P L D 1959 (W (PLP)

MUHAMMAD SHAH, J.‑Gul Muhammad & Brothers Limited are Iron and Steel dealers and Cement merchants in Peshawar and Gul Muhammad one of its partners, was arrested on the 19th of October 1958, for having committed an offence under Martial Law Regulation No. 25, which is to the following effect:‑ "No one shall hoard any article of public necessity or refuse to declare his stock of commercial commodities when required to do so by any military or civil authority or fail to put on sale goods meant for public purchase. Failure to comply shall be punishable. Maximum punishment 14 years' R. I." He was produced before a Magistrate on the following day, who remanded him to judicial lock‑up for five days, on the expiry of this period he was again produced before the same Magistrate, who remanded him to custody for another ten days. Thereafter, as the time for remand expired, he was produced for further remand before different Magistrates and is still in the judicial lock up. Subsequently three other persons, namely, Ayaz Muhammad, Munawar Din and Syed Muhammad Hussain were arrested, the first mentioned on the 31st of October 1958, and the remaining two on the 1st of November 1958. All of them were produced before the Magistrate from time to time for remand to the judicial custody, which was accordingly granted. They are still in the judicial lock‑up for having committed offences under Regulation No. 25, reproduced above, and No. 26, which runs as under:‑ "No one shall indulge in "Black Marketing" of any commo dity or goods. Maximum punishment 14 years' R. I". All these four persons have now made an application under sections 498 and 491 of the Criminal Procedure Code and sub section (2) of section 2 of the President's (Post Proclamation) Order No. I of 1958, for production in Court of the body of the petitioners and for their release. The learned counsel appearing for them has given up his prayer for releasing the accused under section 491 of the Criminal Procedure Code and has confined his arguments for their release on bail only. This unfortunate country, namely, Pakistan, was carved out of the United India in August 1947. At the time of its birth constitutionally it was governed by the Government of India Act, 1935, and continued to be so governed till the 29th of February 1956, when the people of Pakistan in the Constituent Assembly, which was constituted under the Indian Independence Act, gave to themselves a Constitution, under which the two Provinces of Pakistan ; i.e., East Pakistan and West Pakistan had a Provincial Assembly each, while the whole of Pakistan had a Parliament, consisting of the President and one House, to be known as the National Assembly. The first President elected was Major‑General Iskandar Mirza, who on the 7th of October 1958, issued a Pro clamation :‑ (1) abrogating the aforementioned Constitution; (2) dismissing with immediate effect the Central and Provincial Governments ; (3) dissolving the National Parliament and Provincial Assemblies; (4) abolishing all political parties ; (5) until alternative arrangements were made, bringing the whole of Pakistan under Martial Law and appointing General Muhammad Ayub Khan Commander‑in‑Chief Pakistan Army as the Chief Martial Law Administrator and placing all the Armed Forces of Pakistan under his command. Following Proclamation was issued by the Chief Martial Law Administrator :‑

1. Whereas I adjudge it essential for national requirements to exercise jurisdiction within the international boundaries of Pakistan, I, the Supreme Commander of the Armed Forces of Pakistan do hereby give notice as follows :‑

2. Martial Law Regulations and Orders will be published in such manner as is conveniently possible. Any person contra vening the said Regulations or Orders shall be liable under Martial Law to the penalties stated in the, Regulations.

