1952 P Cr (PLP)

4. Prosecution produced Maqbool Ahmad, P. W. 1, Muhammad Ijaz Mirza Magistrate 1st Class, P. W. 2, Rauf Ahmad, P. W. 3, Rashid Ahmad Constable, P. W. 4, Mushtaq Ahmad S. H. O., P. W. 5, in support of its case.

5. The accused/petitioner denied the allegations against him. He stated that the alleged mutation was registered on 21st June, 1977 while he was posted in this Circle on 8th September, 1977. As regards the receipt of the alleged bribe money, he stated that this was the price of rice which he had sold to the complainant and the complainant paid this price to him. He further added that 2 kanals of land belonged to Wali Muhammad was fraudulently transferred by Maqbool Ahmad com plainant in his name some time ago and that he had submitted a favour able report in favour of Wali Muhammad against the complainant and it was for this reason that he had been involved in this case falsely by the complainant. He produced four defence witnesses. Maqbool Ahmad, P. W. 1, confirmed the assertion of the petitioner regarding the 2 kanals of land which had been illegally transferred by the complainant. Mubarak Ali, Rao Muhammad Yousaf and Muhammad Rashid, D. Ws. confirmed the version of the petitioner that he had sold 7 maunds of munji and that it was the price of this rice which was being paid by the complainant to him and that it was not bribe taken by the petitioner.

6. Maqbool Ahmad, P.W. 1. is a decoy witness. He stated that the petitioner approached him and told him that out of the 22 kanals of land which had been purchased by him 11 kanals would be confiscated because it had been fraudulently sold to him. He further stated that the petitioner told him that if he paid him Rs. 500 he would set things right. Maqbool Ahmad, P. W. 1, told the story to his father who in turn informed him that there was nothing wrong with the transaction of sale and that he should not worry. 10 days later the petitioner again approached him and said that if he had no ready money he should promise to pay him and that he would set things right. He paid the petitioner RS. 100 next day. He further told the petitioner not to bother him any more as his documents were genuine. The petitioner threatened to report about the fraud if he did not pay him the said amount. This witness agreed to pay him the remaining Rs. 400 on 28th of December, 1978. Thereafter he went to the Anti-Corruption Department and reported the matter. He was produced before A. D. C. (G). A Magistrate was deputed to conduct the raid. Rs. 400 were collected as tainted money. Serial Numbers of currency notes were noted down and it was arranged that the complainant would pass on this money to the petitioner. This witness met the petitioner near Gakkhar Mandi and passed on the tainted money to him while the Sub-Inspector Mushtaq Ahmad, P. W. 5, and Mohammad Ijaz Mirza, Magistrate, 1st Class, P. W. 2, were standing nearby. The accused was apprehended at the spot. The tainted money was recovered by Sub-Inspector Mushtaq Ahmad vide recovery memo Exh. P. C. During cross-examination the complainant admitted that the mutation of the land in dispute was completed on 21st June, 1977 when the petitioner had not yet taken over as Tatwari in this Halqa. Muhammad Ijaz Mirza, P. W. 2, is the raiding Magistrate. He had accompanied Maqbool Ahmad, the complainant, and the police party. He stated that the petitioner was standing on one side of G. T. Road when the complainant handed over tainted money to him and asked him to do his job. The petitioner replied that it would be done. The Magistrate also added that he heard the complainant telling the petitioner that the job should be done and that the reply of the petitioner was that this would be done. Rauf Ahmad son of the complainant, P. W. 3, stated that on 21st December, 1978 the petitioner had demanded money from his father in his presence. Rashid Ahmad Constable, P. W. 4, was accompanying the raiding party. He stated that near Adda Allah Log the complainant took out Rs. 400 from his pocket and gave it to the petitioner. Immediately thereafter the Magistrate, P. W. 2, approached the petitioner and recovered the tainted money from him. He stated that the Magistrate was at a distance of about 5/6 steps when the money was passed on to the petitioner. Mushtaq Ahmad Sub-Inspector Anti-Corruption, P. W. 5, stated that the tainted money was passed on to the petitioner in his presence. He further added that the money was produced by the petitioner and that he prepared the recovery memo referred to above. He arrested the accused and prepared the challan.

