P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C J.-Criminal Appeals Nos. 1 and 2 of 1960 by Muhammad Ayub Khuhro, both by Special Leave of this Court, the former from the judgment dated the 27th February 1959 of Mirza Kambar Ali Beg, Special Judge for the Federal Capital under the Hoarding and Blackmarket Order, 1956, and the Criminal Law (Amendment) Act, 1958, and the latter from the judgment dated the 29th May 1959 of a Division Bench of the High Court of West Pakistan, Karachi Bench, Karachi, arise out of the appellant's conviction by the Special Judge for a criminal offence and the High Court's refusal to interfere with the conviction. The facts giving rise to these appeals are shortly these; By a Proclamation issued on the night of 7th of October 1958 President Iskander Mirza abrogated the Constitution, dis missed the Cabinet and the Legislative Assemblies and proclaimed Martial Law throughout Pakistan. The relevant Martial Law Regulations Nos. 26 and 5, were issued by the Chief Martial Law Administrator almost simultaneously. On 9th October the appellant who immediately before the Proclamation was the Defence Minister of Pakistan was arrested by the Police on a charge under the Hoarding and Black-market Order, 1956. After investigation he was, on a complaint by the Government, put up for trial before a special Judge for offences under the aforesaid Order and Martial Law Regulation No. 26 read with Martial Law Regulation No. 5 and on being convicted only under the Regulations, the charge under the Blackmarket Order having been separated was sentenced to five years' rigorous imprisonment and a fine of Rs. 1,50,000, in default of payment of which he was ordered to suffer another three years' rigorous imprisonment. The charge of which he was found guilty was that in pursuance of a blackmarket deal with Abdullah Khan, proprietor of Car Mart, Karachi, in respect of a new unregistered Biscayne Chevrolet 1958 Model Car which he had purchased about three months earlier from General Motors Overseas Corporation, Karachi, out of the public quota he received from Abdullah Khan on 2nd October 1958 a sum of Rs. 49,000 permitting him to take the car and display it in his show room with a view to selling it for Rs. 60,000 against the controlled price of Rs. 23,704 and that the car thus remained on show till 9th October 1958 when it was seized by the Police. The second accused in the case was Abdullah Khan himself, but in the course of the trial he was tendered pardon under section 338 of the Code of Criminal Procedure and then gave evidence as a prosecution witness. The third accused Haroon, Manager of the Car Mart, was sentenced under the same Regulations to rigorous imprisonment for three months and a fine of Rs. 1,

