P L D 1979 Quetta 179 (PLP)

I am therefore of the view that M. L. O. 4, has, in no way, affected the provisions of the Act. On the contrary the Act being a special legislation, while M. L. O. 4 is a general law, the provisions of M. L. O. 4 will give way to those of the Act. Thus the jurisdiction of the Special Judge to try scheduled offences remains exclusive and undisturbed.

5. Next ground taken is that the procedure under the Act is more beneficial to the accused persons than the procedure followed by the Special Military Courts. In the case of the former the accused person is allowed to be represented through lawyers while not so in the later. Special Judge under the Act is required to record evidence while the Military Courts do not so. A Special Judge has to give a reasoned judgment whereas the Military Court has only to record a verdict of guilty or otherwise. Additionally the training and background of the officers, presiding over the Court of a Special Judge is of a high order, because generally Judicial Officers of sufficient seniority are appointed to such jobs ; while the Military Officers presiding over the Military Court cannot compare with such Judicial Officers. The learned counsel for the petitioner, therefore contends that the petitioner should have been tried under the Act, while following the rule of beneficial construction. In support of above contention the learned counsel relies upon State v. Mir Ahmad Shah (P L D 1970 Quetta 49). But in the cited case the learned Single Judge, while following the Federal Court authority in the case of Muhammad Haroon (P L D 1951 F C 118), held that the rule of beneficial construction applies only if the language of the statute is so ambiguous that E the two constructions are almost equally possible. In the present case, as in the cited case, no ambiguity is shown, and none is apparent. Therefore benefit of rule of beneficial construction cannot be claimed.

6. The next contention raised by the learned counsel for the petitioner is that the ordinary Courts continue to have jurisdiction and that trial of offenders like the petitioner is not the object for which Martial Law was imposed. Therefore it is contended that the trial of the petitioner by Special Military Court is not justified. The learned counsel has, in this behalf, relied upon Mir Hasson's case (P L D 1969 Lab. 786). In Mir Hassan's case the question for consideration was if a person accused of an offence under the Act could to tried by Military Court. Martial Law Regulation 42 of 1969 empowered a Zonal Martial Law Administrator to direct that any case under the ordinary law pending in any Criminal Court be transferred for trial before a Military Court. The contention raised in that case was that Martial Law Regulation No. 3 as re‑constituted by Martial Law Regulation No. 45, was overriding in nature, because of use of words 'notwithstanding anything contained in these regulations' and that by necessary intendment power to transfer cases conferred on Zonal Martial Law Administrator by M. L. R. 42 was taken away. This contention was accepted. Additionally it was held that an offence created by ordinary law could not be tried by a Military Court unless such offence was committed while resisting the Martial Law itself. The reasons for such view are contained in paras. 33 to 36 of the opinion recorded by Mushtaq Hussain, J. (as he then was), whose extracts are given below "

33. I would like to make it clear that the common notion that Martial Law is the will of the Military Commander is not applicable to the circumstances attending the present Martial Law at all. The sort of Martial Law in which the will of the Military Commander is the law has more than once been dubbed as a State of lawlessness, and rightly so because the whim of any body, even if he be a Military Commander, cannot be called law. The commonly understood meaning of Martial Law is applicable to a country which has been occupied by the enemy force and which is ruled by them. There the will of the Martial Law Commander would be the law. But can it be said that the imposition of Martial Law in this country is synonymous with occupation by the force of the enemy. The answer would be a clear "No", Martial Law was not imposed by the Chief Martial Law Administrator after having wrested power from the Constitutional Government by force." Thereafter, the report goes on to quote the outgoing President as to the state of affairs then prevalent in the country, which forced him to hand over power to the Commander‑in‑Chief of the Army, who proclaimed Martial Law. After referring to the objects of imposition of Martial Law the learned Judge observed; "Martial Law as imposed, therefore, with the declared purpose of `restoring sanity' `restoring and saving the country from internal disorder and chaos' and to `ensure that the administration resumes its normal functions to the satisfaction of the people'. There is not one word either in the letter of the former President to the Commander‑in‑Chief, or in the speech of the Chief Martial Law Administrator, or even in the Proclamation of Martial Law to suggest that the existing machinery for dispensing justice was found wanting or that it was to be subject to curbs or that a State of affairs was to be brought about in which the will of the Martial Law Commander was to be enforced. The Martial Law Authorities and even the Chief Martial Law Administrator himself are bound by the proclamation, Regulations and Orders as any other citizen in the country. No one including the Chief Martial Law Administrator, can be transferred or deviate from the sole purpose of restoring law and order and democracy and it needs no gainsaying that curbing the jurisdiction of the established Judiciary is not a step in that direction and it is for this reason that the Chief Martial Law Administrator never made any secret of the fact that;-- "The ordinary Courts including the High Court shall exercise in their jurisdiction." Then the report refers to the opinion of the Solicitor‑General as to the power of the Governor of Canada, and goes on to observe; "It is hardly necessary for us to add that, in our view of the Martial Law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance couples its adoption." The conclusions arrived at by his Lordship, on the point, appear in sub para. (vii) of para. 37, and are as follows :‑ "(vii) If Martial Law is enforced, to quell riots and acts of indiscipline and to restore normalcy, order and democracy in times of peace the ordinary Courts continue to exercise their jurisdiction over civil and criminal matters and the same cannot be made the subject‑matter of curbs. When the ordinary Courts are open and functioning, persons accused of offences against ordinary law have to be brought before them, and them alone, to be dealt with according to law and, to quote the learned Law Officers named above, there is not, as we conceive, any right in the Crown to adopt any other course of proceedings'." This judgment was duly approved by the Supreme Court in Asma Jillani's case (PLD1972SC139). In further support of the contention that the declared objectives of the present Martial Law are other than the trial of offenders of the type of the petitioner, the learned counsel has relied upon Begun Nusrat Bhutto's case (PLD1977SC687), wherein their Lordships of Supreme Court have observed :‑. "It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the Federal and the Provincial executives and Legislatures." It is therefore contended that even in the context of present Legal Order the jurisdiction of the Ordinary Courts remains undisturbed and that no case under the ordinary laws, which does not amount to resistance of the Martial Law can be taken away from them. The learned Advocate‑General has tried to meet this contention by relying upon a Full Bench judgment of this Court reported as Khudiadad v. Martial Law Administrator (P L D 1978 Quetta 177). One of the questions referred to the Full Bench was if Martial Law Order No. 4 is a valid piece of legislation. The second question referred to the Full Bench related to the extent of jurisdiction of this Court in petitions challenging the orders, etc. of Military Courts.