5. Record of the case has been produced by learned Assistant Advocate-General. It has been perused with the help of the learned counsel for the parties and arguments heard.

8. Learned counsel for the petitioner has argued that the case has no special features justifying its transfer to the Military Court and that it did not come within the doctrine of necessity as expounded by the Supreme Court of Pakistan and that the trial and subsequent conviction of the petitioner was bad on that account. It was further submitted that the offence in this case was not committed by way of resistance of Martial Law itself. He further argued that the petitioner being a Government servant was to be tried by the Special Judge, Anti-Corruption, appointed under the Pakistan Criminal Law (Amendment) Act, 1958, and that under the said Act, a public servant could only be tried after requisite sanction for his prosecution had been obtained from the relevant authorities. This sanction is not forthcoming in the present case. The impugned conviction and trial are, therefore, a nullity on that account as well.

9. Pakistan Criminal Law (Amendment) Act, 1958 provides the appointment of Special Judges who have exclusive jurisdiction to try public servants in respect of the offences specified in the Schedule to the Act, including an offence of demanding and accepting illegal gratification, as in the present case. No doubt M. L. O. 4 as reconstituted by M. L. O. 37 empowers Special Military Courts and the Summary Military Courts to try any person not only for the contravention of Martial Law Regula tions and Orders but even for offences under any other law. But it is difficult to assume that the said provision also empowers the Military Courts to try offences which are exclusively triable by the Special Judges, Tribunal and Specials Courts, etc. The intention of the law-giver is further made clear by the further promulgation of C. 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. Obviously there was no necessity of promulgating C. M. L. O. 54 if C. M. L. O. 4 has conferred powers on Military Courts to try all offences including offences exclusively triable by Special Judges, Special Courts and Tribunals. C. M. L. O. 54 makes it abundantly clear that only in special cases Military Courts have been given power to try offences otherwise exclusively triable by Special Courts and Tribunals, etc. In the present case there is no order of Chief Martial Law Administrator in terms of C. M. L. O. 54 directing that this case be tried by Military Court. Moreover the requisite sanction for the prosecution of the petitioner under the provisions of Pakistan Criminal Law (Amendment) Act, 1958 is also not forthcoming on the record. The requirement of sanction is not only for the benefit of a public servant it is in fact in the interest of the State 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 State that a public servant should be tried in a Court of law or be dealt with departmentally. The view I have taken is in consonance with the view taken by the Quetta High Court in the case of Muhammad Niaz v. Martial Law Administrator (P L J 1979 Quetta 2) and the Karachi High Court in Manzoor Ahmad v. President Summary Military Court (P L D 1979 Kar. 623). The former cast went to the Supreme Court of Pakistan when the same was disposed of as having become infructuous. The proposition laid down by the High Court was not adjudicated upon. The Supreme Court of Pakistan, however, observed that the proposition and observation made by the High Court of Baluchistan in the judgment under appeal, appear to be much too wide and, prima facie, open to exception and would require careful examination in a proper case. I respectfully agree with the aforesaid observation of the Supreme Court of Pakistan and feel that the observation of the High Court of Baluchistan that the trial of citizens for offences other than the offences created by Martial Law Regulations and Martial Law Orders cannot take place before Military Courts unless such offence are committed while resisting the Martial Law itself is rather too wide. I agree, however, with the proposition laid down in the judgments of the Baluchistan High Court and the Karachi High Court in so far as they relate to the trial by a Military Court of cases which are exclusively triable by Special Judges, Special Court or Tribunals, etc.

10. In view of the above discussion I hold that the trial and the subsequent conviction of the petitioner (a public servant) by Summary Military Court is illegal and without jurisdiction. This writ petition is accepted. He is set at liberty forthwith unless he is wanted in some other case.

11. This would, however, not legally preclude the State from proceeding against the petitioner before a Special Judge, if sot advised. Writ petition accepted.