P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Ghulam Mustafa who used to work as an Inspector in the Rehabilitation Department at Lahore, was alleged to have accepted a sum of Rs. 30 as illegal gratification on the 12th of December 1958 and was sent up to Court to stand his trial under Regulation No. 30 issued by the Chief Martial Law Administrator. The case was heard by Mr. Hasnat Ahmad, Additional District Magistrate, Lahore, who finding Ghulam Mustafa guilty of the offence for which he was tried sentenced him on the 2nd of March 1959, to five years' rigorous imprisonment. Ghulam Mustafa questioned his conviction by filing a petition for revision in this Court on the 11th of March 1959. This petition, which under the rules of this Court could be dealt with by Single Bench, came up for hearing before my learned brother Shaikh Muhammad Shaft before whom it was contended by the counsel appearing for the State that no petition for revision could be entertained by this Court. The learned Judge being of the view that the point raised by the learned counsel for the State was of some difficulty and importance, referred the case to his Lordship the Chief Justice for an order that the point raised should be referred to a larger Bench for decision, whereupon the learned Chief Justice directed that the case be heard by a Division Bench. It is in these circumstances that the petition for revision has come up before a Bench of two Judges for disposal.

2. At the time when the order convicting the petitioner was passed by the learned Additional District Magistrate, Lahore, the procedure applicable to trials of offences under Martial Law Regulations or Martial Law Orders was contained in Regulation No. 61 issued by the Chief Martial Law Administrator which was published as Notification No. 113/59 in the Gazette of Pakistan (Extraordinary) dated the 4th of February 1959 as amended by Martial Law Regulation No. 66 which was published in Gazette of Pakistan (Extraordinary) on the 2nd of March 1959 at pages 286‑

287. Before the amendment introduced by Martial Law Regulation No. 66 mentioned above, the relevant part of Regulation No. 61 read as follows:

1. Trial of offences under Martial Law Regulations: (1) Subject to any order made by a Zonal Martial Law Administrator after consultation with the Governor, or in the case of the Federal Capital, with the Chief Commissioner of Karachi, direction that a particular case or class of cases under all or any of the Martial Law Regulations or Martial Law Orders, be tried by, or be transferred for trial to a Special Military Court, Magistrates exercising powers not less than those of a Magistrate. of the First. Class shall try all cases, against those Regulations or orders. Provided that an offence punishable with death shall not be tried by a Magistrate other than a Magistrate invested with power under section 30 of the Code of Criminal Procedure, 1898 (Act V of 1898,), hereinafter referred to as the Code, or by a Sub‑Divisional Magistrate having powers not less than those of a Magistrate of the First Class, or by an Additional District Magistrate, or by a District Magistrate. (2) Nothing in sub‑paragraph (1) shall be construed as barring the transfer of a case pending before a Magistrate, irrespective of whether trial has commenced or not, and where a case in which trial has commenced is transferred, the Special Military Court to which the case is transferred shall not, by reason of such transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer, and may act on the evidence already recorded by or produced before the Magistrate who tried the case before transfer. (3) Nothing in this paragraph shall affect 'or be deemed ever to have affected cases pending before Summary Military Courts on the twenty‑fourth day of December 1958, or cases disposed of by such Courts on or before the thirty‑first day of January 1959, and cases tried and disposed of by such Courts on or before the thirty‑first day of January 1959, shall be deemed to have been validly tried and disposed of.

2. Bar of Appeal etc (1) No appeal shall lie from any sentence imposed in a case tried in pursuance of paragraph 1, nor shall any revision lie from any sentence imposed in a case tried by a Special Military Court in pursuance of that paragraph. (2) No appeal or revision shall lie from any sentence imposed in any of the cases tried and disposed of by Criminal Courts under Martial Law Regulations or Orders before the twenty‑fourth day of December 1958, and confirmed subse quently by the Zonal Martial Law Administrator concerned.

