P L D 1969 Supreme Court 174 (PLP)

"(3) An order shall not be made under clause (2) of this Article‑ (a) on application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and con ditions of service, in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan." It will thus be seen that the bar provided by clause (3) (a) is not a general bar against the entertainment of any application moved by or in relation to a member of a Defence Service of Pakistan but the bar operates only in respect of an application made by or in relation to such a person if the application is in A respect of the matters specified therein, namely; (a) the terms and conditions of his service, or (b) any matter arising out of his service, or (c) any action taken in relation to him as a member of the service. In the present case the application was certainly not in respect of the terms and conditions of the appellants service or in respect of any matter arising out of his service but was it in respect of an action taken in relation to him as a member of the Defence Services of Pakistan? Does this mean any and every kind of action taken in rela tion to a person who is a member of a defence service? It obvi ously cannot, for, a member of a defence service is also a citizen of the State with rights and obligations as such a citizen. A distinction has of necessity to be drawn between his dual capa cities and, therefore, the action referred to in clause 3 (a) of Article 98 must be confined strictly to action which is only relatable to a person in the capacity or a member of a defence service and not to any other capacity. The Pakistan Army Act itself makes a differentiation between certain categories of offences punishable under Act. Thus offences of murder, culpable homicide and rape committed by a member of a defence service in relation to a person who is not a member of a defence service cannot be dealt with under the Army Act except when committed while on active service at any place outside Pakistan or at a frontier post. Again even though section 59 of this Act makes all other "civil offences" also offences under the Act yet under section 94 where the offence is also triable by a criminal Court then it is the prescribed officer who has in his discretion to decide as to which Court shall try him. If such an officer decides that the case shall be tried by the criminal Court and not a Court under the Army Act then should trot the ordinary incidents of such a litigation attach to such a proceeding even though the accused is a member of a defence service. The choice lies with the defence service authorities and if they choose to treat him as an ordinary citizen then they cannot subsequently claim that action was taken against him as a member of a defence service only. This is exactly what happened in the present case. After arresting him under tare Army Act it was decided to have him tried by a Special Military Court set up under Martial Law Regulation No. 1‑A as an ordinary citizen. This is confirmed also by the fact that the appellant had at the very first sitting of the Special Military Court raised an objection in writing to its jurisdiction and claimed to be tried by a Court Martial, as the offence was one which fell within the category of a civil offence under the Pakistan Army Act. A "civil offence" is defined in subsection (2) of section 8 of the Pakistan Army Act as "an offence which, if committed in Pakistan, would be triable by a criminal Court", and a criminal Court under subsection (7) of the same section means "a Court of ordinary criminal justice in Pakistan, or established else where by the authority of the Central Government." A "Special Military Court," under clause (a) of Martial Law Regulation No. 1‑A, was a Special Court of criminal jurisdiction and it had concurrently with the criminal Courts as by law established in Pakistan the jurisdiction to try and punish an% one: both for contraventions of Martial Law Regulations as well as for offences under the criminal Law. It was only on the 4th February 1959, that under Martial Law Regulation No. 61 exclusive jurisdiction was given with effect from the 1st day of March 1959, to a Military Court, special or summary, to try offences under the Martial Law Regulations. The appellant's objection was rejected by the Special Military Court presumably on the ground that after the 1st March 1959, under Martial Law Regulation No. 61, it had exclusive jurisdic tion to try offences for contraventions of the Martial Law Regu lations with which the appellant had been charged by the Army Authorities themselves who had thus made the selection in the exercise of their discretion tinder section 94 of the Army Act. The Army authorities could have equally well charged him under section 24(d) of the Army Act and had him tried by a Court Martial. The jurisdiction to try offences punishable under the Army Act by a Court Martial was not taken away by the Martial Law Regulations. They elected not to do so but to treat him as an ordinary citizen and to have him tried by the Special Criminal Courts having jurisdiction at the time to try contraventions of Martial Law Regulations. The bar of Article 98 (3) (a) could not, therefore, apply in such a case where the action taken against a member of a defence Service of Pakistan was not taken in relation to him exclusively as a member of a defence service. We are unable, therefore, to agree that clause (3) (a) constituted a bar to the jurisdiction of the High Court in the facts of the present case. In this connection our attention has also been drawn