3. The said Regulations may prescribe special penalties for offences under the ordinary Law.

4. The said Regulations may appoint special Courts for the trial and punishment of contraventions of the said Regulations and Orders and of offences under the ordinary law. On the 10th of October 1958, President's Order (Post Procla mation) No. 1 of 1958, was issued. It was called the Laws (Conti nuance in Force) Order of 1958, and was to come into force at once. It Lald down that notwithstanding the abrogation of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. The date of the Constitution given in this Procla mation is the date on which the Constitution came into force and not when it was made. All Courts in existence immediately before the Proclamation were to continue in being and subject further to the provisions of this Order in their powers and jurisdic tion. Notwithstanding the abrogation of the late Constitution and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to these Orders, Rules, bye‑laws, Regula tions, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having any extra‑territorial validity immediately before the Proclamation, so far as applicable and with such necessary adaptation as the President may consider to make, were to continue in force until altered, repealed or amended by competent authority. All provisions of the existing laws were made subordinate to the Regulations made by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator of Martial Law to make Martial Law Regulations. The Procla mation, the Orders made in pursuance of the Proclamation, or any Martial Law Order or Martial Law Regulations or any finding, judgment or order of a Special Military Court or a Summary Military Court, could not be called in question in any Court or by any person. The Chief Martial Law Administrator issued the first set of Martial Law Regulations on the 15th of October 1958. Pakistan was divided into three zones, i.e. Karachi Zone `A', West Pakistan, except Karachi, Zone `B' and East Pakistan Zone `C'. Each zone was placed in charge of an Administrator of Martial Law Two special Courts of criminal jurisdiction, namely, Special Military Courts and Summary Military Courts, were created by Regulation No. 1‑A. Both these Courts are given powers to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary Law. By Regulation No. 2, ordinary Criminal Courts are to continue to exercise jurisdic tion over persons accused of all offences committed under the ordinary law as well as under Martial Law Regulations and Orders. The Special Military Courts are to be convened by an Administra tor of Martial Law in his area of administration for trial of offences committed in any area to which these Regulations extend. This Court is to be constituted in the same manner and order to exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952. The provisions of that Act and of the Rules made there -under are to apply and govern all such proceedings. Any person, however, exercising the powers of a Magistrate of the 1st Class or of a Sessions Judge could be appointed a member of the Court, which could pass any sentence authorised by law or by these Regulations, but the sentences of death are to be reserved for con firmation by the appointed Administrator of Martial Law, irres pective of his rank. The procedure, which is to be followed by the Field General Court Martial, is Lald down in sections 104 to 117 of the Pakistan Army Act, XXXIX of 1952. No finding or sentence of a Field General Court Martial, however, is valid, except when it is confirmed by the Convening Officer, or if the Convening Officer so directs, by an authority superior to him. The Summary Military Courts were to be constituted by the Administrator of Martial Law by general or special order by empowering any Magistrate of the 1st Class or any Military or Naval or Air Force Officer, provided that he has been specially selected for this parti cular duty, to hold such Court in his area of administration for the trial of any offence committed in that area, The procedure, which the Summary Military Court is to follow, is the same as provided by the Pakistan Army Act, 1952. The provisions of that Act and the Rules made there-under were to apply to and govern all proceedings of the Summary Court Martial. In the Summary Court Martial, the Court is not required to record more than memorandum of evidence or frame a formal charge. It can try the offences without reference to superior authority and could pass any sentence authorised by law or by these Regulations, except death, transportation or imprisonment exceeding one year or whipping exceeding 15 stripes. The proceedings in every Summary Court is to be at once forwarded for review to the Administrator of Martial Law in the area in which the trial is held. So far as the ordinary criminal Courts are concerned, while trying offenders under the Martial Law Regulations, irrespective of the sentences which they can award, they are to follow the procedure of a summons case as Lald down in Chapter XX of the Criminal Proce dure Code. According to this procedure when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show that he should not be convicted but it shall not be necessary to frame a formal charge. If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. If the Magistrate does not convict the accused on his admission or if the accused does not make such admission, the Magistrate shall proceed to hear the