investigation of any criminal case. Therefore, in view of Article 11(2) on the basis of statement of accused made before a police officer during investigation he can be convicted. The provision of Article 11 to that extent is in conflict with Article 38 of Qanun‑e‑Shahadat. The Qamm‑e-Shahadat being a subsequent legislation overrides all other laws contrary to it and applies even to the trial and proceeding before the Special Military Court. Article 11(l)(2) of President's Order 4 of 1982 being in conflict with Article 38 ‑of the Qanun‑e‑Shahadat cannot be applied to the proceeding of any Court including Special Military Court. We are in agreement with the above conclusion of the learned Judges of the High Court. Therefore, the statements made by the 3 convicts in the above appeals, to the police officer during the investigation of the case, could not be taken into consideration by the Special Military Court while convicting them in the case. Having reached the conclusion that the statements of the three‑convicts in the above cases made to police officers during investigation of the case were to be kept out of consideration for the purpose of proving the charges against them, we are left only with the evidence adduced before the Special Military Courts by the prosecution at the trial of accused persons in the case. In order to ascertain whether the prosecution evidence at the trial 'established the charges against three convicts in the above appeals, it is necessary to examine the case of each one of them separately as the prosecution evidence in each case is different. We will first take up the case of accused/convict Syed Nasim Hassan Shah (appellant in C.A. 392‑K/90). Syed Nasim Hassan Shah was charged in the case for abetment of the offence of smuggling of narcotics from Pakistan between 1983‑1985, at Pakistan, U.K. and Dubai, by planning, financing, supervising and facilitating the eventual smuggling of 1041 kgs. of Charas. To establish these charges, the prosecution produced as many as 45 witness. Out of these 45, only witnesses Nos'.33, 39 and 42, Muhammad Younis Khan, Gerald Nazreth and Abdur Rashid, respectively, mentioned the name' of accused/convict Syed Nasim Hassan Shah in their evidence. The rest of the witnesses in the case made no mention about any role of the accused/convict Syed Nasim Hassah Shah in ‑connection with the smuggling of narcotics out of Pakistan. Muhammad Younis Khan, in his evidence before the Special Court stated as follows:‑‑-- ??,Muhammad Yasin Khan son of Haq Dad Khan, religion Islam age 50 years, resident of F‑16 KDA, Flat FL 2, 3 and 4, Block 13, Gulshan Iqbal, Karachi having been solemnly sworn is examined by the prosecutor on 25th November, 1985. I am working as Accounts Officer at Telephone revenue since December 1980. I produce before the Court a letter from F.I.A. asking us to provide the information about bill of Telephone No.614434, I also produce before the Court a reply sent thereof. The Court examined the original compared with photo copies and attached with the proceedings as Exhs. CCC to CCC‑

3. I read out from the testing record which I 'have already produced before the Court that following calls ,were made from Telephone Number 614434:‑‑ (a) May, 1984? 8 calls (b)? 5 June, 1984 to 21st June, 1984 One call Mr. Shah to any one Mr. Naseem to Ashraf. (c) July, 1984 12th July Mr.Naseem to any one, 18th July, Mr. Naseem to Saboor.? No call in August 1984. (d) September, 1984 2nd September 1984 and 3rd September two calls were made on Dubai the other to UX on direct dialling. (e) October, 1984 9th October Mr. Naseern to Saboor, 25th October Mr. Naseem to Saboor. (f) November,. 1984 13th November 1984, Naseem to Rehman, two calls to UX on direct dialling. (g) December, 1984 4 calls to U.K. on direct dialling. (h) January, 1985 One call from Mr. Naseem to Rehman on 15th January to U.K. Third call to UK on direct dialling. (i) February, 1985 Two calls, one to S. Arabis and ot her to UX on direct dialling. (k) March, 1985 One call on 18th March from Naseem to Rehman and UX and 4 calls to UX direct dialling (1) April, 1985 ' . Three calls to U.K. on direct dialling. (m) May, 1985 Four calls to Dubai on direct dialling. (n) June 1985 Three calls on d.d to Dubai last call was amde on 27th June, 1985 to Dubai on direct dialling." This witness was not cross‑examined by the accused/convict. The next witness which mentioned the