7. It is contended that as the answer of the Full Bench to the first question was in affirmative therefore the power of the Zonal Martial Law Administrator to transfer a case cannot be challenged. The question of validity or otherwise of M: L. O. 4 is not raised before us. While the Fin! Bench was seized of this question the scope of M. L. O. 4 and reconciliation of its provisions with those of the Laws (Continuance in Force) Order was not before that Bench. Furthermore validity of M. L. O. 4, does not mean that a Martial Law Administrator has powers to transfer cases, even where this Martial Law Order does not extend. The Full Bench judgment has, therefore, no bearing on the question before us. The question raised before us, and which question stands fully resolved by Mir Humaln's case is that an ordinary citizen cannot be tried by a Military Court for an offence created by ordinary laws and which offence is not committed by way of resistance of the Martial Law itself. Another case relied upon by the learned Advocate‑General is an unreported D. B. judgment of this Court in Sultan Muhammad Tarik v. The Chief Martial Law Administrator Civil Petition No. 127 of 1978. In that case. the proposition put forward was that under section 185‑B of the Customs Act, the Special Judge under the Customs Act has the powers to try an offence under that Act. The learned Judges presiding over that Bench, while taking note of the legislative powers of the C. M. L. A. held that‑

"since the Martial Law Administrator had directed the trial by the Military Court ; to such extent the jurisdiction of the Special Judge stood ousted." It is clear from this observation that the effect of a special law over that of a general law and the nature of M. L. O. 4 being a general law, were neither canvassed before that Bench, nor came under examination. This judgment therefore cannot be pressed into service. As observed earlier the petitioner is charged with scheduled offences only and is not alleged to have contravened any Martial Law Regulation or a Martial Law Regulation or a Martial Law Order. Therefore in view of the above‑cited principle he cannot be tried by a Special Military Court.

8. The learned counsel has further contended that there is a lacuna in the law inasmuch as it does not give a power to the Police Officer to submit a challan to a Military Court. This contention is raised with reference to the provisions of section 173, Cr. P. C , which according to the learned counsel confers a power on a Police Officer to submit final report to the Court empowered to take cognizance of the offence. It is contended that no like power is conferred upon a Police Officer, which the officers of the F. I. A. are, to submit such report to a Military Court. It is conceded that the F. I. A. has the power to investigate the offences alleged in the present case, but that, though they have the power to submit challan to the Special Judge, who is empowered, in terms of section 173, Cr. P. C. to take cognizance of an offence but not the Military Court. It is also conceded that a Military Court is conferred with power to take cognizance of offences triable by such Court, by virture of a para. 2 (2) of M. L. O. 4, as amended by M. L. O.

37. It is however contended that the bridge, or the nexus between the investigation and the taking of cognizance is missing. It is a misconception to allege that section 173, Cr. P. C. confers a power on a Police Officer to submit final report. On the contrary this provision of law enjoins upon a Police Officer, as a matter of duty, to complete investigation without undue delay and to submit final report before the Court which is empowered to take cognizance of the offence. The section reads as follows :‑‑ "173.‑‑(1) Every investigation under this chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of the Police Station shall‑ (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed " A bare perusal of this provision indicates that it gives certain directions to the Investigating Officer and incharge of a Police Station. It cannot be claimed that m the absence of a similar direction a Police Officer does not have the requisite authority to submit a report to a Military Court. On the other hand clause (b) of para. 2 (2) recognises that cognizance can be taken on a written report by a Police Officer.