to clause (5) of Article 98 whereby the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the offence Services of Pakistan has been excluded from the category of a person who can be directed, under clause (2) of Article 98, to perform certain things which he is bound by law to do or to refrain from doing that which he is not permitted by law to do. The Special Military Court, did not come within either of the, categories so excluded because the Special Military Court was not a Tribunal established under a law relating to the Defence Services of Pakistan exclusively. In our view, therefore, neither Article 98 (3) (a) nor Article 98 (5) stood in the way of the High Court entertaining the petition of the appellant. In any event, in the present case, neither the jurisdiction of the Special Military Court is under challenge nor is any direction or order being sought against it. Having dealt with these preliminary points we come now to the merits of the case. As already pointed out under Martial Law Regulation No. 1‑A the Special Military Court was to be constituted in the same manner, to exercise the same powers and to follow the same procedure as a Field General Court Martia convened under the Pakistan Army Act, 1952, and the provisions of that Act, and even the Rules framed thereunder, were to govern C all such proceedings before a Special Military Court. Under proviso (iii) of paragraph (b) of Martial Law Regulation No. 1‑A all sentences of death had to be reserved for confirma tion by an appointed Administrator of Martial Law, irrespective of his rank. Similarly, under paragraph 5(1) of reconstituted Martial Law Regulation No. 61 every sentence imposed by a Special Military Court trying a case in pursuance of paragraph 1 thereof was to be subject to confirmation as prescribed under the Pakistan Army Act, 1952, in respect elf sentences imposed by a Field General Court Martial. Section 119 of the Pakistan Army Act provides as follows :‑‑ "No finding or sentence of a general, district or field general Court Martial shall tie valid except in so far as it away be confirmed as provided by this Act. Section 120 states thus:‑ "The finding and sentences of a general Court Martial may be confirmed by the Commander‑in‑Chief or by an officer empowered in this behalf by warrant of the Commander‑in -Chief." Rule 56 of the Rules framed under section 164 of the Pakistan Army Act prescribes:‑ "Upon the Court awarding the sentence, the President shall date and sign the sentence and such signature shall authenticate the whole of the proceedings and the proceedings upon being signed by the Judge‑Advocate, if any, shall be at once transmitted for confirmation." Then Rule 58 provides "The charge, finding, and sentence, and any recommendation to mercy shall, together with the confirmation or non‑confirm ation of the proceedings be promulgated in such manner as the confirming authority may direct, and if no direction is given, according to the custom of the service. Until promulga tion has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated." (The underlining* is ours). Reading the provisions of section 119 and Rule 58 together the inference appears to be clear that the confirmation is not complete until promulgation has been effected, and without confirmation there can be no valid sentence. There does not appear to be anything unreasonable in this; because, even in an ordinary criminal Court a sentence to become effective has to be announced in open Court and since under the Army Act no such sentence is announced the promulgation of the sentence is the first announcement. Therefore, as has been contended on behalf of the appellant, it is possible, for even the minutes of confirmation to be changed before the promulgation of the sentence. It is only when the sentence has been promul gated that the act becomes complete and nothing else remains to be done. If, therefore, the procedure of a Special Military Court is to be governed by the provisions of the Army Act and the Rules made thereunder as provided in paragraph (b) of Martial Law Regulation No. 1‑A, then it is clear that promulgation is an essential step for the perfection of a sentence passed by a Field General Court Martial. Learned counsel appearing for the respondent Government, however, contended that since in paragraph 5 of Regulation No. 61 all that has been said is that confirmation will be as prescribed under the Army Act, the Rules framed under the Army Act need not be referred to. If the Rules are left out, then the requirement of promulgation is not to be found in the substantive provisions of the Act itself. This argument, however, overlooks the fact that by subsection (3) of section 176 of the Army Act it has been provided that "all rules made under this apt shall he published in the official Gazette, and on such Here in italics) publication, shall have effect as if enacted in this Act". The Rules, were, in fact, so promulgated and published in the Gazette in 1952 and, therefore, they now form as much a part of the Army Act as the substantive provisions thereof. There fore, even if paragraph 5 of Martial Law Regulation No. 61 says that confirmation will be in accordance with the provisions of the Pakistan Army Act, it means the Act and the Rules read together. The next question that arises for consideration than is as to what is the effect of the mere non‑promulgation of the minutes of confirmation of the sentence. There is no doubt that the minutes of confirmation were signed before the Constitution came into force by an authority who was competent