3. Revision of sentences imposed by Magistrates (1) From sentences other than death imposed by Magistrates in cases tried in pursuance of paragraph 1, an application for revision shall lie, within fifteen days‑ (a) to the Court of Session in respect of sentences other than imprisonment, transportation or death. (b) to the Court of Session in respect of sentences of imprisonment for a term not exceeding four years, whether or not combined with any other punishment ; (c) to the High Court in respect of all other sentences. (2) The Court of Session in the case of application made under clauses (a) and (b) of sub‑paragraph (1) and the High Court in the case of applications made under clause (c) of that sub‑paragraph shall exercise the powers (other than powers under section 426 of the Code) conferred on a High Court by subsection (1) of section 439 of the Code and pass orders accordingly, and the provisions of subsections (2), (4) and (6) of that section shall apply to the Court of Session or the High Court, as the case may be, hearing the application. (3) No application for revision shall lie from an order passed under sub‑paragraph (2), and no Court shall call such an order in question.

4. Special Procedure in cases of sentence of death imposed by Magistrates: " Where a sentence of death is imposed in a case tried in pursuance of paragraph 1 by a Magistrate, the proceedings shall be submitted to the High Court within seven days for ' confirmation of the sentence, and the High Court shall proceed as upon a reference under Chapter XXVII of the Code of Criminal Procedure but no paper book shall be prepared and the decision of the High Court shall not be called in question in any Court ". Paragraph 1 of Martial Law Regulation No. 61, as amended by Martial Law Regulation No. 66, issued on the 2nd of March 1959, reads as follows :‑ " With effect on, and from the 1st day of March 1959, no case relating to an offence under any of the Martial Law Regulations shall be tried by any Court other than a Military Court, Special or Summary: Provided that cases which are pending in Courts other than Military Courts shall continue to be dealt with in accordance with the provisions of Martial Law Regulation No. 61, as it stood immediately before this Regulation ". Martial Law Regulation No. 66, further directed that para graphs 3 and 4 of Martial Law Regulation No. 61, as it stood on the date of the issue of Martial Law Regulation No. 66 shall be omitted.

3. The argument of Mr. Ata Ullah Sajjad, the learned counsel for the State, was that because the Chief Martial Law Administrator's Regulation No. 61 as it stood on the date on which the order convicting the petitioner was passed as well as on the date this petition for revision was presented did not contain any provision with regard to an appeal or a revision against the order of the original Court convicting a person of an .offence under a Martial Law Regulation or Order, the sentence imposed on the petitioner by the learned Additional ,District Magistrate, Lahore, was immune from scrutiny by this Court. The learned counsel for the petitioner, on the other hand, urged that the law contained in section 6 of the General Clauses Act (X of 1897) with regard to the effect of repeal of statutes was applicable, and the sentences passed by Magistrates in cases which started before the 1st of March 1959 will be subject to the same scrutiny by higher Courts as they were a t the time when, the trial in those cases started. The reply of the learned counsel for the State with regard to this contention of the learned counsel for the petitioner was that the provision of the General Clauses Act could not be invoked for the purposes of matters connected with interpretation etc., of Martial Law Regulations. I am of the view that as nowhere in the Martial Law Regulations has it been said that the General Clauses Act (X of 1897) is to apply to the interpretation of the Martial Law Regulations, the contention of the learned counsel for the petitioner that the interpretation of those Regulations should be in consonance with the. rules contained in section 6 of that Act cannot be accepted. The Martial Law Regulations do not. however, say what rules of interpretation are to be followed with regard to their interpretation, and one has, therefore, to gather the intention of the person who issued a Martial Law E Regulation or a Martial Law Order from the language use6 by him, and if the language used is either not precise or nor clear, the intention should be gathered from the words use by keeping in view all the circumstances prevalent at the time when the Regulation or Order was issued. It is on the basis of this rule of interpretation that I will proceed to consider which of the rival contentions raised by the counsel for the parties with regard to the maintainability of the present petition for revision can be accepted.

4. Paragraph 1 of Martial Law Regulation No. 61, as amended by Martial Law Regulation No. 66, contained a proviso to the effect that cases which were pending in .Courts other than Military Courts on the 1st day of March 1959 shall continue to be dealt with in accordance with the provisions of Martial Law Regulation No. 61 as it stood immediately before the amendment of Regulation No.