000. This accused seems to have been satisfied with the result of the proceedings as he took no step to question his con viction or sentence. Khuhro presented omnibus application to the High Court of West Pakistan, which purported to be a petition of appeal a petition for revision and a. petition for writs of habeas corpus and certiorari. On objection being taken by the State to the jurisdiction of the High Court to interfere with the matter, that Court dismissed the application holding that its jurisdiction to interfere with the proceedings of the Special Judge which were subject to the incident of confirmation under Martial Law Order No. 10 was barred. We gave special leave to appeal both from the judgment of the High Court and the judgment of the special Judge because the case raised some questions of fundamental importance for consideration and decision. In the lengthy hearing which lasted for several days we had the assistance of Mr. Suhrawardy on behalf of the appellant and of the learned Attorney-General, Mr. Nazir Ahmad Khan, for the State. On the very commencement of hearing Mr. Nazir Ahmad Khan raised a preliminary objection to "our own jurisdiction to interfere with the proceedings which after the judgment of the High Court bad been confirmed by the Deputy Martial Law Administrator and required us to dismiss both the appeals as being incompetent. The provision on which this objection is founded is Martial Law Order No. 10, issued by the Chief Martial Law Administrator on 18th October 1958, which provides that "proceedings of cases tried under the Martial Law Orders and Regulations by the Criminal Courts, after confirmation by the Administrators, will be forwarded to Judge Advocate-General, General Headquarters Rawalpindi, for final review." In order to appreciate the objection it is necessary to refer to the several, Regulations and Orders which were issued from time to time by the Chief Martial Law Administrator. The first 29 Regulation were promulgated on 7th October 1458 and published in the Pakistan Gazette of 15th October 1958. The Regulations con cerned the administration of Martial Law, the organization of Martial Law authorities, the creation of Courts and the punish ment of existing or newly created offences. Regulation No. 1-A which created Special Military Courts and Summary Military Courts provided that "Special Military and Summary Military Courts shall have the power to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary law." With regard to the other Courts it declared-that "The Criminal Courts as by law established shall have power to try and punish airy person or offences under the ordinary law and for contravention of Martial Law Regulations or Orders". This provision in so far as it related to the juris diction of the Criminal Courts does not appear in any way to be different from Regulation No. 2 which stated that "Notwithstanding anything contained in these Regulations, the Criminal Courts as by law established shall continue to exercise jurisdiction over persons accused of all offences committed under the ordinary law and also under these Regulations". Thus the effect of these two Regulations was that Martial Law Courts and ordinary Criminal Courts were invested with concurrent jurisdiction to try offences under the ordinary law as well as offences under the Martial Law Regulations and Orders. Nothing was said in any one of the Regulations as to how this concurrent jurisdiction was to be regulated and a possible conflict between the two classes of Courts avoided. Nor was anything said regarding appeals from or revision of the sentence awarded by the ordinary Criminal Courts. It was on 15th October 1958, that Martial Law Order No. 10 on which reliance is placed by the learned Attorney General was passed. It will be noticed that this Order says, nothing about appeal or revision, assumes that the proceedings of Criminal Courts for tire trial of offences under the Martial Lava Regulations and Order will require the Administrator's confir mation and directs that on such confirmation they should be forwarded to Judge Advocate-General for review, the scope of the review riot having been defined though the word 'final" is used. The next important date in the administration of the Martial Law is 24th December 1958 when Regulation No. 61 was promul gated. The purport of this Regulation was that thereafter Martial Law Courts were to try only such cases under the Martial Law Regulations as the Zonal Administrator after consultation with the Chief Commissioner of Karachi specified and all other cases whether under the ordinary law or for breaches of the Martial Law Regulations were to be tried, subject to certain restrictions, by Magistrates of the First Class. Paragraphs 2 and 3 read together barred appeals from the orders of the Magistrates but gave to the convicted person the right to apply for revision to the Court of Session in certain cases arid to tile High Court in all other cases. The sentences of death imposed by Magistrates were to be submitted to the High Court within 7 days for con firmation. Thus after the 24th December 1958 a question could arise whether sentences passed by Magistrates in which a right to apply for revision was given to the convicted person still needed confirmation by the Administrator under Martial Law Order No. 10 or not. The second question, equally important, that could emerge was whether persons convicted by Courts other than those of Magistrates before 24th December had the right of appeal or of applying for revision or whether such right was substituted by the right of making a representation to the Administrator to withhold confirmation. This uncertainty was attempted to be removed on 16th January 1959 by an amendment of Regulation No. 61 by Regulation No. 63 which provided that the amendments shall be deemed always to have been so made in Martial Law Regulation No.

61. By the amendments paragraph 2 of the original Regulation was numbered as sub-paragraph 1 and there after a new sub-paragraph was added which directed that "No appeal or revision shall lie from any sentence imposed in cases tried by Criminal Courts and confirmed by Zonal Martial Law Administrators before the issue of this Regulation." The other important amendment was that paragraph 5 of the original Regulation was re-numbered as sub-paragraph 1 and thereafter a new sub-paragraph was added which stated that "Sentences passed by Magistrates in cases tried in pursuance of paragraph (1) shall not require confirmation by Zonal Martial Law Administrators, nor shall proceedings of cases so tried be forwarded to the Judge Advocate-General for review." This meant that if before 24th December 1958 any sentence had been imposed by a Criminal Court and confirmed by the Zonal Martial Law Administrator no appeal or revision was to lie, the underlying assumption being that sentences awarded by Criminal Courts before 24th December required confirmation by the Zonal Martial Law Administrators under Martial Law Order No.

