P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑This petition seeks a writ of habeas corpus, a writ of certiorari, or any other appropriate writ with regard to Chaudhri Zahoor Elahi who is confined in the District Jail, Gujrat. The petition which was made by Chaudhri Manzoor Elahi, a brother of Chaudhri Zahoor Elahi, alleges inter alia that Chaudhri Zahoor Elahi (to be referred to hereafter as the detenu) was arrested on the 22nd of October 1958 at Gujrat by Lt. Agha for not removing what was alleged to be an unauthorised encroachment upon a portion of the road adjacent to his residential house which he was bound to do before the 20th of October, 1958 under Martial Law Order No. 10 promulgated by Lt. Col. Muhammad Umar Khan, Martial Law Administrator, Sector B, Rawalpindi Area, that on the 25th of October, 1958 the detenu was tried by a Summary Military Court at Gujrat and sentenced to six months' rigorous imprisonment, that the con viction of the detenu was illegal because Martial Law Order No. 10 issued by Lt. Col. Muhammad Umar Khan covered only those encroachments which were on roads, streets and bazars, and the encroachment, if any, made by the detenu did not answer that description, that in any case the Martial Law Order did not make punishable the acts or omissions ascribed to the detenu, that the detenu had been denied the facilities open to him under the relevant law, that the Municipal Committee, Gujrat, had obtained the conviction by practising fraud on the Summary Military Court, that Martial Law Order No. 10 was not promul gated by a competent authority because Lt. Col. Muhammad Umar Khan was not a Martial Law Administrator and that the officer who held the Summary Military Court being below the rank of a Lieutenant Colonel, could not because of the provisions contained in section 101 of the Pakistan 'Army Act, 1952, pass a sentence of imprisonment exceeding three months. The reply put in by the Advocate‑General, West Pakistan, denied most of the assertions of fact by stating that they could not be replied to for lack of knowledge. Some legal points, however, were raised in the reply and of them those that require mention were the following :‑ (1) That the order of the Summary Military Court could not be questioned in this Court ; (2) that Lt. Col. Muhammad Umar Khan was competent to pass Martial Law Order No. 10, the contravention of which led to the conviction of the detenu, and (3) that though the officer who held the Summary Military Court and passed the impugned sentence was a Major in rank, he was competent to pass the sentence.