to do so, but its validity is now being challenged merely by reason of the fact that promulgation, which constituted an essential element of confirmation itself, according to Rule 58 of the Rules framed under the Pakistan Army Act, was made after the relevant authority, namely the Chief Martial Law Administrator, had ceased to exist. The contention of the learned counsel appearing for the appellant is that the result of this is that there is neither any conviction nor acquittal and, therefore, the trial is still incomplete, and now that the Special Military Court has ceased to exist the appellant must be tried either by a Court Martial under the Pakistan Army Act or by an ordinary criminal Court. But it appears to us that in making this argument the‑learned counsel has ignored the provisions of the President's Order No. 26 o 1962 and Ordinance No. LXXII of 1962. These Orders were made before the Constitution came into force to provide for cases which were still pending disposal before the Martial Law Authorities as also for cases where sentences of death or transpor tation passed by the Special Military Courts were pending for confirmation immediately before the Commencing Day. These would clearly seem to contemplate that the Authorities themselves were conscious of the fact that there may be cases in which such sentences were pending confirmation and, therefore, it was expressly provided by Ordinance No. LXXII of 1962 that where a sentence of death or transportation passed by a Special Military Court is pending for confirmation immediately before the Commencing Day, the proceedings relating thereto shall be submitted to the Commander‑in‑Chief, who may either confirm the sentence or make such order in respect thereof as he thinks fit. Even if the argument of the learned counsel is accepted that confirmation is not complete without promulgation, then all that is pending in the present case is the confirmation of the sentence, for, so far as the Special Military Court itself is con cerned it has done all that it was required under the Pakistan Army Act to do. It has recorded its findings, passed the sentence, certified it under its President's signature and forwarded the same for confirmation while it was still competent to do so, before the Constitution of 1962 came into force. All that was left to be done on that date, even on the basis of the argument advanced on behalf of the appellant, was that thee confirmation of the sentence was pending. Is this still pending, as contended on behalf of the appellant, or has this too now been disposed of in accordance with the provisions of Ordinance No. LXXII of 1962? Before we answer this question we would like to point out that even under the Pakistan Army Act it is the Court Martial which records the finding, conviction and sentence. Rule 51 deals with the procedure of recording of findings. It provides that the finding on every charge on which the accused is arraigned shall be recorded as a finding of guilty or not guilty. Rule 53 prescribes the procedure on conviction. If a finding on any charge is guilty, then the Court (the Court Martial) before deliberating on the sentence shall, whenever possible, take evidence of, and record the general character, age, service, rank and any recognised acts of gallantry or distinguished conduct of the accused, any previous conviction and any previous punishment awarded to him, the length of time he has been in arrest or in confinement on any previous sentence, and any military decoration, etc. Then Rule 54 provides that the Court shall award one sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. If there is a recommendation for mercy the Court shall also record such a recommendation along with its reasons. Finally under Rule 56 upon the Court awarding the sentence the President shall authenticate the whole of the proceedings and the pro ceedings upon being signed by the Judge‑Advocate, if any, shall be at once transmitted for confirmation. It will thus be observed that even under the Army Act the sentence is awarded by the Court Martial, even though it is subject to confirmation by the convening authority. This is thus like a sentence of death imposed by a Court of Session on an accused person. The sentence is complete but it is not execu table unless it is confirmed by the High Court under section 376 of the Code of Criminal Procedure even though the High Court may under this section annul the conviction or pass a new sentence or order. Under the Army Act too the sentence is complete after it has been awarded by the Court Martial and authenticated as required by Rule 16 by the President of the Court. The confirmation of that sentence was necessary only to make it validly executable. When Martial Law Regulation No. 1‑A says that Special Courts set up thereunder may "pass any sentence" authorised by law or by these Regulations it means no more than this that the Military Courts too can award sentence which are within their competence. In this view of the matter, there can be no question of the trial still remaining pending even if the contention that promulgation is a necessary pre‑condition of the validity of a sentence be accepted. We are unable, in the circumstances, to accept the contention that the failure to promulgate the sentence before the commencement of the Institution of 1962 and the consequent repeal or the Martial Law Regulation invalidated the entire proceeding. President's Order No. 26 of 1962 and Ordinance No. LXXII of 1962, were designed to meet the eventualities of precisely such cases. Paragraphs 