10. Since the only Criminal Courts that could try offences against Martial Law Regulations or Orders were the Courts of Magistrates and a right to apply for the revision of their sentences was recognised, such sentences hereafter were not to be sent for confirmation to the Zonal Martial Law Administrator, or for review to the Judge Advocate- General. The draftsman of the Regulation seems to have been of the belief that the power to confirm and review by the Martial Law authorities should not co-exit with the appellate or revisional powers of higher Criminal Courts. If a particular case was for confirmation and review by the Martial Law Authorities, no power to interfere in appeal or revision should exist whereas if a higher Criminal Court had the power of inter fering in appeal or revision with the sentence of a lower Court, there was no need for review by the Martial Law Authorities. The point to be noted, however, is that Regulation No. 63 clarified the position only in regard to the cases which were either to be tried by Magistrates after the 240t December 1958 or in which the sentences bad been confirmed by the Administrator before that date. What was to happen if the sentence bad not been confirmed before 24th December or if the Court trying an offence under a Martial Law Regulation or order was not the Court of a Magistrate but some other Court e.g., the Court of Session, which still had seizin of a case on 24th December ? Some such question necessitated a reconsideration of Regulation No. 61 and on 4th February 1959 that Regulation was reconstituted retrospectively from 24th December 1958. The amendment which is relevant for the purposes of the present case was in sub-paragraph (2) of paragraph 2, which read as follows :

"No appeal or revision shall lie from any sentence imposed in any of the cases tried and disposed of by Criminal Courts under Martial Law Regulations or Orders before the 24th day of December 1958, and confirmed subsequently by Zonal Martial Law Administrator concerned. Even this amendment left a lacuna because it contained no provision to meet a situation where a case had not been decided by a Criminal Court before the 24th December 1958. The present case affords an illustration of that situation because it was pending on 24th December and was not decided by the Special Judge till 27th February 1959. Was this omission deliberate or merely inadvertent ? If intentional, was it meant that if a case were decided by a Criminal Court not before but after the 24th day of December 1958, an appeal or revision lay, or was the intention this: that after 24th December 1958 no Criminal Court other than that of a Magistrate, even if seized of a case was to function and therefore there was no necessity of making a provision for the confirmation of its sentences and that after that day the only Criminal Courts that were to exercise jurisdiction were those of Magistrates for whose sentences a revision having been provided for confirmation by the Administrator was considered to be unnecessary ? Having given our full consideration to the matter we take the view that Martial Law Regulations and Orders which appear to have been drafted with much care and skill distinctly reveal the principle that the power to confirm and the power to entertain an appeal or revision is not to co-exist, that one should exclude the other and that the exclusion should be expressly stated. This result was achieved by repeated modi fications of Regulation No. 61 which from its very inception expressly excluded appeals but allowed revision and dispensed with confirmation where revision was provided. It seems to us to be perfectly clear from the history of the Regulations that where appeal was intended to be excluded, it was explicitly stated and that exclusion was not inferred merely from the terms of Martial Law Order No.

10. If such exclusion had been a necessary result of that Martial Law Order before Regulation No. 61 was enacted, the last amendment of that Regulation would have contained a provision that no appeal or revision shall lie where the sentence passed by a Criminal Court had been confirmed by the Administrator and would not have used the limiting words before the 24th day of December 1958." The right of appeal where it exists has to be taken away expressly or by necessary intendment and a mere provision of a confirming or reviewing authority in a different jurisdiction does not have the effect of destroying or taking away that right where it has accrued. And in the present case it is conceded on behalf of the State that the right of appeal was never expressly taken away. The learned Judges of the High Court appear to have accepted this position when before con cluding their judgment they said in paragraph 3 "This means that the High Court retains the power of hearing appeals, where such power existed, subject to an Order of the President or a Regu lation made by the Chief Martial Law Administrator; and since the Martial Law Order is not on the same footing, the provision of Martial Law Order No. 10 that proceedings of Criminal Courts shall after confirmation by Zonal Administrators, go to the Judge Advocate-General for final review, cannot affect the power of the High Court to hear an appeal. Mr. Brohi's interpretation of the President's Order is undoubtedly correct, but Article 3 of the same Order forbids us from questioning a Martial Law Order, and if we are not to question Order No. 10, the effect will be that while on the one hand the Zonal Administrator may confirm a sentence passed by a Criminal Court, the High Court may set it aside on the other." Article 3 to which reference is made in this part of the judgment of the High Court occurs in the Laws (Continuance in Force) Order, 1958, and the present is the proper stage to examine the exact effect of that Order on the point in question. That Order purports to have been made in pursuance of the proclamation of 7th October and though it was made and published on the 10th of October it is "to be deemed to have taken effect immediately upon the making of the proclamation of the 7th day of October 1958." The Courts derive their present jurisdiction from clause (2) of Article 2 of that Order which provided "Subject as aforesaid (i.e., to any Order of the President or any Regulation made by the Chief Administrator of Martial Law) all Courts in existence immediately before the Proclamation shall continue in being and, subject further to the provisions of this Order, in their powers and jurisdiction." The existing writ jurisdiction of the Supreme Court and High Court was however restricted inter alia by the provision that "No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either." This was followed by Article 3 which provided :