2. The first question to‑ consider is whether the objection raised by the learned Advocate‑General to the effect that the order of the Summary Military Court was immune from scrutiny by this Court is correct because if that contention is accepted, it will not be necessary to go into the other points raised in the petition or argued at the hearing. The reliance of the learned Advocate-General with regard to this Court having no jurisdiction in the matter was on President's Order (Post‑Proclamation) No. 1 of 1958, entitled."Laws (Continuance in Force) Order, 1958", which was issued by Major General Iskander Mirza, the then President of Pakistan, on the 10th of October 1958. Paragraph 3 of that Order reads as follows : ‑ "No Court or person shall call or permit to be called in question‑ (i) The Proclamation ; (ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation; (iii) any finding, judgment or order of a special Military Court or a Summary Military Court." The argument raised by the learned Advocate‑General was that no Court of ordinary jurisdiction including this one had juris diction to question the finding, judgment or order of a Military Court and that in fact neither this Court nor any other Court of ordinary jurisdiction could permit the finding, judgment or order of a Military Court to be called in question. The language of the paragraph relied upon by the learned Advocate‑General is no doubt extremely general in terms and the question for determi nation is whether the paragraph has as wide a scope as was contended for by the learned Advocate‑General. I have given the matter my most anxious consideration and have arrived at the conclusion that it is not In all cases that the jurisdiction of this Court with regard to a judgment or order of a Military Court has been taken away. I am of the view that while this Court will have no jurisdiction to determine whether or not a finding, judgment or order of a Military Court was justified, there is no A ouster of jurisdiction where the order of the Military Court is without jurisdiction. If a Military Court passes a sentence on a. person it could not try, or tries an offence it was not given the power to try or passes a Sentence it was not competent to pass, the order will be without jurisdiction and will not enjoy the immunity from scrutiny by this Court. My reliance incoming to the above conclusion is on the well‑known principle of law that an order which is without jurisdiction cannot be treated as an order for any purpose. If, therefore, it can be established that the Summary Military Court whose order is questioned by this petition had no jurisdiction to pass it, the powers of this Court to issue an appropriate writ cannot be deemed to have been taken away because, if the impugned order was without jurisdiction, it could not be considered to be the order of a Summary Military Court for the purposes of paragraph 3 of the. Laws (Continuance in Force) Order 1958. If, for example, a Summary Military Court can pass a sentence of imprisonment not exceeding one year but a sentence, exceeding that period has been passed by a Summary Military Court, this Court could in the exercise of powers conferred on it by section 491 of the Code of Criminal Procedure and the power of granting writ of habeas corpus conferred on it by sub paragraph 4 of paragraph. 2 of the Laws (Continuance in Force) Order, 195$, pass an order setting the convicted man at liberty after the sentence of one year's imprisonment which the law allowed the Military Court to pass had expired. It. is, however, undeniable that if it cannot be found that the order of the Summary Military Court was without jurisdiction, no Court of ordinary jurisdiction including this Court will have jurisdiction to declare that order to be incorrect in spite of the fact that the C findings given by the Military Court were full of gross and inexplicable errors of any dimension or the sentence was con sidered to be of a severity which appeared to, be uncalled for. The question whether the evidence before the Summary Military. Court justified the conviction of the detenu would not be open to determination by this Court because a Summary Military Court can try all offences and persons by virtue of clause (a)v of Regulation No. 1‑A of Martial Law Regulations, but whether or not the sentence passed by the Summary Military Court was with or without jurisdiction is a question which can be gone into by this Court, and if the conclusion be that the sentence passed by the Summary Military Court was beyond its power, there will be nothing to prevent this Court from passing an order of release of the detenu if the term to Which the sentence of the Military Court could extend had expired. But whether or not such an order will be passed in a case will depend on a variety of circumstances because the power to issue a writ is discretionary and no one can claim to be en‑titled to a writ.

3. Before dealing with the other points, I might dispose of the contention of the learned Advocate‑General that in view of the language of paragraph‑ 3 of the Laws (Continuance in Force) Order, 1958, this Court could not permit any person to question the order of the Summary Military Court. I have held that it is open to this Court to pass an appropriate order if it comes to the conclusion that the order of the Summary Military Court is without jurisdiction and as in some cases it will not be possible to give a finding with regard to the order of the Military Courts being with or without jurisdiction without hearing the party which attacks it on the ground that it is without jurisdiction, this Court is not precluded from hearing arguments with regard to the question which would determine its own jurisdiction in the matter.) I would, therefore, hold that the paragraph relied upon by the learned Advocate‑General did not prevent this Court from allowing the petitioner or his counsel to address arguments on the point of jurisdiction of this Court with regard to an order passed by the Summary Military Court, because if the order of the Military Court was without jurisdiction, it could not be con sidered in law to be the order of the Court at all.