compLalnant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. The Magistrate has the power to summon a witness on the application of the compLalnant or the accused. If the Magistrate upon taking the evidence produced before him, and examining the accused, finds the accused not guilty, he shall record an order of acquittal. In case he does not acquit him, but finds that the accused is guilty, then he must convict him and award him the appropriate sentence, but if he considers that the accused ought to receive a punishment different in kind from or more severe than that which such Magistrate is empower ed to inflict or that he ought to be required to execute a bond under section 106 of the Criminal Procedure Code, he must record the opinion and submit his proceedings and forward the accused to the District Magistrate or the Sub‑Divisional Magistrate, to whom he is subordinate. The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness, who has already given evidence in the case and may call for and take any evidence, and shall pass such judgment, sentence or order in the case as he thinks fit and as is according to law. Under Martial Law Order No. 2 promulgated by the Chief Administrator Martial Law, Pakistan, criminal Courts while trying offenders under the Martial Law Regulations will have the power to award punishments prescribed under the above Regulations irrespective of their power of punishments as Lald down under the ordinary law. The punishments which can be awarded under the above Regulations can be death, transportation for life or for not less than 7 years' rigorous imprisonment for not more than 14 years, whipping not more than 30 stripes, fine, unless a maxi mum is mentioned, the amount is unlimited and the forfeiture of property, either completely or in part or destruction of property either completely or in part. The offences for which the sentence of death is prescribed under the Martial Law Regulations will not be tried by Magistrate below that of a 1st Class Magistrate with powers under section 30, Criminal Procedure Code. All sentences of death awarded under these Regulations both by crimi nal Courts and special Military Courts shall be reserved for con firmation by the Chief Administrator, Martial Law, Pakistan. Under section 408 of the Criminal 'Procedure Code, any person convicted on a trial held by a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the First Class, may appeal to the Court of Session, provided when in any case an Assistant Sessions Judge or Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years, or any sentence of transportation, the appeal of all or any of the accused convicted at such trial shall lie to the High Court. Under section 407 of the Criminal Procedure Code, a person convicted on a trial held by any Magis trate of the second or third class, or any person sentenced under section 349 by a Sub‑Divisional Magistrate of the second class, may appeal to the District Magistrate. The unfortunate position, which has been created by the Martial Law Order No. 2, promulgated by the Chief Administra tor Martial Law, Pakistan, is that while under the Criminal Proce dure Code a Magistrate of the first class can award imprisonment for a term not exceeding two years and a fine not exceeding one thousand rupees, a Magistrate second class an imprisonment for a term not exceeding six months and a fine not exceeding two hundred rupees and a Magistrate third class an imprisonment for a term not exceeding one month and a fine not exceeding fifty rupees, under the Martial Law Regulations all these three Magis trates can inflict any punishment short of death. An appeal against the order of Magistrate first class or the District Magistrate, whatever sentence they may award would lie to the Sessions Judge. But if Magistrate with section 30 powers records a sentence in excess of four years then the appeal would lie to the High Court. If the Magistrate passes the sentence of death then no appeal is competent. It, however, can only be effective if it is confirmed by the Chief Martial Law Administrator, in the case of Magistrates second and third class, whatever imprisonment they may inflict upon an accused person, an appeal would lie to the District Magis trate. The position, as would appear, is on the face of it absurd, and I do hope, the relevant authorities will remove this absurdity. It is ridiculous to believe that if for example a sentence of five years is awarded by a Magistrate first class with section 30 powers the appeal should lie to the High Court, but if the Magistrates second and third class award similar sentences the appeal should be heard by the District Magistrate. The High Court, the Sessions Court or the District Magistrate or any Sub‑Divisional Magistrate empowered by the Provincial Government in this behalf may, however, under section 435 of the Criminal Procedure Code call for and examine the record of any proceedings before any inferior criminal Court situate within the local limits of its or his jurisdic tion for the purpose of satisfying itself or himself as to the correct ness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. A Magistrate whatever his power to award the sentence and whether an appeal from his order lies to the Sessions Judge or not, is inferior to the Court of Session and the latter Court has the jurisdiction to send for the record for the purpose mentioned in the aforementioned section. If the Sessions Judge or the District Magistrate thinks