3 and 4 of President's Order No. 26 of 1962 deal respectively with cases where (a) no finding had been recorded or sentence awarded before the Commencing Day and (b) the finding has been recorded and sentence awarded but the sentence is pending confirmation. In the latter event the confirmation has to be dealt with along with any petition for review pending on such day by the Commander‑m‑Chief of Pakistan Army if the sentence awarded was one of rigorous imprisonment for a term of not less than seven years, and in all other cases of lesser sentence by the respective Corps Commanders. It has been contended by the learned counsel for the appellant that paragraph 4 of Present Order No. 26 deals only with cases where the sentence imposed is one of "rigorous imprison ment" and not "death," as in the present case, or "transportation for life." This appears to be correct. But section 3 (1) of Ordinance No. LXXII of 1962 deals specifically with the case of confirmation of a sentence of death or transportation for life. This subsection provides as follows:‑ Where a case in which the sentence of death or transporta tion for life has been passed by a Special Military Court was pending for confirmation immediately before the Commencing Day, the proceedings relating thereto shall be submitted to the Commander‑in‑Chief, who may either confirm the sentence or make such order in respect thereof as he thinks fit. It will thus appear that even if President's Order No. 26 of 1962 is not attracted, Ordinance No. LXXII of 1962 is applicable to the appellant's case, for, here all that was pending on the Commencing Day was the question of confirmation of the sentence of death awarded to the appellant by the Special Military Court. Ordinance No. LXXII of 1962 was made at a time when the National Assembly was not in session and, therefore, was within the legislative competence of the President under Article 29 of the Constitution. There cannot thus be any dispute as to its vires or legality. Coming now to the question as to whether the case has still to be placed before the Commander‑in‑Chief in accordance with the provisions of the last mentioned Ordinance, we find that this case has already been before the Commander‑in‑Chief on more than one occasion. The first occasion was when he after review ing the case under the Pakistan Army Act, committed the sentence of death to transportation for life on the 17th of August 1962 and then again when he further reduced the sentence on the 18th of February 1967, to 12 years' rigorous imprisonment. Even after this the appellant has been making repeated mercy petitions, the last of which was actually sent to the Commander‑in‑Chief on the 16th of July 1968, and was rejected by him on the 14th of October 1968. Under section 131 of the Army Act it appears that any person aggrieved by a finding or sentence of a Court Martial may, even after confirmation of the sentence, submit a petition either to the Central Government or the Commander‑in‑Chief or any prescribed officer higher in rank than the one who confirmed the finding or sentence, and the Central Government or the Commander‑in‑Chief or such prescribed officer may, on such a petition under section 132, even annual the proceedings of the Court Martial on the ground that they are illegal or unjust. It would thus appear that the appellant has already availed of not only the right of review given to him under the provisions of the Pakistan Army Act but also made various mercy petitions as a result of which his sentence has now been reduced from death to only 12 years' rigorous imprisonment, which too he is about to complete in a few more months' time. It would thus appear that the Commander‑in -Chief has done all that he could do while considering the case for the confirmation of the sentence either under the Army Act or under Ordinance No. LXXII of 1962. No further useful purpose can be served by sending the case back again to the Commander -in‑Chief under Ordinance No. LXXII of 1962 for consideration of the question of confirmation of the sentence awarded to the appellant by the Special Military Court. The commutation granted on the 15th August 1962, was referable to his powers either under section 124 of the Pakistan Army Act or section 3 of Ordinance No. LXXII of 1962. The sentence became valid in every respect when the Commutation order was promulgated by service of the warrant upon the appellant and its validity cannot now be challenged by reason of the provisions of Article 250 of the Constitution. It remains now only to consider as to whether the trial was vitiated by reason of any alleged violation of the provisions of Martial Law Order No.

38. The complaint made is that the appellant was not produced before a District Magistrate or his nominee within 24 hours of his arrest under the Martial Law Regulations but continued to be kept in Military custody until the promulgation of his sentence. In the present case the arrest was initially under the Army Act but when it was decided to have the appellant tried under the Martial Law Regulations the Special Military Court should have under section 95 of the Army Act asked for the prisoner to be made over to the District Magistrate but this irregularity in the manner of detention during trial cannot possibly have the effect of vitiating the trial itself, for, it could in no way have prejudiced the appellant in his defence. For these reasons we would dismiss this appeal, but having regard to the special facts of this case we would make no order for costs. K.B.A. Appeal dismissed.