9. Secondly the power to take cognizance is independently conferred on a Military Court by para. 2 (A I R 1958 Tripura 1) of M. L. O.

4. This power includes the power to take cognizance on a report submitted by a Police Officer. The power to take cognizance cannot be whittled away by the mere absence of a provision whereby a Police Officer could be required to submit a final report. In Abdul Hameed v. State (2), it is held that a defect or illegality in investigation, however serious, has no direct bearing on the competence of the procedure relating to cognizance or trial. Earlier the Indian Supreme Court had in H. N. Rishbud v. The State (A I R 1955 S C 196) expressed the same views and further observed that it could not be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. The contention therefore that because there is no provision empowering a Police Officer to submit a challan renders illegal the cognizance taken by the Military Court, is without any substance. Finally it is contended that the trial of the petitioner before the Military Court is mala fide. An allegation of mala fide is not only to be pleaded but is also to be proved. The petitioner in his para. 4 has contended that one Muhammad Zaman Achakzai who is styled in the petition as a highly influential politician and President of the Provincial P. N. A., wanted that electricity line be taken direct to his village Gulistan, instead of supplying electricity to Killa Abdullah and the areas surrounding it. According to the petitioner said Muhammad Zaman Achakzai approached the petitioner many times but because the request related to a separate project, with which the petitioner had no concern, therefore he could not oblige him. On his refusal to do so Mr. Achakzai became inimical towards the petitioner and approached the local Martial Law Authorities to start enquiries against him. It is also contended by the petitioner that he is an S. D. O. had nothing to do with the approval of the scheme or sanctioning of the sites of the tub‑wells. He alleged that respondent No. 4, being related to Mr. Fazal‑e‑Ahad, the Executive Engineer First Operation Division WAPDA, hatched a conspiracy to save the said X. E. N. and to rope in the petitioner. Subsequently the petitioner also filed two affidavits, one on 18th September, 1978, and the other on 20th September, 1978. In the first of these affidavits it is alleged that Mr. Muhammad Zaman Achakzii, who has since become a Central Minister, alongwith . F. I. A. people, was persuading persons, co‑accused with the petitioner, to give evidence against the petitioner and that for such purpose respondent No. 2 and the said Mr. Achakzai visited the jail several times. In the second affidavit it is specifically contended that respondent No. 2, alongwith Muhammad Zaman Achakzai and one Major Riaz visited the .District Jail, Quetta on 10th August, 1978 where all the three persons met co‑accused Haji Abdullah Jan and Sher Mohammad and prompted, them to give evidence against the petitioner. It is further alleged that the said co‑accused were assured that if they gave evidence against the petitioner they would be released on bail. The first affidavit further contends that on 31st August, 1978, the District Magistrate. Quetta directed the Jail Superintendent to hand over accused Abdullah Jan to the F. L A. for recording his confessional statement. Such accused was twice taken by the Inspector F. I. A. to the Magistrate for this purpose, but the statement could not be recorded. On 3rd September, 1978, according to the affidavit, the District Magistrate again, through a letter, 'asked. Superintendent, District Jail, Quetta to hand over Rehmat Ullah and Asmat Ullah the other two co‑accused persons, to the F. I. A. Inspector for the purpose of recording their confessional statements. The direction was complied with and the statements were duly recorded. It is further alleged in the affidavit that the confessional statements were recorded on 3rd September, 1978 and on the next day, i.e. 4th September, 1978 all the five co‑accused were released on bail by the Summary Military Court. Some of these allegations are duly denied, while others stand uncontro verted. But even if all these allegations are true, they are of no relevance to the point in issue before us. The challenge before us is to the forum of trial. In order to press mala fides he should have shown that his trial before a Military Court, as against the normal Courts, is dictated by mala fide intentions. On the contrary the facts alleged and briefly narrated above, try to hit at the merits of the case, as distinguished from the, forum of trial. Such facts, therefore, cannot be gone into in the present petition.

10. In view of the foregoing discussion I am of the view that provisions of the Act are of overriding nature ; that the provision of M. L. O. 4 as amended by M. L. O. 37, have to give way to the provisions of the Act ; and that trial of citizens for offences, other than the offences created by Martial Law Regulation or Martial Law Orders, cannot take place before Military Courts unless such offences are committed while resisting the Martial Law itself. I would accept the petition and declare that the taking of cognizance by the Summary Military Court No. 1, Quetta of the offence, alleged to have been committed by the petitioner is without lawful authority and of no legal effect. There will be no orders as to costs. S. A. H. Petition accepted.