name of accused/convict Syed Nasim Hasan Shah, was Gerald Nazarth. He made the following statement in respect of Syed Nasim Hasan Shah, in his examination:‑‑-- "In November, 1984, Nasim Hasan Shah, who is sitting in the Court as accused visited us in London and met Sabur and stayed with him." Witness Gerald Nazarth was declared hostile in the case and he was allowed to be cross‑examined by the prosecutor. In cross‑examination he made the following statement about Syed Nasim Hassan Shah:‑‑ ?it is not correct to suggest that Nasim Shah, when he was visiting London had asked me to bring two cartons of Rice Export Corporation of Pakistan from the warehouse which he subsequently handed over to another company. It is not correct to suggest that my family is being paid Rs.5,000 per month by Nasim Hassan Shah and Sabur. It is incorrect to suggest that the accused had threatened my life while I am still in Jail. " The only other witness who deposed about Syed Nasim Hassan Shah was Abdur Rashid Khan, Assistant Director, F.I.A. who made the following statement in his examination‑in‑chief before the Special Court:‑‑ "On 10th July, 1985 we arrested Gerald Nazareth an employee of Star Board Limited, on a tip from him we arrested Sabur Rehman from Hotel Intercontinental, Rawalpindi on 11th July, 1985. Sabur Rehman during interrogation indicated the name of Nasim Shah sitting as accused in the Court Nasim Shah was arrested on 13th July, 1985 from his house at Karachi. Nasim Hassan Shah as from the evidence against him, had provided finance for the whole transaction through Al‑Raha Company Dubai. Then I submitted the supplementary charge‑sheet against three accused namely Geraled Nazareth, Sabur Rehman and Nasim Shah, The Supplementary Challan was submitted before Headquarters Martial Law Administrator, Zone 'C' Karachi." This witness in cross‑examination to the counsel for Syed Nasim Hassan Shah, stated as follows:‑‑ ?I had served a notice under section 171 of Customs Act to Nasim Shah, after his arrest, nothing incriminating item was recovered from personal search of accused Nasim Shah. No witness testified in their statements before me under section 161, Cr.P.C. that Nasirn Shah had planned for transportation of rice consignment. It is correct that no witnesses stated before me in their statements under section 11, Cr.P.C. that Nasim Shah was involved in any way in this case including financing of rice, consignment. It is correct that none of the witnesses have deposed before me that two cartons of rice were taken by Nasim Shah as sample of Buyer. It is correct to suggest that we had got any evidence that Nasim Shah had any connection with AI‑Raha Company so far. " As stated earlier, Syed Nasim Hassan Shah was charged under section 156(l) (8) of Customs Act, 1969 read with C.M.L.O.77 and M.L.R.36, for abetment of smuggling of narcotics out of Pakistan between 1983‑1985, at Pakistan, U.K. and Dubai‑, by planning, financing, supervising and facilitating the eventual smuggling of 1041 Kgs. of Charas out of Pakistan. The above? referred evidence produced before the Special Military Court by the prosecution had no nexus with the charges brought against Syed Nasim Shah and as such it could not be argued that the conviction of Syed Nasim Hassan Shah in the case on the above charges was based on any evidence. We, accordingly, hold that the conviction and sentences awarded to him by the Special Military Court on the basis of the above evidence, were wholly without jurisdiction. We now take up the case of Sabur Rehman, the appellant in Civil Appeal No.239 of 1990. The charge against Sabur Rehman was framed under section 10 of Dangerous Drugs Act, 1930 read with C.M.L.O.77 and under section 156(l) of the Customs Act, 1969 read with C.M.L.O.77,' for illegally exporting 1041 Kgs. of Charas to Star Board Company, London, by substituting the Charas in the consignment of packeted rice loaded on vessel m.v. Compania: which was apprehended at Dubai on 13‑4‑1985. The learned counsel for the appellant contends that there is no evidence on record to show that Sabur Rehman‑was responsible for exporting 1041 Kgs. of Charas out of Pakistan by substituting the packeted rice with packets containing. Charas on board m.v. "Companta". The prosecution? in this case has also' relied on the evidence of 45 witnesses which we have referred in the earlier case of Syed Nasim Hassan Shah. There is no evidence