fit that he can report the case for the order of the High Court stating the result of his examination and if the report contains a recommenda tion that a sentence be reversed or altered, he may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond. The High Court, under section 439 of the Criminal Procedure Code, if the record is submitted to it by the Sessions Judge or the District Magistrate or has been called by itself or which otherwise comes to its knowledge, may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428. or on a Court by section 338 and may enhance the sentence. . No order under this section can be made by the High Court to the prejudice of the accused unless he has had an oppor tunity of being heard either personally or by pleader in his own defence. The powers and the jurisdiction of the Sessions Court and the High Court under this section are preserved by the Presi dent's Order (Post‑Proclamation) No. 1 of 1958. Subsection (2) of section 2, lays down that, subject as aforesaid all Courts in existence immediately before the Proclamation shall continue m being and, subject further to the provisions of this order, in their powers and jurisdictions. Under section 497 of the Criminal Procedure Code, when any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a 'police‑station, or appears or is brought before a Court, that Court has the jurisdic tion to release him on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. The Court has further power to release the accused on bail at any stage of inquiry or trial if it is of the opinion that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence. Under section 498 of the Criminal Procedure Code, the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police- officer or Magistrate be reduced. Here the case means, the case pending in the High Court or the Court of Session or in a Court subordinate thereto. The jurisdiction of the Court of Session, vested in it by this section, must also be presumed to have been preserved by the Laws (Continuance in Force) Order of 1958. It is thus clear that if a case is pending in an ordinary Court, whether under the ordinary law or under the Martial Law Regulations, the trial Court, the Court of Session and the High Court have the jurisdiction to release the accused on bail, provided the conditions Lald down in law are satisfied. It is argued that the Chief Martial Law Administrator Pakistan's Order No. 10 has taken away the powers of the Sessions Judge and the High Court to hear the appeals from the orders of the ordinary Courts convicting an accused person under the Martial Law Orders or Regulations. Order No. 10 reads as under:‑ "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". This Order to a great extent runs counter to the President's Order (Post‑Proclamation) No. 1 of 1958, as well as Martial Law Regu lation No. 2, which is to the following effect: ‑ "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". In any case whereas there is a provision made in the Army Act as well as in the Regulations that the proceedings of the Special Military Courts must be forwarded to the relevant authorities for confirmation, there is nothing in the Regulations or the Orders, requiring the ordinary criminal Courts, to forward the proceedings, to any authority for confirmation before pronouncement of the final order. The learned Assistant Advocate‑General has brought to our notice a message No. A‑8754, dated the 27th of November 1958, from Headquarter Martial Law Administration 2 Sub‑sector Peshawar, to the Deputy Commissioner, Peshawar, wherein it is stated that Martial Law proceedings of cases tried under Martial Law Orders Regulations by Criminal Courts will be forwarded for confirmation to MLA Zone `B' by District Magistrates concerned and that no appeal lies against sentences awarded by Criminal Courts under Martial Law Orders Regulations. It will be noticed that in the Proclamation issued by the Chief Martial Law Adminis trator quoted earlier in this judgment, a message finds no place as having a force of law. The Martial Law Regulations anal Orders alone have such a force. The message which is directly against the provisions of the Laws (Continuance in Force) Order of 1958, therefore, cannot possibly alter the ordinary jurisdiction vested in the ordinary criminal Courts including the Court of Session. Order No. 10, which in my view is ultra vires, may amount to a provision somewhat analogous to the powers of the Provincial Government given to them by sections 401 and 402 of the Criminal Procedure Code, but it seems to have no further effect over the ordinary powers of the Court of Session or the High Court. I am, therefore, of the opinion that Order No. 10 does not divest the Sessions Judge or the High Court to exercise the powers otherwise vested in them by the Code of Criminal Procedure or other laws enforceable in Pakistan. It is urged on behalf of the State that it has not yet been decided that the petitioners' case would be heard by the Special Military Court or the ordinary Court and, therefore, the ordinary Court or the Court of Session has no jurisdiction to release the accused on bail. I have gone through the Regulations and Orders very care fully, but have not been able to find any provision under which any authority can give an order as to how the cases would be dis tributed Between the Special Military Courts and the ordinary Courts unless such an authority is inferred from Martial Order No.