4. Having held that if the order of the Summary Military Court 'passed against the detenu was without jurisdiction, this Court could issue an appropriate writ, I proceed to consider whether it has been established that the impugned order was without jurisdiction. One of the contentions of the learned counsel for the petitioner was that as the officer who acted as a Summary Military Court was below the rank of a Lieutenant Colonel, section 101 of the Pakistan Army Act precluded him from passing a sentence exceeding three months' rigorous imprisonment, and, therefore, the sentence passed on the detenu in excess of three months was without jurisdiction and as three months had already expired,‑ this Court could, in the exercise of its powers under section 491 of the Code of Criminal Procedure and its power to issue writs of habeas corpus direct immediate release of the detenu. The reliance of the learned counsel for the petitioner with regard to the officer who passed the sentence being incompe tent to pass one exceeding three months was on section 101 of the Pakistan Army Act, which reads as follows :‑ "A Summary Court Martial may pass any sentence which may be passed under this Act except a sentence of death or transportation or of rigorous imprisonment for a term exceeding one year : Provided that if the officer holding the Summary Court Martial is below the rank of Lieutenant Colonel, he shall not award rigorous imprisonment for a term exceeding three months." Another provision of law which has to be taken into consideration is Regulation 1‑A of Martial Law Regulations issued by the Supreme Commander and Chief Martial Law Administrator in Pakistan on the 7th of October 1958. The relevant part of this Regulation is clause (c) which reads as follows :‑ "(c) Summary Military Courts.‑An Administrator of Martial Law may, by general or special order, empower any magistrate of the first class or any military, or naval or air force officer provided that he has been specially selected for this particular duty to hold a Summary Military Court in his area of adminis tration for the trial of any offence committed in that area. Subject to the provisions of these Regulations, a Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952, and the provisions of that Act and the rules made thereunder shall apply to, and govern, all such proceedings, provided that : (i) No other officer shall be required to attend such proceedings; (ii) The Court shall not be required to record more than a memorandum of the evidence or to frame formal charges ; (iii) The Court may try any offence without reference to superior authority; (iv) The Court may pass any sentence authorised by law or by these Regulations except death, transportation, or imprisonment exceeding one year or whipping exceeding 15 stripes ; (v) The proceedings of every Summary Court shall without delay be forwarded for review to the Administrator of Martial Law in the area in which the trial was held. An Administrator of Martial law may by general or special order, give directions as to the distribution among the Summary Military Courts of cases to be tried by them." The argument of the learned counsel for the petitioner was that the powers of a Summary Military Court to pass a sentence under the Martial Law Regulations was subject to the came limitations as those of a Summary Court Martial held under the Pakistan Army Act, 1952, and therefore the sentence which could be imposed on the detenu could not exceed three months. It was contended that the provision in clause (c) of Regulation 1‑A to the effect that a Summary Military Court may pass any sentence authorised by law or the Regulations except death, transportation or imprisonment exceeding one year or whipping exceeding fifteen stripes, did not do away with the clog on the powers of Military officers placed by section 101 of the Pakistan Army Act. Having fully considered the matter, I have arrived at tile conclusion that this argument cannot be accepted. It will be noticed that under the Martial Law Regulations powers of Summary Military Court may be exercised by a Magistrate of the First Class or any Military, Naval or Air Force Officer who is specially selected for that particular duty by an officer competent to make the selection. If the contention of the learned counsel for the petitioner that the limit of maximum sentence that can be passed by an officer of a particular rank is fixed by the Pakistan Army Act were accepted, the result will be that while only an officer who held the rank of Lieutenant Colonel or above in the Pakistan Army could pass a sentence of one year's imprisonment while acting as a Summary Military Court under the Martial Law Regulations, an officer in the Pakistan Navy or in the Pakistan Air Force could pass that sentence be his rank even the lowest. This, in my opinion, could never have been intended, and at any rate the language of Regulation 1‑A makes it clear that the pro visions contained in section 101 of the Pakistan Army Act with regard to maximum sentence that an officer below the rank of Lieutenant Colonel in the Pakistan Army could pass was done i away with by the Regulation. I would, therefore, hold that the sentence passed on the detenu could not be deemed to be without jurisdiction with regard to the period exceeding three months on the ground that it was passed by a Military Officer whose rank was lower than that of a Lieutenant Colonel.

5. While on the question of the jurisdiction of the Summary Military Court to pass the sentence it passed, I might dispose of another contention of the learned counsel for the petitioner. He urged that the maximum sentence that could be passed even if the facts alleged against the detenu were proved, was a fine of rupees fifty only because the offence, if any, would fall under section 172 of the Punjab Municipal Act and at any rate the sentence could not exceed rigorous imprisonment for three months because if it be considered to be a case of trespass on Municipal land, the offence would be punishable under section 447 of the Pakistan Penal Code for which the maximum sentence was three months' rigorous imprisonment. This argument of the learned counsel for the petitioner is based on a misapprehension. It is clear that the petitioner was not sentenced by the Summary Military Court for encroachment or trespass, but for disobedience of Martial Law Order No. 10 made by Lt. Col. Muhammad Umar Khan. Disobedience of a Martial Law Order duly made is punishable by reason of Martial Law Regulation No. 16 with imprisonment which may extend to fourteen years, and it is clear that the sentence imposed by the impugned order did not exceed the maximum punishment prescribed for the offence of which the petitioner has been convicted. I might, however, make it. clear that what I have said in this paragraph is not to be taken to be a finding that Martial Law Order No. 10 issued by Lt. Col. Muhammad Umar Khan was validly made because with this aspect of the matter I will deal at the proper place.