on record to show that Sabur Rehman accused was in any way responsible for exporting 1041 Kgs. of Charas. It is an admitted position in the case that the name of Sabur Rehman was included in‑ the challan after the examination of Gerald Nazareth in the case. Gerald Nazareth. Was examined as witness No.39 in the case. Gerald Nazarth in his evidence before the Special Military Court stated as f6flows, about Sabur Rehman:‑‑ "I know Sabur Rehman sitting in the Court as an accused since 15 years. I was employed as purchasing clerk. He had been studying with my elder brother Johan Nazarth, I have been working for Sabur Rehman in his company General and Commercial Trading Company from 1980‑1984. Thereafter Sabur Rehman went abroad. I have been abroad a no of times in my capacity when I was working with Sabur, first time I went in March, 1984 as I did not have visa for London I went via Switzerland, Austria. I also went to Dubai where Sabur had called me. I met Sabur there for a week or so and returned home. I went to London in October 1984 and‑came back in December, 1994. 1 used to make short trips because my visa used to be of one month. I got a visa for six months in October, 1984 and January., 1985'1 came back in May 1985, because my brother was paralysed. Sabur used to make payments for my travel between London and Pakistan. I was working in London in Star Board Company which is owned by Sabur and used to deal in import of rice/garments and chillies from Pakistan and I used to look after the warehouse. In November 1984, Nasim Hassan Shah, who is sitting in the Court as accused visited us in London and met Sabur and stayed ‑with him. Sometime in April, 1985, Sabur brought some newspapers while I was just going through them I read ‑a news that Rice Export Corporation of Pakistan rice cartons containing Charas was caught in Dubai and this consignment was for London. I read the news and told Sabur about it who told me that he had already read the same news. Thereafter Sabur went abroad to Jadda and returned after a few days to. London. I do not remember if Sabur had mentioned anything specific in this case. My statement was recorded before special investigation Team headed by Colonel Hassan. At this stage the witness weeping in the Court. The Court was adjourned and all present in the Court were asked to withdraw. The Court assumed the witness to speak the truth and not be afraid from any one. He was given a glass of water After 35 minutes the Court was reassembled." This witness was cross‑examined as a result of the application made by prosecution. declaring him hostile and in reply to various questions put to him by the prosecutor during cross‑examination he stated as follows:‑‑ "It is correct 1hat I had stated before the special investigation team ‑that Mr. Sabur came to London from Karachi for one day, all of a sudden and proceeded to Jadda. It is not correct to suggest that Sabur had reminded him at London after reading. the newspaper in which Dubai Charas case was mentioned and his words were 'We are lucky that we are safe'. It is not correct to suggest that Sabur had told me that this was their consignment of Charas, but it went to Dubai due to fault of labours who loaded it. I had not stated this before special investigation team headed by Colonel Hassan. When I appeared before the team they asked me few questions which I replied. This above para. was probably recorded by F.I.A. The statement recorded by F.I.A. which before me now has been written in my own hand and I have signed it on 12th July, 1985 under duress, but it was not dictated to me but I was told by Mr. Rashid that I give you 15 minutes to write your statement otherwise you know the consequences. I took 1‑1/2 hours to completely write my statement in own hand, the statement before the FLA. as under:‑‑ 'Mr. Sabur was in Karachi, all of a sudden he came to London for one day and told me that we are lucky that we are safe because he brought a paper which was shown that consignment of rice was caught in Dubai because it was Charas in it and it was coming to London thank God we are safe'. but as I have already stated that it was under duress by F.I.A., I am non‑Matric and Sabur spent about.60/70 thousand Rupees for travel abroad during this period (84/85)." Muhammad Siddique son of Muhammad Adbul Salam, Assistant Director, F.I.A., who was one of the members of. investigation team headed by Colonel Muhammad