P L D 1979 Karachi 623 (PLP)

Major President, Summar Military Court No. 3, (M. Zulfiqar Arshad)."

5. An examination of M. L. O. 5, issued by the Martial Law Adminis trator, Zone 'C', as it stood at the time of the conviction of the petitioner, indicates that it only provided for the investigation and trial of cases of corruption, acceptance of illegal gratification and abetment of such offences, and did not create any offence. The said Martial Law Order at the relevant time was as under :‑

"Whereas the Chief Martial Law Administrator has delegated to the Martial Law Administrator, Zone ' C' the powers of making Martial Law Orders; Now, therefore, Lt: Gen. Jehanzeb Arbab, H. J., S. J., hereby makes the following orders :‑ (1) The following cases shall be investigated by the officers of the Armed Forces appointed in this behalf and tried by Military Courts. (2) All cases in which a person‑- (i) offers or attempts to offer, accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration or any valuable thing without consideration or for a consideration which he knows to be inadequate, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show favour or disfavour to any person or for inducing by corrupt or illegal means or by exercise of personal influence any public servant to do or to forbear to do any official act; (ii) dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him of under his control as a public servant; or (iii) by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; (iv) abets any offence mentioned above."

6. A plain reading of the aforesaid order makes it quite evident that the intention was merely to provide for the investigation and trial of the cases referred to in the said Order and not to create any new offence. We are fortified in our view by the provisions of M. L. O. 59, issued by the Zonal Martial Law Administrator, on 13‑5‑1978, which reconstituted M. L. O.

5. It was then for the first time that offence under the amended' Martial Law Order were created. No doubt this amending Martial Law Order was given retrospective effect and it was provided that it shall be deemed to have always been so reconstituted, but we do not think that these words can be construed to validate a conviction which was recorded much before the issuance of this Order and which otherwise plainly was illegal. The material part of amending M. L O. 59, which is couched in substantially different language from that of the original Martial Law Order, read as under :‑ "

1. No person shall‑ (i), offer or attempt to offer, accept or obtain or agree to accept or attempt to obtain from any person for himself or for any other person, any gratification other than legal remuneration or any valuable thing without consideration or for a consideration which he knows to be inadequate, as a motive or reward for doing or forbearing to show favour or disfavour to any person or for inducing by corrupt or illegal means or by exercise .of personal influence any public servant to do or to forbear to do any official act; OR (ii) dishonestly or fraudulently misappropriate or convert for his own use any property entrusted to him or under his control as a public servant; . OR (iii) by corrupt or illegal means or by otherwise abusing his position as public servant obtain for himself or for 'any other person any valuable thing pecuniary advantage; OR (iv) abet any offence mentioned above.

2. An offence under this Order may be investigated in Enquiries and Anti‑Corruption Establishment or any other Agency so empowered under any law for the time being in force or members of Armed Forces appointed in this behalf."

7. A comparison of the two Martial Law orders makes it clear that whereas the object of the original Martial Law Order was limited to investigation and trial of corruption cases, the intention of the amending Martial Law Order was additionally to create new offences under Martial Law. Sin M. L. O. 5, at the time when the petitioner was convicted and sentenced, did not create any offence, M. L. R. 14 was not attracted, as the latter provides for a contravention of a Martial Law Order. A similar view was taken by the Lahore High Court in the case of Dil Mohammad v. Summary Military Court (P L D 1978 Lah. 796). In that case, the question arose whether M. L. R. 14 was applicable to M. L. O. 7, issued by the Martial Law Administrator. Punjab, before its reconstitution. The said Martial Law Order, as it origi nally stood, merely provided for trial by the Military Courts of certain offences of bribery, corruption and taking of illegal gratification by Govern ment servants. It was held that the Martial Law Regulation was not applicable thereto, since there could be no contravention of such an order.

8. There are two more substantial objections, in our view, to the trial and conviction of the petitioner by the Summary Military Court, affecting its jurisdiction. The first of these is the fact that, as provided in the Pakistan Criminal Law Amendment Act, 1958, the Special Judges appointed under the said Act have exclusive jurisdiction to try a public servant in respect of the offences specified in the Schedule to that Act, including on offence o demanding and accepting illegal gratification, as in the instant case. No doubt, paragraph 2 of M. L. O. 4 has empowered both Special Military Courts and Summary Military Courts to try and punish ‑any person not only for contravention of Martial Law Regulations or Orders but even for offences under any other Law, but we are not persuaded to the view that the said provision empowers the Military Courts to try offences which are exclusively triable by Special Courts. Tribunals and Judges. There is a presumption against creating new and ousting established jurisdictions. As stated by Maxwel on the Interpretation of Statutes, (Twelfth Edition, page 15); "It is also presumed that a Statute does not create new juris dictions or enlarge existing ones, and express language is required if an Act is to be interpreted as having this effect. "There is nothing in M. L. O. 4, as in force at the time of the trial of the petitioner, from which it could be inferred that the Military Courts were also empowered to try cases falling within the exclusive purview of Special Judges, Courts and Tribunals. The intention of the law‑maker in this behalf is further made clear by M. L. O. 54, which expressly provides that notwithstanding any provision contained in any law for the time being in force by virtue of which an offence is triable exclusively by a Special Court, Special Judge or any other type of Tribunal, such offence shall, in cases in which the Chief Martial Law Administrator so directs, be triable by a Military Court. This M. L. O. would have been wholly redundant if M. L. O. 4 had conferred powers on Military Courts to try all offences including offences exclusively triable by Special Judges Courts etc. M. L. O. 54, while on the one hand specifically empowering the Military Courts to try such offences, notwithstanding anything contained in any other law, permitted such a trial only in those cases where the Chief Martial Law Administrator had so directed. It is thus clear that only in special cases the Military Courts have been empowered to try offences otherwise exclusively triable by Special Courts and Tribunals. A similar view was taken by the Quetta High Court in the case of Mohammad Niaz v. Martial Law Administrator (P L J 1979 Quetta 2). It was held in that case that notwithstanding the provisions of M. L. O. 4, the jurisdiction of the Special Judge to try scheduled offences remains exclusive and undisturbed.

9. The last but by no means the least important objection to the trial of the petitioner by the Summary Military Court is the fact that under the Pakistan Criminal Law Amendment Act, 1958, a public 'servant can only be tried after requisite sanction for his prosecution has been obtained. No Martial Law Regulation or Martial Law Order has affected this provision in the existing law. The requirement of sanction is not only for the benefit of public servants. It is in fact in the interest of the Government itself and the policy behind the requirement of sanction is that it should be left to the Government to decide, in each case, whether it would be in the interest of public policy and the State that a public servant should be tried in a Court of law or he should be dealt with departmentally. Admittedly, in the instant case, no sanction was obtained to the prosecution of the petitioner.

10. For the reasons discussed above, we are of opinion that the trial and conviction of the petitioner by the Summary Military Court was without jurisdiction. We would, accordingly, quash the same. We are informed that the petitioner has already been released from jail. It is needless to add that the acceptance by us of this petition will not legally preclude the trial of the petitioner before a Special Judge, of course after obtaining necessary sanction to his prosecution. S. A. H. Petition allowed.