6. A point taken in the petition and agitated at the time of arguments was that Lt. Col. Muhammad Umar Khan was incompetent to pass the Martial Law Order No. 10, the breach of which had led to the conviction of the detenu and the award of the sentence which he was undergoing. It was contended that Lt. Col. Muhammad Umar Khan had not been authorised by the Chief Martial Law Administrator to pass a Martial Law Order and, therefore, was incompetent to issue Martial Law Order No. 10 which he had done on the 14th of October 1958. In this connection reliance was placed by the learned counsel for the petitioner on Regulation No. 1 of the Martial Law Regulations issued on the 7th of October 1958, the relevant part of which is its clause (c) which reads as under :‑ "Orders under these Regulations and additional Regulations hereinafter known as Martial Law Orders and Martial Law Regulations may be issued by me or by any Administrator or by any other officer authorised by me." To the above contention the reply on behalf of the respondent was that the Chief Martial Law Administrator passed Martial Law Orders on the 11th of October 1958, No. 8 of which orders reads as follows :‑ "Sub‑Administrators are authorised to convene special Military Courts and Summary Courts. They are also authorised to issue necessary orders and delegate powers of issuing orders to any officer in their own areas as they deem fit. Power to issue Regulations will vest in the Chief Administrator and the Administrators only and not in Sub‑Administrators unless authorised to do so by the Chief Administrator Martial Law." The learned Advocate‑General made a statement at the bar which there is not the' least reason to doubt that Commanders and officiating Commanders of certain Brigades had been authorised on the 12th October 1958 by Major General Sarfraz Khan, who was Sub‑Administrator of Martial Law for the relevant Zone, to issue Martial Law Orders and that Lt. Col. Muhammad Umar Khan was an officiating Commander of one of those Brigades at the relevant time and it was urged that because of this authori zation he was competent to issue the Martial Law Order in question. To this contention the objection raised by Mr. M. Anwar, learned counsel for the petitioner, was that the provision relied upon by the learned Advocate‑General was not a Regulation and, therefore, could not amend Martial Law Regulation 1 (c) issued on the 7th of October 1958 and that, at any rate, Martial Law Order No. 8 issued on the 11th of October 1958 authorised Sub‑Administrators to convene Special Military Courts or issue Martial Law Orders with regard to convening Courts and only those powers could be delegated by Sub‑Administrators to officers serving under them. It is clear that Martial Law Order No. 8 dated the 11th of October 1958 does to some extent amend Martial Law Regulation No. 1 and it is obvious that if it had been issued by any authority other than the Chief Martial Law Administrator, it would have been a nullity, but as it was issued by the Chief Administrator of Martial Law, the defect, if any, is immaterial. The Chief Administrator of Martial Law is com petent to pass Martial Law Regulations as well as Martial Law Orders and though an Order passed by an authority other than the Chief Martial Law Administrator would have been invalid on the ground that it did not conform to the provision which authorised the issuing of Martial Law Orders, that result cannot ensue where the Martial Law Order is passed by the Chief Martial Law Administrator. The reason for this view is that the Chief Martial Law Administrator is competent to issue Martial Law Regulations and to amend them. It may be that the amendment of a Martial Law Regulation should ordinarily be by another Regulation, but where the authority which issues the Martial Law Order is the same that can issue a Martial Law Regulation amending his previous Regulation, the mere fact that the amend ment in a Regulation is brought about by what is termed as a Martial Law Order and not a Martial Law Regulation cannot invalidate the amendment. In such cases it can be presumed, without doing violence to any canon of interpretation, that the Martial Law Regulation was intended to be amended and, there fore, should be held to have been amended. I hold, therefore, that the mere fact that Martial Law Regulation No. 1 (c) was amended by a provision issued by the Chief Martial Law Administrator which was called Martial Law Order and not a F Martial Law Regulation would not, in any manner, stand in the way of the amendment brought about by the order being acted upon.

