P L D 1959 (W (PLP)

C/HANGEZ, J.

‑This order will dispose of Writ Petitions Nos. 281 to 284 of 1959 which have been filed by Muhammad Siddique. By these writ petitions the petitioner has questioned the legality of the orders passed by the Additional District Magistrate, Sheikhupura, and the Additional Sessions Judge, Lahore at Sheikhupura. The relevant facts leading to these petitions are as follows. The petitioner Muhammad Siddique was tried along with Muhammad Ramzan and Maqbul Ahmad under Martial Law Regulations Nos. 25, 26 and 27 by the Additional District Magistrate, Sheikhupura, on the allegation that the petitioner, who is running a tannery at Muridke, had in his possession smuggled art silk yarn of Japanese origin, contained in bags Exh. P. 1 to P. 4 which he had got concealed through Maqbul Ahmad accused and one Gharibu Christian at the dera of Muhammad Ramzan accused situated at the Budhewala well in village Chhohewali. The bags Exhs. P. 1 to p. 4 containing the art silk yarn were recovered by the police and military authorities from the possession of Muhammad Ramzan accused on the 26th of October 1958. The learned Additional District Magistrate acquitted Muhammad Ramzan and Maqbul Ahmad accused but convicted the petitioner under Martial Law Regulations Nos. 25 and 27 and sentenced him to three years' rigorous imprisonment and a fine of Rs. 25,000, or in default of payment of fine to undergo two years' further rigorous imprisonment.

2. The petitioner was also challaned in another case along with one Muhammad Sharif under Martial Law Regulations Nos. 25, 26 and 27 on the allegation that he had concealed art silk yarn contained in two boxes, Exhs. P. 1 and P. 2 under a stack of bark in his tannery at Muridke for the purpose of black‑marketing. These boxes were recovered by the police and Military authorities on the 28th of October 1958. The learned Additional District Magistrate acquitted Muhammad. Sharif accused but convicted the petitioner under Martial Law Regula tions Nos. 25 and 27 and sentenced him to rigorous imprison ment for three years and a fine of Rs. 25,000, or in default of payment of fine to undergo further rigorous imprisonment for two years. The sentences in both the cases were ordered to run concurrently.

3. Being not sure of the correct legal position, the petitioner filed appeals, as well as revisions in the Court of the Additional Sessions Judge, Lahore at Sheikhupura, against his convictions and sentences in both the cases. The learned Sessions Judge, relying on a decision of this Court as Aziz Din v. The State (P L D 1959 Lah. 336), held that neither appeals, nor revisions lay against the convictions and' sentences in these cases. He accordingly rejected the appeals and revisions without going into the merits of the case. Being dissatisfied with the decision of the learned Additional Sessions Judge, the petitioner has filed Writ Petitions Nos. 282 and 284 of 1959, whereby he has challenged the order of the Additional Sessions Judge. He has also filed Writ Petitions Nos. 281 and 283 of 1959 /against the orders of the Additional District Magistrate, whereby he has challenged his convictions and sentences.

4. The learned counsel for the petitioner, Mr. M. Anwar, has vigorously argued that the principle laid down in Aziz Din v. The State has no application. to the cases in hand and that Martial Law Order No. 10 does not govern them. He maintains that under paragraph 3 of Martial Law Regulation No. 61, as reconstituted, a revision did lie to the Court of Session in respect of sentences imposed by the Additional District Magistrate. This point has been very frankly conceded by Maulvi Mushtaq Hussain, Assistant Advocate‑General, who has appeared for the State. After hearing the learned counsel for the petitioner we have no hesitation in holding that this contention is well founded and must prevail. The relevant provisions of the Martial Law Regulation No. 61. are as follows :‑ "

2. Bar of appeal etc. (1) No appeal shall lie from any sentence imposed in a case tried in pursuance of paragraph 1, nor shall any revision lie from any sentence Imposed in a case tried by a Special Military Court in pursuance of that paragraph. (2) 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 twenty-fourth day of December 1958, and confirmed subsequently by the Zonal Martial Law Administrator concerned. Revision of sentences imposed by Magistrates (1) From sentences other than death imposed by Magistrates in cases tried in pursuance of paragraph 1, an application for revision shall lie within fifteen days‑ (a) to the Court of Session in respect of sentences other than imprisonment, transportation or death ; (b) to the Court of Session in respect of sentences of imprisonment for a term not exceeding four years, whether or not combined with any other punishment ; (c) to the High Court in respect of all other sentences. (2) The Court of Session in the case of applications made under clauses (a) and (b) of sub‑paragraph (1) and the High Court in the case of applications made under clause (c) of that sub‑paragraph shall exercise the powers (other than powers under section 426 of the. Code) conferred on a High Court by subsection (1) of section 439 of the Code and pass orders accordingly, and the provisions of subsections (2), (4) and (6) of that section shall apply to the Court of Session or the High Court, as the case may be, hearing the application. (3) No application for revision shall lie from an order passed under sub‑paragraph (2), and no Court shall call such an order in question."

