P L D 1959 Baghdad﷓ ul﷓Jadid 7 (PLP)

Farzand Ali for Respondent. Allah Diwaya was tried by Mr. Nur Ahmad Hashmi, Magistrate, 1st Class with Powers under section 30 of the Code of Criminal Procedure at Hasilpur in the district of Bahawalpur, for the breach of Martial Law Regulation No. 28 and was sentenced on the 12th of November 1958 to seven years' rigorous imprisonment and a fine of Rs. 200 default in payment of which was to entail further rigorous imprisonment for one year. Allah Diwaya presented an appeal to this Court which came up for hear ing before me on the 20th of January 1959 but as I was doubtful whether this Court could hear an appeal or a revision against the order of a Magistrate when convicting a person for breach of a Martial Law Regulation or a Martial Law Order, I adjourned the case to allow the counsel for the parties to study that point. The case has now come up before me again.

2. It was contended that‑as the sentence was passed by a Magistrate, the course of appeal had to be the same as laid down in the Code of Criminal Procedure and, therefore, I could hear the appeal. It appears to me, however, that Martial Law Order No. 10 issued by the Chief Martial Law Administrator on the 18th of October 1958, which was published in the Gazette of Pakistan (Extraordinary) dated the 22nd of October 1958, by implication bars an appeal to the ordinary criminal Courts in cases to which the conviction is recorded for breach of Martial Law Regulation or a Martial Law Order. I have expressed the same view in Criminal Revisions Nos. 11 and 12 of 1959 recently disposed of by me at Lahore, and nothing that has been said during arguments in this case has made me change that opinion.

3. One or two arguments addressed in this case may be dealt with. It was contended that President's Order (Post Proclamation) No. I of 1958 by its 4th Paragraph made it clear that the laws kept in force by that Order could be amended by a Regulation issued by the Chief Martial Law Administrator and as no Martial Law Regulation was issued by that officer but only a Martial Law Order was, no amendment of the Code of Criminal Procedure, which was one of the laws continued in force, could be deemed to have been affected. This argument does not impress me, because Martial Law Order No. 10, dated the 18th of October 1958, referred to above, was issued by the Chief Martial. Law Administrator who was competent to issue a Martial Law Regulation, and it appears to me that the mere fact that the provision was not called a Martial Law Regulation but only a Martial Law Order does not deprive it of the force it was intended to have.

4. During arguments, reliance was placed on the decision of the Peshawar Bench of this Court given by Muhammad Shafi and Habibullah, JJ. in the case reported‑as Gul Muhammad and others v. The State (P L D 1959 Pesh. 49), wherein it was remarked by Muhammad Shafi, J. that the above‑mentioned Martial Law Order No. 10 was ultra vi res. Habib Ullah, J., however, made it clear that he was not to be taken to be expressing agreement with the views of his learned colleague on points other than the one which fell for determination in the case before them. The only point that arose in the above case was whether or not bail could be granted to accused persons by ordinary criminal Courts trying breaches of Martial Law Regulations or Martial Law Orders and it is, there fore, obvious that the decision with regard to the Martial Law Order No. 10 being ultra vires is not of a Division Bench and on that account binding on me sitting in Single Bench. The learned Judge who expressed the view that Material Law Order No. 10 issued by the Chief Martial Law Administrator on the 18th of October 1958 was ultra vires did not, as far as I can see from the judgment, give any reason for the view he expressed and as I am of the opinion that Martial Law Order No. 10 was not ultra vires, I decline to hold that it was.

5. Martial Law Order No. 10 dated the 18th of October 1958 issued by the Chief Martial Law Administrator shows that after an order has been recorded by an ordinary criminal Court with regard to a case relating to breach of a Martial Law Regulation or a Martial Law Order, the record is to be sent to the Martial Law Administrator of the Zone in which the Court which passed the order is situate and thereupon steps mentioned in the Martial Law Order are to be taken. The present case was not sent by the trial Magistrate to the Martial Law Administrator, Zone B, and I direct that it be sent now by the trial Magistrate to the Martial Law Administrator for such action as he may consider necessary in the matter.

6. I am doubtful if the judgment could be announced by the learned trial Magistrate, because I remember to have come across some instructions issued by the Martial Law authorities to the effect that ordinary criminal Courts trying, cases of breaches of Martial Law Regulations or Martial Law Orders were not to announce the judgment till it had been approved by the prescribed Martial Law authority. It is true that in view of the recent amendment in the Martial Law Regulation No. 61 the jurisdiction of ordinary criminal Courts to try cases of breaches of Martial Law Regulations or Martial Law Orders has almost entirely been taken away and the necessity of sending the record by the ordinary criminal Courts to the prescribed Martial Law authorities would arise but in rare cases, but I have been told that a number of cases of breaches of Martial Law Regulations or Martial Law Orders were decided by ordinary criminal Courts all over the Province and the judgments were announced by them without obtaining the concurrence of the Martial Law authorities to the finding arrived at and the sentence passed. If the instructions mentioned above are considered valid in the face of Martial Law Order No. 10 issued by the Chief Martial Law Administrator on the 18th of October 1958, they should be brought to the notice of all criminal Courts in the Province by the Martial Law authorities.

7. In view of what I have said above, I hold that this Court has no jurisdiction to hear this appeal which I hereby reject on the ground that it is incompetent.

8. A copy of this judgment shall be sent to the Martial Law Administrator, Zone B, Lahore, whose attention will be drawn to paragraph 6 above. K. B. A. Appeal dismissed.