7. I proceed now to consider whether Martial Law Order No. 8 applies only to matters connected with convening of Special Military Courts and Summary Courts which have been specifically mentioned in the first sentence of that Martial Law Order. If the Martial Law Order No. 8 issued on the 11th of October 1958 is read as a whole, it becomes manifest that it was not Intended to apply only to matters regarding convening of Special Military Courts and Summary Courts but to issuing Martial Law Orders as well. The second sentence of the order is so worded as to give the Sub‑Administrators of Martial Law power to delegate their own powers to officers serving under them. In this view I am confirmed by the third sentence of the Order which deals with the power to issue Regulations. If Martial Law Order No. 8 were not intended to authorise Sub‑Administrators to issue Martial Law Orders and to delegate this power to officers subordinate to them, it was not necessary for the Chief Martial Law Administrator to mention in the order that the power to issue Regulations would vest only in himself and Administrators of Martial Law as originally laid down by clause (c) of Martial Law Regulation No. 1 which has been reproduced in an earlier part of this judgment. I would hold, therefore, that the delega tion by Major General Sarfraz Khan to Lt. Col. Muhammad Umar Khan to issue Martial Law Orders was valid under Martial Law Order No. 8 issued by the Chief Martial Law Administrator on the 11th of October 1958 and the Martial Law Orders issued by Lt. Col. Muhammad Umar Khan would be valid unless some other provision deprived them of their validity.

8. Mr. Anwar next contended that even if Lt. Col. Muhammad Umar Khan had been validly authorised to make Martial Law Orders, Martial Law Order No. 10 made by him on the 14th of October 1958 could not be acted upon for the reason that it was not a Martial Law Order contemplated by the Martial Law Regulations issued by the Chief Martial Law Administrator on the 7th of October 1958. He urged that a Martial Law Order must be an Order issued under a Martial Law Regulation, in other words a Martial Law Order must be an amplification of a Regulation and if it was not so, the Order could not be con sidered to be valid. According to Mr. Anwar, Martial Law Regulations had the status which a piece of legislation has under the ordinary law while Martial Law Orders had the status of rules issued under legislative measures, and just as rules could not go beyond the legislative measure itself, Martial Law Orders could not either run contrary to or go beyond Martial Law Regulations. He went on to say that the matter dealt with by Martial Law Order No. 10 issued by Lt. Col. Muhammad Umar Khan was about a subject which is dealt with in the Punjab Municipal Act as an encroachment, and as encroachments on public lands, roads and streets within the areas of Municipal Committees and Municipal Corporations were not dealt with by any Martial Law Regulation, the. Martial Law Order which dealt with encroachments could not be considered to be valid. In this connection the learned counsel also relied on paragraph 4 of the Laws (Continuance in Force) Order, 1958, which is to the effect that all laws in force in Pakistan at the time when Martial Law was imposed on the 8th of October 1958, except some mentioned in the paragraph, were to remain in force until amended or varied by authorities mentioned in that paragraph. He said that the Punjab Municipal Act was one of the laws that was continued in force by para graph 4 of the Laws (Continuance of Force) Order, 1958, and as no amendment had been made in that law either by the President, the Chief Martial Law Administrator or by' the Governor of the Province of West Pakistan, that provision of the Punjab Municipal Act which dealt with encroachments and made their non‑removal punishable remained intact and Martial Law Order No. 10 passed by Lt. Col. Muhammad Umar Khan was invalid.