5. It is not disputed that the Additional District Magistrate had tried these cases to pursuance of paragraph l of Martial Law Regulation No. 61 and as such there can be no manner of doubt that a revision did lie to the Court of Session in respect of sentences imposed by the Additional District Magistrate as provided by paragraph 3 of the Regulation. Martial Law Order No. 10, which was issued by the Chief Administrator, Martial Law, Pakistan, on the 18th of October 1958, reads as follows :‑ "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." Paragraph 5 of Martial Law Regulation No. 61, as reconstituted on the 4th of February 1959, reads as follows :‑ " Confirmation of sentences imposed by Special Military Courts: (1) Every sentence imposed by a Special Military Court trying a case in pursuance of paragraph 1 shall be subject to confirmation as prescribed under the Pakistan Army Act, 1952, (XXXIX of 1952), in respect of sentences imposed by a Field General Court Martial. (2) Sentence imposed 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 under Martial Law Order No.

10. It will thus be seen that after Martial Law Regulation No. 61 came into force, the sentences imposed by Magistrates in cases tried in pursuance of paragraph I of this Martial Law Regulation were not required to be confirmed by the Zonal Martial Law Administrator, nor were these proceedings required to be forwarded to the Judge Advocate General for review under Martial Law Order No.

10. In view of this clear provision contained in Martial Law Regulation No. 61, which came into force on the 24th of December 1958, there can be no doubt that Martial Law Order No. 10, has no application to cases which are tried by Magistrates in pursuance of paragraph 1 of Martial A Law Regulation No.

61. In Aziz Din v. The State, referred to above the trial had concluded long before Martial Law Regula tion No. 61 had been promulgated and as such the trial had not taken place in pursuance of paragraph 1 of that Regulation, and consequently, the case was obviously governed by Martial Law Order No.

10. It is, therefore, quite clear that the principle laid down in Aziz Din v. The State could not have been applied to the facts of the present case. The learned Additional Sessions Judge seems to have missed the true import and scope of that ruling. We have no doubt in our minds that Martial Law Order No. 10 did not govern these cases and that the learned Additional Sessions Judge has erroneously held that a revision did not lie to the Court of Session against the sentences imposed by the Additional District Magistrate.

6. It now remains to be considered whether in view of sub‑paragraph (3) of paragraph 3 of Martial Law Regulation No. 61, this Court has got jurisdiction to‑issue a writ of certiorari. This sub‑paragraph provides that `no application in revision shall lie from an order passed under sub‑paragraph (2) and no Court shall call such order in question'. After a careful consideration of this provision, we have come to the conclusion that sub‑paragraph (3) applies only when the competent authority has exercised jurisdiction under sub‑paragraph (2). But as in the present case the Court of Session had failed to exercise the jurisdiction which was conferred on it, we do not think that the provision of sub‑paragraph (2) is a bar to the exercise of our writ jurisdiction. Under clause 4 of Article 2 of the Laws B (Continuance in Force) Order, 1958, the power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari is expressly given to the Supreme Court and the. High Courts. In view of this power given to the High Courts and in the absence of any express provision in any of the Martial Law Regulations barring our jurisdiction in this regard, we consider that these are fit cases for issuing a writ of certiorari. We accordingly accept Writ Petitions Nos. 282 and 284 of 1959 and quash the orders of the Additional Sessions Judge, Lahore at Sheikhupura, dated the 20th of May 1959 in both the cases. The learned Additional Sessions Judge will now proceed to decide the revision petitions in accordance with law. In the circumstances of the case, however, there will be no order as to costs.

7. In the view which we have taken in the matter, Writ Petitions Nos. 281 and 283 of 19`9 have become infructuous. The petitioner has now his remedy of being heard in revision by the Additional Sessions Judge, and consequently we think that these are not fit cases for the exercise of writ jurisdiction at this stage. These petitions are accordingly dismissed as infructuous. There will be no order as to costs.

8. The petitioner's counsel has been asked to appear before the Additional Sessions Judge, Lahore at Sheikhupura, on the 27th of June, 1959, who should give priority to the hearing of the revision petitions. A.H. Order accordingly.