"No Court or person shall call or permit to be called in question (ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation." The argument put forward by the learned Attorney-General is that any interference by the Supreme Court or by the High Court in the exercise of appellate jurisdiction with the Order made by the Deputy Martial Law Administrator confirming the sentence would amount to questioning a Martial Law Order. The argument found favour with the High Court not only in the present case but in two other cases, namely, Aziz Din v. The State (P L D 1959 Lah. 336), and the unreported case of Mian Muhammad Sajid v. The State (Criminal Revision No. 46 of 1959). The High Court agrees with Mr. Brohi's argument that since the jurisdiction derived by Courts including the High Court and the Supreme Court by clause (2) of Article 2 of the Laws (Con tinuance in Force) Order is subject only to an Order of the President or a Regulation made by the Chief Administrator of Martial Law and not to a Martial Law Order, the appellate jurisdiction of the High Court or of the Supreme Court if it existed otherwise continues, it not having been taken away by any Regulation of the Chief Martial Law Administrator. But it takes the view that since Article 3 prohibits a Court from calling in question any Martial Law Order or Martial Law Regulation, the exercise of appellate jurisdiction, if the High Court makes an order inconsistent. with an order made by a Zonal Martial Law Administrator, must come into conflict with the Martial Law Order itself which confers on Administrator the power to confirm a sentence. We will examine this argument presently but before we express ourselves on that crucial question we might prepare the ground for our conclusion by referring here to the learned Attorney-General's argument that in part (ii) of Article 3, the words "Martial Law Order" must be read with the words "in pursuance of" which occur before the words "the Proclamation" his con tention in effect being that the word `Order' where it occurs for the first time in part (ii) means an order made in a particular case in pursuance of a Martial Law Order and that since the order of confirmation of the sentence in this case was made by the Deputy Martial Law Administrator in exercise of the powers given by Martial Law Order No. 10, the order of confirmation cannot be questioned because of Article

3. We regret we cannot accept any such interpretation of the part in question. The word `Order' with a capital `O' wherever it occurs in the Laws (Continuance in Force) Order means a body of rules or an order of a general nature such as "a conferment of jurisdiction or authority" and not an order made in a particular case. Thus in clause (7) of Article 2 of that Order the word `Order' (with a capital 'O') occurs twice and the word `order' (with a small 'o') thrice in the sense indicated above. Further, if the interpretation put forward by the learned Attorney-General be accepted, it would make part (ii) absurd because on that interpretation it would mean that the President makes orders in each individual case in pursuance of the Proclamation which is not the case. What he does in fact under that part is to issue Orders i.e., rules and regulations which have legislative effect. Undoubtedly he. makes orders in particular cases but not "in pursuance of the Proclamation." The capital O in the word `Order' is sufficiently indicative of this position. We have thus no hesitation in repelling the Attorney-General's contention and hold that, subject to the other provisions of the Laws (Continuance in Force) Order, Article 3 in terms does not prohibit a Court from questioning a confirmation made under Martial Law Order No.