61. The contention of the learned counsel for the State was, that no doubt cases relating to offences under Martial Law Regulations and Martial Law Orders, which were pending in Courts of Magistrates on the 1st of March 1959 were as far as the trial before the Magistrate was concerned, to continue to be governed by the same procedure which existed before the amendment of Regula tion No. 61 on the 2nd of March 1959, but when those trials finished, the provisions of paragraph 3 of Martial Law Regulation No. 61, as it stood before the 1st of March 1959, could not be invoked because they were no longer in existence, and, therefore, no petition for revision could be entertained by this Court against the Order of a Magistrate by which a person was convicted on a date after the 1st of March 19,9 for breach of a Martial Law Regulation or Order. If this contention were accepted, the result in some cases will be so startling that it may be safely presumed that it was not intended. It will be noticed that paragraph 4 of Martial Law Regulation No. 61 as it stood at the time of the issue of Martial Law Regulation No. 66, was to the effect that a. sentence of death passed by a Magistrate was to be submitted to the High Court for con firmation within seven days of the sentence and the High Court was to proceed as upon a reference made under Chapter XXVII of the Code of Criminal Procedure, and the decision of the High Court passed on such a reference was to be final and could not be called in question in any Court. Now, if the contention of the learned counsel for the State were to be accepted, the result would be that a sentence of death passed by a Magistrate after the 1st of March 1959 would be final and could be executed‑a result which I cannot bring myself to believe could have been intended by the Martial Law authorities who are not foreign conquerors but members of the armed forces of the country which is their motherland. The learned counsel for the State appears not to have fully considered the language of the proviso to paragraph I of Martial Law Regu lation No. 61 as reconstituted on the 2nd of March 1959 by means of Martial Law Regulation No.

66. It is significant that the proviso says' that cases, which were pending in Courts other than Military Courts on the first of March 1959 were to continue to be governed by the provisions of Martial Law Regulation No. 61 as it stood immediately before Regulation No. 66 was 'issued. If the intention of the Chief Martial Law Administrator were that the provisions of paragraph 3 of Martial Law Regu lation No. 61 as it stood before the issue of. Martial Law Regulation No. 66, were to be inapplicable to sentences passed by Magistrates in cases covered by the proviso to paragraph 1 of Martial Law Regulation No. 61 as amended by Martial Law Regulation No. 66, it would have been mentioned or at least hinted that the orders of Magistrates passed in those case shall be final,. If it had been provided by Martial Law Regulation No. 66 that orders passed by Magistrates in cases covered by the proviso to paragraph 1 of Martial Law Regulation No. 61 as amended by Martial Law Regulation No. 66 were to be looked into by some other authority, it could have been inferred that the provisions contained in paragraph 3 with regard to revisions against orders of Magistrates were no longer applicable, but as no such provisions was made, I have no hesitation in saying that the powers of revision given by paragraph 3 of Martial Law Regulation No. 61 had not been taken away. The same conclusion follows if the matter is looked at from another angle. It is obvious that if it had been intended that the orders of Tribunals of original jurisdiction were to be final the Magistrates would not have been given the uncontrolled powers if the Military Tribunals were not. it is clear that the orders of Military Tribunals of original jurisdiction were no made sacrosanct and I cannot bring myself to believe the Magistrates hearing cases under Martial Law Regulations of Martial Law Orders were given more powers than the Military Courts set up under the Martial Law Regulations. I hold therefore, that the contention of the learned counsel for the State that this petition for revision was incompetent, which was gratifying to learn from the answer he gave to a question asked by me, was raised by the learned counsel himself and not at the instance of the Martial Law authorities is without substance.

