P L D 2002 Supreme Court 830 (PLP)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑Petitioners seek leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 28‑11‑2000, passed in Writ Petition No.380 of 1989.

2. The facts, in brief are that Haji Altaf Hussain, husband of petitioner No. l and father of petitioner No.2 in the year 1974. established a private company in the name and style of Messrs National Farms Aids Limited. A consignment of 164 cows was imported, out of which 100 cows were handed over to Pakistan Army and remaining 64 cows were entrusted to National Farms Aids Limited. It was alleged that the Company did not pay the price of the‑cows, therefore, F.I.R. was registered against Haji Altaf Hussain with F.I.A. on 19‑3‑1977 under section 420, P.P.C. Summary Military Court No.75 tried the case, convicted Haji Altaf Hussain under section 420, P.P.C. and sentenced him to one year R.I. He was also fined Rs.12,00,000 with confiscation of his property. On 8‑12‑1988 Haji Altaf Hussain died. The present petitioners are his successors‑in‑interest, who filed a Constitutional petition, after about five years of conviction of Haji Altaf Hussain, which was dismissed by a learned Division Bench of the High Court vide impugned judgment dated 28‑11‑2000. Hence, this petition.

3. Petitioner No.2, inter alia, contended that the fine imposed on the deceased was in excess of authority and jurisdiction vested in the Summary Military Court; that the evidence produced by the prosecution did not disclose any offence against the deceased; that after the demise of convict the ancestral properties in the hands of heirs could not be attached; that the conviction, sentences of fine and confiscation of property are nullity in the eye of law; and that the judgment of the High Court is without consideration of the relevant facts and law and is liable to be set aside.

4. We have considered the argument advanced by petitioner No.2 who argued the case personally. Haji Altaf Hussain (deceased) was convicted by the Military Court on 12‑4‑1984 and sentenced to one year's R.I. and to pay fine of Rs.12 lacs. The contention of petitioner No.2 is that the appeal tiled by the deceased before the Martial Law Administrator, Zone "A", Punjab, forwarded by the Superintendent, District Jail, Multan, through Letter No.2‑219, dated 10‑7‑1984, was not responded to. Subsequently, after the death of Haji Altaf Hussain, present petitioners, in their own wisdom, tiled Constitutional petition before the High Court on 3‑8‑1989, after about five years of his conviction, with the prayer that a writ of certiorari or any other appropriate writ, order, or direction be issued, quashing the conviction and sentence passed by Summary Military Court against the deceased, being coram non judice, mala fide and without lawful authority. "270‑A. (1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders including the Referendum Order, 1984. (P.O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia‑ul‑Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No.14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No.20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No.24 of 1985), and all other laws made between the fifth day of July. 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent Authority and, notwithstanding anything contained in the Constitution, shall not be called in question‑in any Court on any ground whatsoever ... .... ... .. .. ... ... ... .. ... .. ... ... ... ... ..

7. No doubt, in Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989'SC 26) this Court observed that Article 270‑A does not take away the jurisdiction of the High Court from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or mala fide. Strangely enough Haji Altaf Hussain deceased did not agitate the matter before the High Court during his lifetime, but after his death when the authorities concerned took necessary steps for recovery of the amount out of the estate left by him, his legal heirs approached the Court in 1989 by filing Constitutional petition. The deceased was convicted by the Summary Military Court, established under M.L.O. No.4 on 12‑4‑1984, and after five years of his conviction the writ petition was filed by his legal heirs, which was rightly dismissed by the High Court on the ground of laches. The Courts always help the vigilant, who approaches the Court in time but do not help the person, who is negligent in pursuing his matter.

8. Considering the case from all angles, particularly Article 270‑A of the Constitution and the case‑law cited above, the High Court rightly dismissed the writ petition for sound and cogent reasons.

9. The instant petition is also barred by time, for which no plausible explanation has been given in the application for condonation of delay.