10. Before reverting to the principal question so far left un answered, we may here dispose of Mr. Nazir Ahmad Khan's other contention that Martial Law Order No. 10 is in law a "Regulation" within the meaning of Article 2 (1) of the Laws (Continuance in Force) Order and that therefore it has affected the pre-Proclamation jurisdiction of this Court as well as that of the High Court. The argument in support of this contention is to be found in some decisions of the High Court of West Pakistan Lahore particularly Chaudhri Manzur Ilahi v. The State (P L D 1959 Lab. 243), but we find ourselves unable to accept it. No definition of a Regulation or an Order is found anywhere in the Martial Law legislation. In his Proclamation of Martial Law dated the 7th October 1958, the Supreme Commander of the Armed Forces declared in paragraph 2 of the Proclamation "Martial Law Regulations and Orders will be published in such manner as is conveniently possible. Any person contravening the said Regulations or Orders shall be liable under Martial Law to the penalties stated in the Regulations." It would appear from this provision that while the Regulations prescribe the penalties, the Orders merely provide the method of enforcing the Regulations, and in Martial Law terminology that is the correct distinction between the two. A Regulation lays down the principle and policy of the law and the penalties for its infringement; it may further lay down a broad outline of the procedure, jurisdictional and processual, for the enforcement of the law. But since the area over which Martial Law may operate may be vast and unmanage able by a central agency, a wide discretion is sometimes given to the Administrators and Sub-Administrators of Martial Law in different regions from time to time to issue Orders for the enforcement of the Regulations. This position was envisaged in Martial Law Regulation No. 1 which divided the Martial Law area into three zones, appointed an Administrator for each zone and provided in clause (c) "Orders under these Regulations and additional Regulations hereinafter known as Martial Law Orders and Martial Law Regulations may be issued by me or by an Administrator or by any other officer authorised by me." Thus a general authority, was given to the Administrators to issue Martial Law Orders and Martial Law Regulations but this authority was to be exercised consistently with the Orders and Regulations issued by the Chief Administrator, Martial Law. In this manner the main legislative authority was kept by the Chief Martial Law Administrator with himself while the Administrators and other officers were to exercise a kind of delegated legislative authority. This authority could, of course, extend to the making of Orders, determining the manner in which the principle and policy of a Regulation was to be carried out and the penalties prescribed therein enforced. Of course, the Chief Martial Law Administrator could himself issue Orders but it would be incorrect to suppose that such Orders had the status of Regulations. It was for the Chief Martial Law Administrator himself to determine whether he would describe a rule as a Regulation or as an Order and it may well be that the difference between the two was one of form and not of authority. There can however be no doubt that with and after the promul gation of the Laws (Continuance in Force) Order the distinction between the two became fundamental and this was recognised by Article 2 which preserved the existing jurisdiction of the Courts subject to any Regulation made by the Chief Administrator of Martial Law, indicating quite clearly that so far as the jurisdiction of a Court to entertain and determine an appeal was concerned it was kept intact and could only be taken away by a Regulation. Article 3 (ii) which prohibits the Courts from calling in question any Martial Law Regulation or Martial Law Order has therefore to be read with Article

2. In plain language part (ii) of Article 3 means no more than that a Court cannot declare a Martial Law Regulation or a Martial Law Order as invalid or ultra vires. But calling in question an order made under a Martial Law Order is entirely different ; it may or may not amount to questioning the Martial Law Order itself, the former being prohibited, the latter not. For instance, in this very case the order of confirmation is by a Deputy Martial Law Administrator and we have not been shown on behalf of the State any provision by which an Administrator could delegate his responsibilities under Order 10 to a Deputy Martial Law Administrator. Therefore the order of confirmation not being under Martial Law Order No. 10 is not immune from attack. In the present case we are not calling in question any Martial Law Order but merely an order made by a Martial Law Authority ; nor are we issuing a writ against any Martial Law authority the jurisdiction in respect of which has been expressly taken away by Article 2 (5). There is one point more which should be mentioned in this connection. Regulation I which distinguishes a Regulation from an Order came into force on 7th October; the Laws (Continuance in Force) Order was published on 10th October ; and Martial Law Order No. 10 was notified on 18th October. It is reasonable to presume that the draftsman of the Laws (Continuance in Force) Order was aware of the distinction between a Regulation and an Order and that the author of Martial Law Order No. 10 was cognizant of the difference in the phraseology of Articles 2 and 3 of the Laws (Continuance in Force) Order. If therefore Martial Law Order No. 10 was issued as an Order and not as a Regu lation, the intention could only be that it was not to affect the jurisdictions of the Courts which had been subject to any Regulation by the Chief Martial Law Administrator, preserved by Article 2 of the Laws (Continuance in Force) Order. We may now resume the question, answered by the High Court in the affirmative, whether the existence of appellate and revisional powers in superior Criminal Courts in respect of the decisions of lower Courts punishing contraventions of Martial Law Regulations is incompatible with the powers of confirmation reserved by a Martial Law Order for the Military authorities. In order to find a correct answer to this question which may govern the present case it is necessary to bear in mind the distinction between an incorrect decision and a void decision. A judgment is incorrect if it is wrong in law or fact ; it is void if it is pronounced by an incompetent Tribunal. One of the questions urged before us is that the Special Judge had no jurisdiction to try the offence under Martial Law Regulations Nos. 26 and 5 and that therefore his judgment in the case was void. This question needs deter mination before we approach the principal question in this appeal. The contention of lack of jurisdiction was repelled by the High Court on the ground that the Court of a Special Judge under the Hoarding and Blackmarket Order, 1956 or under the Criminal Law (Amendment) Act, Act XL of 1958, was a Criminal Court within the meaning of Martial Law Regulation I-A and Martial Law Regulation No. 2, the former running as follows:

"The Criminal Courts as by law established shall have power to try and punish any person for offences under the ordinary law and for contraventions of Martial Law Regulations or Orders." and the latter providing that; "Notwithstanding anything contained in these Regulations, the Criminal Courts as by law established shall continue to exercise jurisdiction over persons accused of all offences committed under the ordinary law and also under these Regulations.'. The argument of the learned Attorney-General is that if a Court can be described to be a criminal Court then its jurisdiction to try an offence under any Martial Law Regulation or Order or under the ordinary law irrespective of any limita tions imposed on it by the ordinary law is established by these two Regulations. In reply to the questions put to him from the Bench, he was driven to contend that on this construction of the Regulations a Third Class Magistrate would be as competent to try an offence punishable with death under a Martial Law Regulation as a Tribunal set up to punish offences against the acquisition or sale of foreign exchange. He went to the extent o f maintaining that even territorial limitations or on jurisdictions of ordinary Courts would not be applicable after the promul gation of these two Regulations and that an ordinary Court in East Pakistan would be competent to try an offence under a Martial Law Regulation or ordinary law, committed in West Pakistan. Before we accept any such interpretation which would lead to utter chaos we have to be satisfied that the Regulations bear the meaning which the learned Attorney-General claims for them. Each of the Regulations refers to the ordinary criminal Courts "as by law established" and the words within the quotation can only mean that if the law imposes any limita tion on their powers either as regards territory or as regards persons or as regards offences, such limitations must continue to exist even after the promulgation of the two Regulations. This is apparent from Regulation No. 2 itself which says that `Criminal Courts shall continue to exercise jurisdictions which can only mean that they shall continue to exercise their existing juris diction as defined by law. Now a Special Judge, whether appointed under the Criminal Law (Amendment) Act or under the Hoarding and Black-market Order, is a Court of special jurisdiction, its jurisdiction being confined only to a specified class of cases in which the present case does not fall. If, therefore, the Court of a Special Judge was incompetent to try a particular offence, it would not become competent to try it unless a Martial Law Regulation so provided. It is conceded that there is no express provision empowering a Special Judge to take cognizance of and try an offence under Martial Law, Regulation 26 read with Martial Law Regulation 5, but it is contended that since by reason of subsection (2) of section 16 of the Hoarding and Black-market Order he is deemed to be a Court of Session, he was "criminal Court" for the purposes of the two Regulations. This argument completely overlooks the words "as by law established" which are used in both the Regulations to indicate the criminal Courts that are to try Martial Law offences and under the law the offence of which the appellant has been convicted was exclusively triable by the Court of Session. Section 29 of the Criminal Procedure Code provides that "Subject to the other provisions of this Code, any offence under any other law (i.e., law other than the Pakistan Penal Code), shall, when any Court is mentioned in this behalf in such law, be tried by such Court," and that "when no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second Schedule to be triable." Thus an offence under the Hoarding and Black-market Order could by reason of this provision be tried by a Special Judge, but in the present case the prosecution case throughout has been that an offence under Martial Law Regulation No. 26 is not the same offence as an offence under the Hoarding and Black-market Order, that that Regulation in. its scope may be wider or narrower than the Hoarding and Black-market Order according to its interpretation and that the appellant was not being proceeded against for any offence M committed under that Order and his prosecution was confined to an offence under Regulation

