1992 P Cr (PLP)

Nemo for Respondents. Date of hearing: 25th February, 1992. IRSHAD HASAN KHAN, J.‑‑‑ This petition under Article 199 of the Constitution of Islamic Republic‑of Pakistan calls in question the order, dated 25‑12‑1985 passed by the President, Special Military Court No.25, whereby the petitioner was convicted and sentenced to death and fine of Rs.10,000.

2. Briefly the facts are that the petitioner alongwith three others was tried by the Special Military Court No.25 in pursuance of case F.I.R. No.202 of 1985, Police Station Lyton Road, Lahore, under sections 364, 392, 302 read with section 34, P.P.C. The role assigned to the petitioner was that while driving the Rickshaw, he alongwith his co‑accused committed murder of the victim. The Special Military Court acquitted the three co‑accused namely, Muhammad Zikriya, Muhammad Hanif and Muhammad Ismail, but convicted the petitioner to death, as stated above.

3. The first ground urged by learned counsel for the petitioner is that under para. 5 of the C.M.L.A.'s. Martial Law Order No.4 read with section 87 of the Pakistan Army Act, 1952, a Special Military Court ought to have comprised three Army Officers and the Magistrate could only be the 4th member. The submission is that in the instant case, only two Army Officers were members of the Special Military Court, which tried the petitioner and, therefore, it was not properly constituted. On these premises, it is contended that the entire proceedings before the Special Military Court are coram non judice. A similar point was raised in Malik Ghulam Mustafa Khar v. Pakistan P L D 1988 Lah. 49, but was repelled by the Full Bench. The decision on this particular issue has not been reversed by the Supreme Court of Pakistan in Federation of Pakistan v. Malik Ghulam Mustafa Khar P L D 1989 SC

26. Furthermore, the petitioner never raised this question before the Special Military Court when he was being tried and therefore, cannot be permitted to raise it at this belated stage.

4. It is next contended that the impugned conviction and sentence of the petitioner is based on misreading of evidence, inasmuch as, there were four accused in the case, but on the basis of the same evidence, three have been acquitted by the confirming authority while only the petitioner has been convicted. The contention is devoid of any force. The question of confirmation or otherwise of the sentence imposed by the Special Military Court was to be decided on the basis of evidence available in each case and the nature of allegations contained in the case. Here the confirming authority decided to confirm the sentence to the extent of the petitioner, which was within its competence and, therefore, the same cannot be questioned on this ground.

5. It is next contended that the impugned proceedings are based on fabricated evidence, in that, the S.S.P., Lahore, held a press conference, in which the items alleged to have been recovered from the accused persons were displayed and the recoveries were shown to the present respondents, but the same were later alleged to have been recovered from the accused persons on 9‑9‑1985. Mr. Naveed Rasool Mirza further submitted that the deposition of the investigating officer was full of contradictions, which should not have been taken into consideration. It was asserted that the prosecution case rests entirely on the last seen evidence based on the testimony of P.W.9 Mazhar Iqbal, which does not inspire confidence. The contention is not sustainable. The points raised by learned counsel for the petitioner relate to appreciation of evidence, which cannot be undertaken in the exercise of writ jurisdiction. No case of misreading of evidence or non‑consideration of any material piece of evidence has been specifically pointed out by learned counsel for the petitioner. Needless to point out that the record of the proceedings of the Special Military Court could not be produced by the State probably because it might have been destroyed, in that, under Rule 129 of the Pakistan Army Act/Rules, 1954, the proceedings of a Military Court need not be preserved for a period beyond three years. The accused, however, is entitled under Rule 130 to demand certified copies of the proceedings and revision on payment of requisite fee before the destruction of the same within the stipulated period. In the instant case, the conviction was recorded in 1985, whereas the writ petition was filed in 1986, but no explanation has been given as to why he did not procure certified copies of the, proceedings. Viewed from this angle as well, in the absence of any material on the record, the question relating to misreading of evidence cannot be considered.

6. It is next contended that the entire proceedings before the Special Military Court were mala fide, in that, the petitioner was falsely involved in the case at the instance of a serving General of the Pakistan Army. No details whatsoever of the alleged mala fides on the part of the complainant were either pleaded before the Special Military Court, in the mercy petition or even supplied in the writ petition and, therefore, on the basis of vague and bald allegations, the impugned order cannot be struck down. Refer Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC

151. Additionally, the questions raised in this petition are hit by the doctrine of past and closed transaction as well as by Article 270‑A of the Constitution. In view of the above, we find no force in the writ petition, which is hereby dismissed with no order as to costs. N.H.Q./K‑33/L Petition dismissed.