8. There is however no provision which empowers the Martial Law Administrator or any other Military Authority to with draw a case, once put in the ordinary Court, and refer it to the Special Military Court for trial or vice versa. After a certain person is arrested by the police then the provisions of the Criminal Procedure Code at once come into operation. The accused person then is triable by the ordinary Court under section 5 of the Criminal Procedure Code, which lays down that all offences under any law other than the Pakistan Penal Code shall be investigated, into, tried and otherwise dealt with according to provisions, but subject to any enactment for the time force regulating the manner or place of investigating, into, trying or otherwise dealing with such offence. Under Order No. 8 promulgated by the Chief Administrator Martial Law, Pakistan, the Sub‑Administrators are authorised to issue necessary orders after they have convened the Special Military Courts or the Summary Military Courts from which it may possibly be concluded that such Administrators have also got an authority to say as to which cases would by tried by such Special Military Courts, but until that is done the ordinary Courts would continue to exercise jurisdiction vested in them by law. Some doubt was created about the jurisdiction of the ordinary Courts to try the offences under the Martial Law Regulations under the Criminal Procedure Code, because the Martial Law Regulations are not law within the meaning of section 5 of the Criminal Procedure Code, but this doubt has been repelled by the decision of their Lordships of the Supreme Court in Constitutional Criminal Appeal No. 1 of 1957, State v. Dosso and others (P L D 1958 S C (Pak.) 533) wherein the following was held :‑ "Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitu tion. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the con templation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a justice point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d' E' tat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here expLalned a change, is; in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organise it are judged by the existing Constitu tion as guilty of the crime of treason. But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitance of the country to conform to the new regime, then the revolution itself becomes a law‑creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficiency of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the some, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revo lutionary government and the new constitution are, according to international Law, the legitimate government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d' E'tat is an internationally recognised legal method of changing a Constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new Law creating organ. Even Courts lose their existing jurisdictions, and can function only ‑to the extent and in the manner determined by the new Constitution. While on this subject, Hons Kelsen, a renowned modern jurist, says:‑ "From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself antici pated. Usually, the new men whom a revolution, brings to power annul only the constitution and the certain laws of para mount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase `remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If laws which are introduced under the old constitution continue to be valid under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution. * * * The laws which, in the ordinary inaccurate parlance continue to be valid are, from a juristic view point new laws whose import coincides war that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of vice of the one nor from that of the other. Thus it is never the constitution merely but always the entire legal order that is change by a revolution. "This shows that all norms of the old order have been dep rived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order to which no political reality any longer corresponds have ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution. It follows that, from this juristic point of view, the norms of the old order can no longer be recognised as valid norms. (General Theory of Law and State translated by Anders Wedberg, 20th Century Legal Philosophy Series, pp. 117‑118). Bearing to mind the principle just stated let us now approach the question involved in these cases. If what I have already states is correct, then the revolution having been successful it satisfies the test of efficacy and becomes a basis law‑creating fact. On that assumption the Laws Continuance in Force Order, however transitory or imperfect it may be, is a new legal order and it is in accordance with that order that the validity of the Laws and the correctness of judicial decisions has to be determined" I have no alternative but to respectfully follow the authority. Otherwise too it appears that the law of the land is that which, is made obligatory by some sanction and is enforced for their violation by a Controlling Authority. The Controlling Authority at the present moment is the Chief Martial Law Administration and the sanction behind him is the Army and the Police. It, therefore, necessarily follows that the ordinary Court has the jurisdiction to try the cases under the Martial Law Regulations, but only subject to such amendment that might have been brought about by the Martial Law Regulations and orders. So far as the case in hand is concerned, I have already men tioned in the earlier part of this judgment that the four petitioners; as