26. If the Special Judge was not required to act under the Special Act which had created him, then for the purposes of an offence created by Regulation 26 he could act only if he came within the definition of the High Court or the definition of a "Court constituted under this Code by which such offence is shown in the eighth column of the second Schedule to be triable". He was not either, because neither the status of a High Court nor that of an ordinary criminal Court constituted under the Code of Criminal Procedure is claimed for him, and none of the Regulations within the meaning of section 29 (1) of the Code of Criminal Procedure specifically mentions him as a Court competent to try an offence under Regulation

26. When a Martial Law Regulation creates an offence and empowers ordinary criminal Courts to try it, the intention, in the absence of a clear indication to the contrary, always is that such offences having become a part of the law to be administered by those Courts are to be tried under the Code of Criminal Procedure. A High Court or a Court of Session therefore was the only Court competent to try an offence under Martial Law Regulation No. 26 because the offence being punishable with 14 years' rigorous imprisonment it was under the eighth Schedule to the Code of Criminal Procedure exclusively triable by a Court of Session. It is contended by the learned Attorney-General, however, that for purposes of section 29 and Schedule eight the Court of a Special Judge is a Court of Session because of subsection (2) of section 16 of the Hoarding and Black-market Order, 1956 which says "Save as provided in clause (1), the provisions of the said Code, except the pro visions of section 196-A and of Chapter 33, shall, so far as they are not inconsistent with this Order, apply to all proceedings of a Special Judge, and for purposes of the said provisions the Special Judge shall be deemed to be a Court of Session trying cases without a jury." This subsection does not have the effect of converting a Special Judge into a Court of Session for all the purposes of the Code of Criminal Procedure. The subsection says no more than that the provisions of the Code which are not inconsistent with the Order, shall apply to the proceedings of a Special Judge, meaning thereby that the procedure to be adopted by a Special Judge shall conform with the procedure prescribed by the Code unless on any matter provided by the Code there is a different provision in the Order. The provision has nothing to do with the question what the jurisdiction of a Special Judge is, that having been defined elsewhere, and takes it for granted that under the other provisions of the Act his jurisdiction to proceed with the case exists. In the same manner, when this subsection says that for the purposes of the provisions of the Code of Criminal Procedure the Special Judge shall be deemed to be a Court of Session trying cases without a jury, it merely means that for purposes of the procedure to be adopted by him he should consider himself to be a Court of Session lo not for all purposes but only for the purpose of trying the case without a jury, that is, he is a Judge of facts and law. If the contention of the learned Attorney-General that this subsection has the effect of converting a Special Judge into a Court of Session for all purposes be accepted such Judge would be com petent to hear appeals and revisions from the orders of Magistrates in the Division and exercise all other powers conferred by the Code of Criminal Procedure on a Sessions Judge, a result which was never intended and cannot be gathered from the words used. It would, therefore, follow that Mirza Kambar Ali Beg was not competent to take cognizance of or to try the offence if, as alleged by the prosecution, the offence charged was distinct H from an offence under the Hoarding and Blackmarket Order which 1 of course he was competent to try. Thus the entire proceedings before him were void and coram non judice. We are now in a position to deal with the vital question whether an appeal was barred by Article 3 (ii) because of the necessary implication that there may be a conflict between an appellate order and an order of confirmation. Kayani, C. J., who wrote the judgment in the case thus put this point "Mr. Brohi's interpretation of the President's Order is undoubtedly correct, but Article 3 of the same Order forbids us from questioning a Martial Law Order, and if we are not to question Order No. 10, the effect will be that while on the one hand the Zonal Administrator may confirm a sentence passed by a criminal Court, the High Court may set it aside on the other." If now an appeal or revision being competent, the order in the case is that of quashing the conviction and the sentence on the ground that. the Special Judge had no jurisdiction to try the offence, it is difficult to see how any such order would conflict with the Administrator's order confirming the proceedings. Martial Law Order No. 10 empowers an Administrator to confirm the proceedings of cases tried under the Martial Law Orders and Regulations by the "criminal Courts" and these "criminal Courts" are undoubtedly the "criminal. Courts" mentioned in Regulation No. 1-A and Regulation No. 2, both of which refer to them as "criminal Courts as by law established." If, therefore, the Special Judge could not, under the law, take cognizance of and try an offence under Martial Law Regulation 26 read with Regulation 5 he can certainly not be described to be a "criminal Court as established by law" for the purposes of this case. Suppose a Third Class Magistrate had tried this case, given a sentence of 5 years' rigorous imprisonment to the appellant and the proceedings had been confirmed by the Administrator, could it possibly be contended that the High Court by quashing and setting aside the sentence in appeal had acted contrary to Martial Law Order No. 10 ? Such order would undoubtedly be in conflict with the order of confirmation by the Administrator, but the question is whether the Administrator's order could in such a case be said to have been an order under Martial Law Order No. 10, or, to take an extreme case, suppose a private person arrogated to himself the position of a Magistrate, tried and convicted a person of an offence under a Martial Law Regulation and the Administrator confirmed the proceedings, will the order of confirmation in such a case also be an order under Martial Law Order No. 10 ? The answer must be in the negative for the simple reason that in the cases supposed there have been no proceedings before a "criminal Court established by law", and therefore there is nothing to confirm. An order or judgment by a Court which lacks jurisdiction in the matter is a nullity and there can be no question of confirming what does not exist in law. Just as a void agreement cannot be ratified and is not enforceable unless the ratification itself amounts to a new contract, a void transaction remains void and cannot be ratified or confirmed. In the present case, if the Special Judge had no jurisdiction to try and convict the appellant of an offence under Martial Law Regulation No. 26, the proceedings before him were void ab initio, and he produced nothing which could be confirmed by an Administrator under Martial Law Order No.