10. Resultantly, the petition is dismissed on merits as well as on ground of limitation alongwith the miscellaneous application, and leave appeal refused. (Sd.) Syed Deedar Hussain Shah, J. 22‑5‑2002 RANA BHAGWANDAS. J.‑‑‑I have also appended my separate note.

11. RANA BHAGWANDAS, J.‑‑I have had the privilege of going through the judgment authored by my learned brother Syed Deedar Hussain Shah, J. I fully agree with the reasons recorded and the conclusion arrived at by my learned brother whom I always hold in high esteem but would like to add a few lines of my own.

12. There is no denial of the fact that Military Courts comprising of Special Military Courts and Summary Military Courts were constituted under the provisions of Martial Law Order No.4, promulgated after the enforcement of Martial law in the country with effect from 4th July, 1977. Their constitution, scope of authority and jurisdiction was defined in various Martial Law Orders and Regulations, which remained on the statute book and were given a complete blanket cover by Constitution (Eight Amendment) Act 1985. Article 270‑A is a pointer on the subject and has been the subject of interpretation in a number of cases and more particularly in comprehensive and elaborate manner in Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) referred in the main judgment in its correct perspective. Only exception to the judgments and convictions recorded by the Military Courts recognised by the superior Courts taken so far appears to be where such Court acted without jurisdiction, beyond its jurisdiction or where the judgment passed was coram non iudice, void ab initio and/or prompted by mala fide. Barring such class of cases actions taken, acts performed, decisions made, judgments rendered, punishment recorded and liabilities incurred were protected under the Constitutional dispensation validated by Majlis‑e‑Shoora, which came into being after the General Elections held in 1985. I am of the considered view that bar of jurisdiction contemplated by Article 270‑A of the Constitution in relation to the actions taken under various Presidential Orders/Ordinances, Martial Law Regulations, Martial Law Orders. etc. is neither absolute nor inflexible and as held in Malik Ghulam Mustafa Khar (supra), High Court shall have the jurisdiction to examine and enquire into the vires of the convictions rendered by Military Courts and to adjudicate whether the exercise of power was within the tour corners of the statute creating such Courts. If a High Court comes to the conclusion that the jurisdiction was exercised without jurisdiction, in excess of authority or the judgment rendered was coram non judice or void ab initio, High Court's jurisdiction in terms of Article 199 of the Constitution shall remain intact. This was the view taken by this Court even in cases coming up for consideration before the Court even prior to the enactment of Article 270‑A. Reference may be made to Muhammad Akram Khan, Islamic Republic of Pakistan (PLD 1969 SC 174) and State v. Zia ur‑Rehman (PLD 1973 SC 49) [88 and

891. In subsequent cases coming up before the Lahore High Court interference with the judgments and convictions recorded by the Military Courts was declined in Muhammad Sarwar v. State (1992 PCr.LJ 929), Muhammad Ishaq v. State (1992 PCr.LJ 1273), Ch. Ghulam Qadir v. President, Summary Military Court (1992 PCr.LJ 1461), Muhammad Aslam v. State (NLR 1992 Cr.LJ 482) and Muhammad Rafique v. State (NLR 1992 Cr.LJ 483).

13. In the instant case, apart from the‑fact that the deceased convict did not assail the vires of the judgment arid conviction before the High Court during his lifetime, fact remains that on the basis of record, the judgment impugned cannot be declared to be without jurisdiction or coram non judice and void ab initio on the face of it. Petitioners who succeeded to the estate of the deceased also awoke from deep sleep only after they were pressed for payment of fine imposed on the deceased, who had already served out one year R.I. without any reservation on merits, therefore, I am in respectful agreement with the view expressed in the main judgment that it does not call for any interference lit the exercise of extraordinary, Constitutional jurisdiction as no exceptional case has been made out.

14. Abovesaid opinion was reiterated in Federation of Pakistan v. Malik Ghulam Mustafa Khar (supra) and has been consistently followed in subsequent cases, which need not be referred again. M.B.A./T‑31/S Petition dismissed.