Hassan, and investigated the case, stated that after examining 77 witnesses and 6 accused in the case he submitted a charge‑sheet which contained the name of Sabur Rehman. He also stated that 16 persons have been shown in challan column No.2, who were not sent ‑for the trial, Another 81 persons were shown as witnesses against the accused in the case in the chargesheet. In cross‑examination by the counsel for Sabur Rehinan, this witness made the following statement:? "Gerald Nazareth is still in‑Central Jail, Karachi but we had included him in our challan submitted on 19th October, 1985 in column 2 as accused and not sent for trial. Gerald Nazareth is not in jail on my order and I do not know under whose orders he is in Central Jail. No direct evidence through a witness had been brought before us against accused No.1 Sabur Rehman to show him as involved, person in abetting, conspiring in smuggling of Charas to London, The case against him was established because of circumstantial trial evidence but it is incorrect to suggest that one of the prosecution witnesses had deposed before us that accused Sabur Rehman has planned with the other accused persons for the smuggling of narcotics. It is not correct to suggest that the charge‑sheet has been framed against accused No. I on mere presumption. There is no direct evidence to ascertain, 'Provided funds to Sabur Rehman for setting of an office in London,, opening of letter of credit required for importation of rice and Charas from Pakistan'. The case was established on documentary evidence. We have not mentioned the documentary evidence based on which we have framed the charge‑sheet against Sabur Rehman. We examined and considered the documentary evidence but did Verify its contents from any authentic source. It is not correct to suggest that I am telling lies because of fear of my superior officers. I shall once again repeat that there is no direct evidence to say, Sabur Rehman took all the necessary steps to facilitate the smuggling‑of Charas to London by establishing the office of Star Board Company, opening of L/C and appointing Shakeel and company as local agents. It is not correct to suggest that the entire charge‑sheet is based on the statement of Investigation Officer Adbul Rashid before us. It is correct that we hive shown some persons as witness in the list of witnesses in the final challan. " From the above evidence, it is quite clear that prosecution failed to produce any direct evidence against Sabur Rehman regarding his involvement in export of 1041 Kgs. of Charas in place of packets containing Charas in place of packets containing Basmati rice of R.E.C.P. There is also no circumstantial evidence on record to establish the charge in the case against Sabur Rehman. According to prosecution evidence on record, two consignments of R.E.C. Price were shipped from Karachi Port in containers. One container containing 900 packets of rice was shipped per "m.v. Conscience" on or about 15th March, 1985 by Shakeel. &. Sons. This consignment was bound for Tillsbury. The second consignment of 5 containers containing 4500 packets of rice was shipped to Dubai per 'm.v. Compania' on or about 2nd April, 1985. This consignment was booked by Sunny Enterprises for WRSM Trading Company, Dubai. The charge in the case against Sabur Rehman clearly stated is that he illegally exported 104 Kgs. of Charas by substituting' the same in place o packets containing rice, to Star Board Company, London, per m.v. Compania, which was apprehended at Dubai on 13‑4‑1985. There is no evidence on record either oral or documentary to show that Sabur Rehman or the Star Board Company owned by him, was in any way connected with the consignment which was loaded on 'm.v. Compania' at Karachi port on or about 2nd April, 1985. And was later apprehended at Dubai. It may be stated here that after the consignment containing 'Charas' was detected at Dubai, the, case was investigated by 3 different officers of F.I.A. The first to investigate this case was Syed Miraj Rasool (witness No.41,) an officer of Excise and Land Customs on deputation in F.I.A. He lodged tne F.i.R. in the case with F.I.A. on 22‑4‑1985. He submitted interim? challan on 5‑.5‑1985 after recording confessional statements of accused Hazrat Saad and Aftab Shan and 164, U.P.C. statements of prosecution witness, Muhammad Irfan (witness No.h., Vakeeluddin (witness No.6), Naseem Ahmed (witness