5. The question for the answer to which my brother Shaik Muhammad Shafi considered the views of a larger Bench necessary having been answered, the point for consideration is whether as was urged by counsel for both parties, the case is to be returned to him for disposing of the other questions relating to it: I have mentioned in paragraph 1 of this Order that under the rules a petition for revision in a criminal case is to be disposed of by a Judge sitting singly. The rules I alluded to are those contained in the Fifth Volume of the Rules and Orders of this Court which have been framed under the authority of various enactments. Chapter 3‑B of the Fifth Volume of the Rules and Orders of this Court provides which cases are to be heard by a Judge sitting alone 'and which by two or more Judges sitting as a Bench. Rule 1 of the Chapter, which mentions cases which are to be ordinarily heard by a Judge sitting alone, contains 20 clauses the last but one of which says that a petition for revision in a criminal case is to be heard by a Judge sitting singly. A proviso to clause (XX) is to the effect that a Judge sitting singly may if he thinks fit refer any matter mentioned in clauses other than clauses (X VII), (XVIII) and (XX) with the sanction of the Chief Justice, to a Division Bench of two Judges. It will be noticed that the proviso says that a . matter mentioned in any of the clauses specified therein may be referred to a Bench of two Judges. The matter mentioned in clause (XIX) is inter alia a criminal petition for revision and it follows, therefore, that a petition for revision in a criminal case and not merely a point arising therein has to be referred by a Judge singly to a Bench of two Judges if he considers that a Bench of two Judges can more appropriately deal with some of the questions that arise. The learned Judge who referred the case to a Division Bench, no doubt, referred a specific question, to a Bench of two Judges but as under the rules he had :o refer the whole case it is manifest that the whole case has to g be dealt with by this Bench. The view I have taken about the scope of the proviso to clause (XX) of Rule 1 of Chapter 3‑B of Volume V of the Rules and Orders of this Court was taken in Ghulam Rasul and others v. The Crown (P L R 1954 Lah. 273=P L D 1954 Lah. 332) by a Division Bench of which I was a member and nothing was said by the learned counsel for the parties in this case which could make me change the views I expressed in' that case about the matter under consideration. I would, therefore, hold that now that the case is before this Bench it is for this Bench to dispose the whole of it.

6. I will now address myself to the question whether or not the petition for revision has any merit. The relevant facts are that on the 10th of December 1958, Sultan Ahmad, from whom the petitioner is alleged to have accepted the bribe in the present case, applied to a Rehabilitation Officer of Lahore that a part of a house, which was in possession of a person who was not a refugee, be allotted to him. This application of Sultan Ahmad was marked by the Rehabilitation Officer to the petitioner for report. On the 12th of December 1958, Sultan Ahmad made a complaint at the complaint office which had been set up by the Martial Law Authorities at the Y. M. C. A. Hall, Lahore, that the petitioner was demanding a bribe of Rs. 50 from him for giving him the relief to which he claimed he was entitled. This complaint a copy of which is Exh. P. F. on the record, was marked by the Officer in Charge Public Complaint Office to the Inspector Police, Lahore Cantonment, who was directed to arrange a trap. It was alleged by the prosecution that the petitioner had accepted Rs. 30 as bribe from Sultan Ahmad on the 12th of December 1958, and that this money was recovered on a search of his person.

7. At the trial, the prosecution produced Sultan Ahmad (P. W. 1), Mian Mehraj Din (P. W. 2), Muhammad Ali (P. W. 4) and Aziz‑ud‑Din, Assistant Sub‑Inspector, Police (P. W. 5) in support of the case that the petitioner had demanded and accepted a bribe Sultan Ahmad (P. W. 1) deposed that his application for allotment of a portion of a house had been sent by the Rehabilitation Officer to the petitioner for report and that the petitioner had, when he saw him, asked him to give Rs. 50 if he wanted a report in his favour. He added that he approached the Complaint Office set up by the Martial Law Authorities at the Y. M. C. A. Hall, Lahore, and in writing made a complaint which was sent to the Inspector of Police, Lahore Cantonment, for appropriate action, that he got numbers of currency notes of the value of Rs. 50 noted by the Inspector of Police, that he had in a street handed over Rs. 30 to the petitioner who had accepted the money, that on a signal given by him a police officer and some witnesses arrived and that on a search of the person of the petitioner Rs. 30 were recovered. With regard to recovery of Rs. 30 from a search of the petitioners person, the evidence was also given by Mehraj Din (P. W. 2), Muhammad Ali (P. W. 4) and Aziz‑ud‑Din Assistant Sub‑Inspector (P. W. 5).

