1969 PLP 108 (SCMR)

(b) Constitution of Pakistan (1962)

Art. 98 (3) (a) and Martial Law Regulation [C. M. L. A's] No. 6 and Martial Law Regulation [C. M. L. A s] No. 20‑Contention that offences under Martial Law Regulation [C. M. L. A's] Nos. 6 & 20 not confined to members of Defence forces only and as such conviction for offences wider Regulations of person not in capacity of member of Defence forces but as ordinary citizen cannot attract provision of Art. 98 (3) (a) so as to oust jurisdiction of High Court‑Special Leave to Appeal granted by Supreme Court to consider question. Mahmud Ali Qasuri, Senior Advocate Supreme Court (M. Arif, Advocate Supreme Court with him) instructed by Siddiq & Company, Attorneys for Petitioner. Nemo for Respondents. Date of hearing : 31st October 1968. MUHAMMAD YAQUB ALI, J.‑The petitioner was convicted under Martial Law Regulations Nos. 6 and 20 by a Special Military Court on 4‑6‑1962 and awarded the sentence of death which was later on commuted by the Commander‑in‑Chief to twelve years' rigorous imprisonment. Sections 119 and 120 of the Army Act which applied to trails by Special Military Courts require promulgation of conviction and sentence awarded by a General Field Court Martial. Under Rule 57 and notes there under there is no conviction and acquittal until sentence and conviction are promulgated. The conviction and sentence awarded to the petitioner were promulgated by the Chief Martial Law Administrator on the 26th June 1962, after the Martial Law Regulations 6 and 20 stood repealed under the Constitution of 1962 and the office of the Chief Martial Law Administrator had become defunct. The petitioner accordingly challenged the promulgation of his conviction and sentence as without lawful authority in the High Court, but the learned Judges declined to issue a rule on the view that there was a complete ouster of jurisdiction under Article 98(3)(a) and that under Martial Law Regulation No. 61(5)(i) the mere fact that conviction and sentence were promulgated on the 26th June 1962, did not by virtue of Article 250 of the Constitution affect their legality. The writ petition was in this view dismissed in limine from which the petitioner seeks leave to appeal. It is contended inter alia that as there was no conviction and sentence operative on the day the Constitution of 1962 came into force and .the office of the Chief Martial Law Administrator stood abrogated the promulgation of the petitioner's conviction and sentence on the 26th June 1962, was without lawful authority. Application of Article 250 of the Constitution is also assailed on the same ground. As to the bar to the jurisdiction of the High Court under Article 98(3)(a) it is urged that the offences under Martial Law Regulations 6 and 20(a) were not confined to the members of the Defence forces and any person who acted in their breach was liable to be convicted and sentenced as provided therein. The conviction of the petitioner by the Special Military Court was accordingly not in his capacity as a member of the Defence forces, but as an ordinary citizen. The questions raised in this petition are of general public importance. We grant leave to appeal and direct that expeditious steps be taken to get the appeal ready for hearing in the third week of December 1968. Security‑Rs.

500. Leave granted.