10. What had to be confirmed by the Administrator was proceedings of a case tried under the Martial Law Orders and Regulations by a "criminal Court as established by law", and if this condition was not satisfied, namely, that the proceedings were not of a "criminal Court established by law", the order of confirmation itself was void and the High Court by quashing the conviction and the sentence would not come into conflict with an order made by the Administrator. It would certainly not come into conflict with the Martial Law order itself, and it is accepted by the High Court that if a conflict between a Martial Law Order and an appellate order does not arise, the jurisdiction of the High Court to entertain an appeal would not be affected. The High Court cases cited on behalf of the State are distinguishable, the appeal or revision in them being on facts. We do not consider it necessary to decide the question whether a decision in appeal on facts contrary to what has been confirmed by the Administrator would amount to questioning the Martial Law Order No. 10 because that question does not arise in this case, though revision and confirmation did exist together between 24th of December 1958 and 16th of January 1959. In the present case unless we can hold the impossible that the Administrator could by the act of confirmation create an ad hoc Court ex post facto contrary to the Regulations by the Chief Martial Law Adminis trator, the confirmation would be void and void added to void is doubly void. In fairness to the Deputy Administrator and to the Adminis trator because it appears that the sentence has been confirmed by him as well, we should mention that from the manner in which the judgment was written by the Special Judge it was impossible for the confirming authority to appreciate the legal and factual aspect of the case or to separate the alleged Martial Law offence from the alleged pre-Martial Law black-market deal for which the appellant was admittedly not tried. The Court which tried this Martial Law offence was not set up by the Administrator; nor was the case sent to that Court by the Administrator himself. The jurisdictional aspect of criminal Courts, especially where it raises intricate questions of law, was a matter with which he was not supposed to be conversant. Therefore when he confirmed the sentence he could not have been conscious of the position that what he was confirming was something that did not exist in law or that he was purporting to validate what could not be validated. On the merits apart from the statement of Abdullah Khan who is a pardoned accomplice that the appellant came to his show room on 8th of October and asked him to finalize the deal, there is no other evidence of any act or omission by the appellant subsequent to the promulgation of Regulation No.

26. Some witnesses have given evidence that when they negotiated for the purchase of the car from the Car Mart Abdullah Khan told them that the car belonged to Khuhro and could not be sold for less than Rs. 60,000, but it cannot possibly be contended that these statements are admissible evidence against the appellant or that they amount to independent corro boration. And in the absence of such corroboration the prosecution took a grave risk in separating the charge under the Hoarding and Blackmarket Order from that under Martial Law Regulation No.

26. An officer of the Special Judge's experience could not be unaware that law requires corroboration of an accomplice by "independent evidence", and that an accomplice's own previous statements or the confession of a co-accused is not corroboration by independent evidence. ' There Q was, however, not one word in the judgment on this vital point for the consideration of the confirming authority. We accept the appeals and quash the convictions and sentence of the appellant. Being on bail under the orders of this Court he is discharged from his bail bond. A. H. Appeals accepted.