8. It is established by the evidence on the record that from the beginning the case of the petitioner was that he had been falsely involved and that Bashir Husain. a Head Constable of the Police Post within the jurisdiction of which the place where the offence was alleged to have been committed by him lay, was inimical towards him, because he had not taken as prompt an action on the application of the Head Constable regarding allotment as the Head Constable would have him take. In his statement before the Additional District Magistrate under section 342 of the Code of Criminal Procedure when he was questioned to explain the circumstances appearing in the prosecution evidence against him, the petitioner stated that he was innocent and that the main reason for this false case against him was that " Bashir Husain Head Constable was not favourably disposed towards him. No evidence was produced in defence.

9. The main question for consideration is whether or not the petitioner had, as found by the learned Additional District Magistrate, Lahore, actually accepted the bribe offered to him by Sultan Ahmad. The decision 'of this question depends on the weight attachable to the depositions of Sultan Ahmad (P. W. 1) Mehraj Din (P. W. 2), Muhammad Ali (P. W. 4) and Aziz‑ud‑Din, Assistant Sub‑Inspector, (P. W. 5) Mehraj Din (P. W. 2) and Muhammad Ali (P. W. 4) are by no means independent witnesses because it is established by the evidence on the record that the petitioner had made reports against them with regard to non‑payment of rents due from them for occupation of evacuee property. As regards the state ment of Sultan Ahmad (P. W. 1), it loses much of its weight because of his admission in his deposition in Court that at the time of the incident he had offered the bribe to the petitioner twice but he had refused to take it, and accepted it about a couple of minutes of the second refusal. Acceptance of a bribe in a public place, which it was alleged was done in the present case, is not a very probable thing, but if the evidence about it is satisfactory no Court will hesitate to give a finding that the bribe was accepted. But as has been pointed out above, the evidence of Mehraj Din (P. W. 2) and Muhammad Ali (P. W. 4) is not of such a character as to remove all doubts from one's mind that, at least in part, the version given by them was not true. It is established by the evidence of Aziz‑ud‑Din A. S. I. (P. W. 5) that at the time of his arrest the petitioner was carrying in a bag a number of applications including one put in by Bashir Husain Head Constable, weeks earlier, and, therefore, the plea of the petitioner that Bashir Husain Head Constable was not favourably disposed towards him is not entirely without foundation. There is, therefore, some force in the contention of the learned counsel for the petitioner that Bashir Husain Head Constable had probably quite a lot to do with the case. The mere fact that Bashir Husain, Head Constable of Police, did not like the petitioner would, perhaps, not have been held by me to be sufficient evidence to prove that the Assistant Sub‑Inspector had made up a false case against the petitioner had it not been for some other relevant circumstances. One of these circum stances is that within about four months of the imposition of Martial Law, a police officer was entrusted with the catching of a public servant who was alleged to be demanding a bribe and it is not unlikely that the police officer, who was entrusted with the laying of a trap to catch the petitioner red‑handed would try to show to the military authorities that he was very vigilant and competent. The petitioner stated that though Sultan Ahmad had offered him money on the day, of the occurrence he had refused to take it upon which Sultan Ahmad had thrown the money towards him and it fell on the ground from where it was recovered by Aziz Din, Assistant Sub‑Inspector. The question whether or not the petitioner had demanded a bribe from Sultan Ahmad (P. W. 1) is one that does not require determination for the purposes of the case presented in Court and I need not, therefore, consider whether Sultan Ahmad (P. W. 1) is a witness of the type whose assertion that the petitioner had demanded the bribe should, uncorroborated by the deposition of anyone else as it is, be accepted as conclusive proof of his assertion in spite of the fact that his deposition in Court has a hollow ring at, places, but even if it be assumed that the petitioner had demanded the bribe it is by no means improbable that either the fear of the punishment prescribed by the laws of God for the misdeed intended to. be committed or the dread of punishment prescribed by the mundane laws had made him change his mind or he was not prepared to take the grave risk involved in accepting a bribe in a public place open to view. As the evidence to support the prosecu tion case that the money was recovered on a search of the person of the petitioner cannot be held to be strong enough and the explanation of the petitioner is not improbable, I am of the view that the conviction of the petitioner is not free from risk. Consequently, giving the benefit of doubt to the petitioner I would accept his petition for revision and acquitting him direct his immediate release. S. A. HAQ, J.

I agree. A.H. Petition accepted.