No.9), Riaz Khan (witness No.10), Sirajuddin (witness No.11) and Sharaftiddin (witness No. 12) before a Magistrate, till then there was no material with the prosecution either against Syed Nasim Hassan Shah or Sabur Rehman. In the interim challan submitted by Syed Miraj Rasool in the case, ten persons including three persons of Sunny Enterprises were cited as accused whereas Abdul Saad owner of Sunny Enterprises and three others were shown as absconders. The investigation was thereafter, taken over by Abdul Rashid, Assistant Director, F.I.A. (witness No.42) on 6‑1‑1985. Abdul Rashid arrested Sabur Rehman after interrogation and recording of the statement of Gerald Nazareth (witness No.39). He then submitted supplementary challan in the case and excluded the names of three persons from Sunny Enterprises were cited as accused. H e also let off Abdul Saad, owner of Sunny Enterprises. He included the names of Syed Nasim Hassan Shah and Sabur Rehman in the supplementary challan. Abdul Rashid in his evidence before Special Military Court produced some documents relating to Sabur Rehman and Star Company of London owned by Sabur Rehman. These documents relate to financial condition and import of some consignments of Basmati rice by Star Board company of London. These documents failed to show any connection between Sabur Rehman and the Star Board Company of London on the one hand and ' the consignment of Basmati rice containing Charas, apprehended at Dubai. The investigation of the case was finally taken over in September 1985, by a Special Investigation Team constituted on the order of M.L.A., Zone 'C' which was headed by Colonel Muhammad Hassan of Headquarters 5 Corps with Mukhtar Ahmed Naqvi, A.I.‑G. Crimes, Sindh, and Muhammad Siddiq, Assistant Director, F.I.A. (witness No.44). Muhammad Siddiqui's evidence has already been referred by us earlier in this judgment. In this state of evidence, it 'could not be said that Special Military Court while convicting Sabur Rehman on the charges framed in the case had any legal evidence before it in support of his conviction. The last appeal relates to Shakeel Ahmed, who like Sabur Rehman, was also convicted and sentenced to imprisonment for 14 years and fine of Rs.2 lacs or in default to suffer R.I. for one year in addition to confiscation of all movable and immovable properties. The charge against Shakeel Ahmed was identical as was against Sabur Rehman. His case is, however, quite distinguishable from the cases of Syed Nasim Hassan Shah and Sabur Rehman. The prosecution in support of the charge against Shakeel Ahmed examined large 'number of witnesses, who deposed regarding purchase of consignment of rice from R.E.C.P. printing of packets of rice, diversion of the consignment o f rice while on its way to port from the Godown of R.E.C.P. to a house in Defence society and then substitution of packets of rice by other, jackets. Therefore, in the case of Shakeel Ahmed, it cannot be argued that his conviction was not based on any evidence. As earlier pointed out by us, the evidence in the case could not be analysed by the High Court as a Court of Appeal, while exercising jurisdiction under Article 199 of the Constitution. Therefore, sufficiency or otherwise 'of evidence in a case could not justify interference by the‑ High Court under Article ' 199 of the Constitution with the judgment or order of a Court or Tribunal. The learned Judges of the High Court, therefore, rightly declined to interfere with the order of Special Military Court in so far it related to the conviction of accused Shakeel Ahmed in the case. As a result of the above discussion, Civil Appeal No.392‑K of 1990 and Civil Appeal No.239‑K of 1990 filed by Syed Nasim Hassan Shah and Sabur Rehman respectively, are allowed and their convictions and sentences awarded by the Special Military Court are declared without lawful authority and of no legal effect. They are stated to be on bail, their bail bonds are discharged. Civil Appeal No.341‑K of 1990 filed by Mst. Ansayeha Shakeel Ahmed is dismissed. The accused Shakeel Ahmed is on bail, his bail bonds are cancelled and he is directed to be taken into custody forthwith to serve out his remaining sentence. (Sd.) SAIDUZZAMAN SIDDIQUI, J AJMAL MIAN, J.‑‑I have had the advantage of reading the proposed opinion of my learned brother Saiduzzaman Siddiqui, J. With due deference to him, I am unable to agree with this conclusion.