9. It appears to‑me that the contentions of the learned coun sel for the petitioner with regard to the field that a Martial Law Order can cover are not without substance. If the intention of the Chief Martial Law Administrator, from whom undeniably all H those competent to make Martial Law Orders derive their authority, were to give officers subordinate to him power to make any Martial Law Order they liked, he would not have indicated in clause (c) of Martial Law Regulation No. 1 issued on the 7th of October 1958 that Martial Law Orders were to be under the Martial Law Regulations. As worded, clause (c) would appear to mean that an officer other than the Chief Martial Law Adiminis trator authorised to issue Regulations could make any Martial Law Regulation, but it is obvious that officers authorised by the Chief Martial Law Administrator to exercise powers to issue Martial Law Regulations could not issue Regulations with regard to matters covered by a Regulation issued by the Chief Martial Law Administrator, nor, in view of paragraph 4 of Laws (Con tinuance in Force) Order, 1958, could a Regulation issued by an authority other than the Chief Martial Law Administrator amend a law which under that paragraph is to continue in force until altered, repealed or amended by a competent authority. If an officer, who makes a provision which is to have the force of law, is not com petent to issue a Martial Law Regulation but to make only a Martial Law Order, there should be in existence a Martial Law Regulation which he wants to amplify by his Martial Law Order because otherwise there would be no difference in the powers of an officer authorised to issue Martial Law Orders only and those of one authorised to issue Martial Law Regulations. But whether or not Martial Law Order No. 10 made by Lt. Col. Muhammad Umar Khan on the 14th of October 1958 was passed under any of the Regulations issued by the Chief Martial Law Administrator or under a valid Regulation issued by a Martial Law Adminis trator of the relevant area that existed at that time is a question which would appear to be one of fact and it is obvious that a decision on a question of that type is not a decision on the question of jurisdiction. And even if it be held that the decision of the Summary Military Court with regard to Martial Law Order No. 10 issued by Lt. Col. Muhammad Umar Khan was on a question of law and it be assumed that the decision was wrong, then too the jurisdiction of this Court, the limits of which I have indicated above, is not attracted. A decision which is wrong in law is not one without jurisdiction because as has been aptly said by many a high judicial authority, Courts have jurisdiction to decide rightly as well as wrongly and it is for that reason that a decision wrong in law is not, and has never been held to be, a decision without jurisdiction. If the detenu can convince the Martial Law authorities that the Order issued by Lt. Col. Muhammad Umar Khan suffered from the infirmities mentioned by Mr. M. Anwar, relief will be granted to the detenu because an application for revision put in by the petitioner under Martial Law Regulation No. 61 recently issued by the Chief Martial Law Administrator is pending before the Martial Law Administrator for West Pakistan. It can hardly be doubted that the Administrator will examine all aspects of the case and grant' relief to the petitioner if relief be due and if the Martial Law authorities come to the conclusion that the Chief Martial Law Administrator did not intend to give officers declared competent to issue Martial Law Orders power to issue Orders irrespective of whether or riot a Martial Law Regula tion existed on the subject which was intended to be dealt with by the Martial Law Order, they could, by making changes in the relevant Martial Law Regulations, validate all acts which may appear to be defective, in view of the language employed in the Regulations already issued.

10. Another point taken by the learned counsel for the petitioner was that an appropriate writ could issue with regard to the impugned decision of the Summary Military Court because the Municipal Committee, Gujrat, had obtained that decision by fraud. The argument of the learned counsel for the petitioner with regard to the Municipal Committee Gujrat, having committed a fraud on the Summary Military Court was founded on the fact that the Municipal Committee had passed resolutions that the piece of land, which was alleged to have been encroached upon be sold to the detenu. One of these resolutions was passed on the 25th of June 1956 but was not accepted by the Commissioner of the Rawalpindi Division. After the Commissioner turned down the first resolution, the Committee passed another on the 18th of June 1957 but that too was turned down on the 1st of August 1958 by the Commissioner of Rawalpindi Division against whose order the detenu had presented an appeal to the Provincial Government w11ich was said to be pending at the time when the detenu was tried and convicted. If these facts were a defence to the charge against the detenu or mitigated his offence, it was his duty to bring them to the notice of the Summary Military Court, and I am of the view that whatever the position may be under the ordinary law, these facts cannot give this Court jurisdiction to issue a writ with regard to the order passed by the Summary Military Court in the present case. It was also pointed out by the learned counsel for the petitioner that a report made by the Municipal authorities supported by that of the Deputy Commissioner, Gujrat, after the conviction of the detenu by the Summary Military Court, a copy of which report has been attached to the petition as an annexure, would show that the petitioner had made no encroach ment on a road or a public street. Assuming that the reports mentioned above are correct, I fail to see how the evidence relied upon by the learned counsel for the petitioner can give this Court jurisdiction to issue a writ with regard to an order which has not been shown to be without jurisdiction.

11. In view of what I have said above, I would hold that the present is not one of the class of cases in which a writ can be issued by this Court with regard to orders passed by a Military Court. I would, therefore, dismiss the petition, but in view of the special circumstances of the case would leave the parties to bear their own costs. MASUD AHMAD, J.

‑I agree. A. H. Petition dismissed.