they were arrested, were produced before a Magistrate for the necessary remand. This was done under section 167 of the Code of Criminal Procedure, which lays down that whenever any person is arrested and detained in custody and it appears that the investi gation cannot be completed within the period of 24 hours fixed by section 61, and there are grounds for believing that the accusa tion or information is well founded, the officer in charge of the police station or the Police Officer making the investigation, if he is not below the rank of a Sub‑Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary herein after prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. Under subsection (2) of this section, the Magistrate to whom an accused person is forward ed whether he has or has not jurisdiction to try the case may from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit. This custody, however, under no circumstance should exceed fifteen days in the whole. After the expiry of the first fifteen days, the Court has no jurisdiction to give further remand, but it can postpone the commencement of or adjourn the inquiry or trial, if it is necessary for any reasonable ca use or on account of the absence of the witnesses. Reading sections 167 and 344 together, one arrives at an irresistible conclusion that after the expiry of the first fifteen days from the arrest of an accused person, the case is to be put in a Magistrate's Court, which starts taking cognizance of it. From the date of the arrest of all the four petitioners, it is perfectly clear that their case is pending in the ordinary Court, because the first fifteen days of the arrest of all of them have expired, and, therefore, the question as to whether their cases will be tried by the Court Martial or the ordinary Court does not arise. I have, therefore, reached the conclusion that the ordinary criminal Court, established under the Code of Crimi nal Procedure, is now seized of the case of the petitioners and has definitely of the jurisdiction to entertain an application of the petitioners for bail. The Sessions Court, Peshawar has also go the jurisdiction to entertain similar applications if the petitioners fail to get the relief from the trial Court. Finally this Court has over‑all jurisdiction over all subordinate Courts. The view of the trial Magistrate and the Sessions Judge, therefore, that they have no jurisdiction to entertain the bail application, because the petitioners are being tried under the Martial Law Regulations is totally erroneous and must be set aside. The learned counsel appearing for the petitioners submit that the trial Court should be directed to expedite the trial. This, we are pretty certain, the trial Court will definitely do. If the Military Authorities are so concerned about the disposal of the cases pend ing in the civil Courts, subordinate to this Court, there does not appear to be any reason why should they show an apathy with regard to the cases to be tried under the Martial Law Regulations. It is of course a matter of great concern to this Court that although the accused were arrested in October and November 1958, their trial has not yet commenced. The perusal of the file shows that a complete challan has been put in Court. We consequently direct the trial Court to proceed with the trial in accordance with the pro cedure of the summons cases without the loss of any further time. It will not be out of place to express my anxiety that the country should have a Constitution as soon as it is possible for the Authorities to do In the absence of the Constitution the task of the Judges to construe the law becomes extremely difficult, if not impossible. As the position at present stands, any order that the High Court passes can be made infructuous by one single order, which might emanate from, either the Chief Martial Law Administrator or the two Martial Law Administrators and in certain cases were from the Military Authorities subordinate there to. For instance, in the case under consideration, although I decide that on the law as at present exists, the ordinary criminal Court alone car, try the petitioners, yet the Martial Law Authorities can make this order completely ineffective by either promul gating a Martial Law Regulation or issuing an order there-under. HABIBULLAH KHAN, J.‑I do not feel called upon to express my view on the matters, which have been so exhaustively dealt with by my learned brother, but which are not directly involved in the present case, and would prefer to preserve my opinion for a appropriate occasion when they are raised. So far as the question of jurisdiction is concerned; I fully agree with my learned brother, that all the ordinary criminal Courts] while trying a case, whether under the ordinary law or any Martial Law Regulation or Order, are competent to entertain a bail appli cation. Similarly the Sessions Court and the High Court have also in such cases jurisdiction to pass an order on a bail application under the Criminal Procedure Code. It is obvious that when an ordinary Court is seized of the trial of a case, it has to function under the Criminal Procedure Code, and as such, has to follow the provisions of the Code in respect of bail application. The petitioner would be well‑advised to approach the Court of first instance in the matter of bail, which will be considered or merits in the normal course. We were not disposed to head the learned counsel for the petitioners on the merits of the bail application, for the question which we had to consider was one of jurisdiction of the ordinary criminal Courts in the matter of bail. A. H. Order accordingly.