2. The present appeals have arisen out of dismissal judgment dated 2‑5‑1989 passed in Constitution Petitions Nos.D‑120/1988, D‑309 of 1988 and D‑193 of 1989 filed by the convicts Sabur Rehman, Shakeel Ahmed and Syed Nasim Hassan Shah, respectively against the convictions and sentences awarded to them by the Special Military Court No. 18 as under:‑‑ "Sabur Rehman: (a) 14 years' R.I.; (b) Confiscation of all his movable and immovable properties; and (c) Fine of Rs.5,00,000 (five lacs), in default to suff6r R.I., for 2 years Shakeel Ahmed: (a) 14 years' R.I.; (b) Confiscation of all his movable and immovable properties; and (c) Fine of Rs.2,.00,000 (Two lacs), in default to suffer R.I. for I year Nasim Hassan Shah: (a) Imprisonment for life (25 years): (b) Fine of Rs.20,00,000 (twenty lacs); and (c) Confiscation of all immovable and movable properties.

3. It may be observed. that the convicts Sabur Rehman and Shakeel Ahmed were charged under section 10 of the Dangerous Drugs Act, 1930 read with C.M.L.O.77 and under section 156(l) of the Customs Act, 1969 read with C.M.L.O.77 for allegedly exporting 1041 kilograms of Charas to Star Board Company, London in the consignment of packets of rice loaded on vessel m.v. (OMPANIA) on or about 17th March, 1985, which was detained at Dubai on 13‑4‑1985, whereas the convict Syed Nasim Hassan Shah was charged under section 156(l)(8) of the Customs Act, 1969 read with C.M.L.O. 77 and M.L.R.36 for abetment of smuggling of narcotics out of Pakistan between 1983‑1985 at Pakistan, U.K. and Dubai, by planning, financing, supervising and facilitating the eventual smuggling of 1041 kilograms of Charas out of Pakistan.

4. In support of the prosecution case as many as 45 witnesses were examined and they were cross‑examined at length by the learned counsel for the convicts. Their depositions run into several hundred pages. Besides that, a number of documents were produced, the detail of which is inter alia given by P.W.42 Adbul Rashid Khan son of Fazal Dad Khan, Assistant Director, F.I.A. (at pages 296 to 298 of the paper book in Civil Appeal No.392‑K of 1990), which inter alia included sale invoices prepared at Star Board Company London, statements of accounts for Bank of Commerce and Credit International, Oxford Street, London, in respect of convict Sabur Rehman and M/s. Star Board Company, London.

5. The High Court, after having perused the record, found that the present cases were not cases of no evidence and, therefore, dismissed the aforementioned Constitution petitions. The record which is available in this Court does not include the documentary evidence produced by the prosecution to connect the convict Sabur Rehman with M/s. Star Board Company, London. However, the statement of P.W.39, Gerald Nazareth, indicates that he was working in star Board Company, London, which was owned by the convict Sabur Rehman. He had inter alia deposed as under:‑‑ ? "I have been abroad a number of times in my capacity when I was working with Sabur first time I went in March, 1984 a I did not have visa for London I went via Switzerland, Austria, I also went to Dubai where Sabur had called me. I met Sabur their for a week or so and returned home. I went to ' London in 6ctober, 1985 and came back it. December, 1984. I used to make short trips because my visa used to be of one month. I got a visa for six moths in October, 1984 and January 1985. I came back in May, 1995, because my brother was paralysed, Sabur used to make payments for my travel between London and Pakistan. I was working in London in Star Board Company which is owned by Sabur and used to deal in import of rice, garments and chillies from Pakistan and I used to look after the warehouse.' 5‑A. In the proposed opinion my learned brother has reappraised the entire evidence and has concluded ‑that there was no evidence against the convicts Sabur Rehman and Syed Nasim Hassan Shah to sustain the convictions, whereas he proposed to uphold the conviction of the convict Shakeel Ahmed.

6. At this juncture, it may be pertinent to point out that' the above convictions recorded by the above Military Court were protected under Article 270‑A of the Constitution to the extent mentioned in the judgment of this Court in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, in which inter alia the following has been held:‑, "

30. Taking into account the background in which Article 270‑A was enacted, the language in which it is phrased and the absurd results which would to follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'Constitutional deviation', it is difficult to,? interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts 'from reviewing acts, actions or proceedings Which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in. fact and malice in law." 7.From the above‑quoted para. 30 of the above report, it is evident that the jurisdiction of the High Court or of this Court is not barred from reviewing acts, actions or proceedings taken place during the Martial Law days which? suffered froth defect of jurisdiction or were coram non judice or were mala fide. It is an admitted position that the Special Military Court had the jurisdiction to try the offences with which the convicts were charged nor any mala fide was alleged or shown by the convicts against the prosecution, The only ground remains to be examined is, as to whether there was any other jurisdictional defect in the above convictions. There is no doubt that in some of the cases it has been held that if a finding is based on no evidence, it will be a case of without jurisdiction but the basic question is, as to whether the High Court in exercise of its Constitutional jurisdiction or this Court while hearing an appeal arising out of refusal of the High Court to set aside conviction can take upon itself the role of an Appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible. The High Court, after going through the record, was satisfied that it was not a case of no evidence. In my view, the approach of the High Court was correct that if had not reappraised the evidence and had not analysed the same in the judgment as it was not hearing of a regular appeal.

8. The additional reason which has weighed with me is the factum that the complete record of the trial has not been placed before this Court particularly the documentary evidence either by the appellants or by the official respondents The case cannot be treated lightly as it involved smuggling of 1041 kilograms of Charas out of Pakistan which has brought bad name to the country. Since the High Court had discretion not to press into service its Constitutional jurisdiction keeping in view the facts and the attending circumstances of the instant cases, refusal on its part to set aside convictions and sentences by invoking Constitutional jurisdiction cannot be said to be legally infirm warranting interfetence by this Court. I am, therefore, of the view that the judgment of the High Court is unexceptionable and does not call for interference. I would, accordingly, dismiss the above appeals with no order as to costs (Sd.) AJMAL MIAN, J. SAAD SAUCID JAN, J.‑‑l have ‑had the, privilege of. reading the opinions of my learned brothers, Ajmal Mian and Saiduzzaman Siddiqui, JJ

2. After the judgment of the. Supreme Court in the case of Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 it can no longer be argued that the convictions recorded by the Special Military Courts which were not sustainable even under the Constitutional dispensation that prevailed during the Martial Law period, fell beyond the reach of the Superior Courts on Account of the validity and immunity given to them by clause (2) of Article 270,‑A of the 'Constitution. In view of the protection afforded by Article 4 of the Constitution to the citizens during the said period convictions based on no evidence by the Special Military Courts were bad even when they were recorded, and, after the restoration of the Constitution those, still continuing to suffer there under could ask the superior Courts to intervene and grant them relief. However, the initial burden of showing that their conviction was based upon no evidence whatsoever fell on them. It was only after they had been able to prima facie establish their assertion in this regard that the superior Courts could proceed further in the matter. My learned brother Saiduzzaman Siddiqui, J, is right in upholding the view of the High Court that the confessional statements recorded by the Investigating Agency were inadmissible in evidence, However, with respect, I am unable to support his conclusion that the convictions of Syed Nasim Hassan Shah and Sabur Rehman were founded on no evidence. As observed by my learned brother Ajmal Mian, J. some documentary evidence was also led by the prosecution before the Special Military Court. That documentary evidence is not available before the Court. In view of the incomplete nature of the record laid before us, it can hardly be said that the appellants have discharged the burden referred to above so that the Court should now intervene in the matter and in exercise of its Constitutional jurisdiction relieve them of a oppressive judgment. I would, therefore, agree with my learned brother Ajmal Mian, J. that these appeals should be dismissed. ORDER OF THE COURT (Sd.) SAAD SAOOD JAN, J. By majority opinion the above appeals are dismissed, with no order as to costs. The accused/convicts Sabur Rehman, Shakeel Ahirted and Syed Nasim Hassan Shah are on bail. Their bail bonds are cancelled. They should be taken into custody forthwith to serve out their remaining sentences. The office will send a copy of the judgment to the High Court for implementation of the above order. (Sd.) SAAD SAOOD JAN, J. (Sd.) AJMAL MIAN, J. ?(Sd.) SAIDUZZAMAN SIQDIQUI, J. M.B.A./S‑1053/S??????? Appeals dismissed.