P L D 1980 Peshawar 177 (PLP)

MUHAMMAD SARDAR KHAN, J.-Petitioner had joined Police service as a Constable somewhere in 1944. In the course of time he rose to the rank of Assistant Sub-Inspector. He had by then put in nearly 27 years and 9 months service during which he had won, it is claimed, as many as 81 commendation certificates and some cash rewards as well. While he was posted as A. S. I. in Police Station, Havelian an ex-Army Sepoy, Mohammad Sattar, No. 2454337, accused in a case of kidnapping under section 363; 365/371, P. P. C. and detained for interrogation in the Police lock-up, died in circumstances, indicating torture at the hands of Police, on the night between 15/16 July, 1968. After some preliminary inquiry a case was registered at P. S. Havelian at the instance of Circle Inspector Mr. Attaullah on 5-3-1969 under section 302, P. P. C. which was later altered to section 30/34, P. P. C. Petitioner happened to be one of the accused in that case. It is said that while the case was pending in the Court of Magistrate Ist Class, Abbottabad, it was transferred allegedly on the order of the then District Magistrate, Abbottabad, to the Special Military Court for trial. The accused, 6 in number including the petitioner, were charge-sheeted on 29-10-1971 and tried by Special Military Court. The petitioner was found guilty alongwith one F. C. Said Rasool. He was convicted- accordingly on 9-3-1972 and sentenced to 4 years' R. 1 He was undergoing sentence in the District Jail, Abbottabad when on a mercy petition by him, his unexpired sentence was remitted by the then Governor N.-W. F. P., by his order dated 5-10-1973 and he was released. Thereafter he made several representations, to the D. I.-G., I-G. Police, Minister for Law, Interior Minister, the Chief Minister and Governor of N.-W. F. P. from time to time, mainly for his re-instatement on the analogy of some other police officials, who had been convicted in some other cases and had undergone their sentences but were nevertheless re-instated in their respective jobs. However, his representation, did not have desired result. Ultimately he filed a Writ Petition No. 164 of 1976 in this Court on i8-6-1976 "for an appropriate order (i) declaring that the petitioner's conviction on 9-3-1972 by the Special Military Court, Ahbottabad under section 304/34, P. P. C. and his consequent imprisonment were illegal, void and of on adverse effect against the petitioner's right to continue in his Police Service as Sub-Inspector and (ii) enjoining the respondents to re-instate the petitioner in service and restore to him all his rights and emoluments which have been denied to him in consequence of his aforementioned conviction and sentence". The State, Inspector-General of Police, Peshawar and Deputy Inspector-General of Police, Peshawar were arrayed respondents to the said petition. The writ petition was however, allowed to be withdrawn by the petitioner on the ground that there were some legal flaws", when it came up for hearing in motion before a learned Division Bench of this Court on 17-2-1977 with permission "to submit a fresh and proper writ petition, if so advised". It was after this that the present writ petition was filed by the petitioner on 29-3-1977. In this the relief claimed in the earlier writ petition has been limited to "declaring that the order of Special Military Court at Abbottabad dated 9-3-1972 convicting the petitioner and sentencing him to four years' R. I. under section 304/34, P. P.C. was without jurisdiction, illegal and void". The number of the respondents has also been reduced, "State" being the only respondent impleaded now. We have heard the learned counsel for the petitioner. There can perhaps be no dispute with the proposition, founded as it is on the judgments in State v. Ziaur Rehman and others (P L D 1973 S C 49) and Syed Kazim Raza v. Government of Sind and 2 others (P L D 1976 Kar. 119) that after the power of transfer had been taken away by M. L. R. 45 as reconstituted, cases pending before regular Courts could not have been transferred to Military Court therefore, the very transfer and the consequent trial by -a Special Military Court would be invalid. But before we are pursuaded to examine this question in so far as petitioner's case is concerned, petitioner will have to satisfy us on certain other matters, which appear to be no less formidable. For petitioner has sought from this Court only a declaratory relief that order of the Special Military Court dated 9-3-1972 is illegal and without jurisdiction. Admittedly, therefore, this order was impugned by the petitioner for the first time in constitutional jurisdiction on 18-6-1976 i. e. after more than 4 years and so far as the present writ petition is concerned which was filed on 29-3-1977, it was nearly four years and 9 months thereafter. We would, however reckon the period upto the date of the filing of the first writ petition only and this, as stated above, comes to about four years. It is true that petitioner has been making, during this period, repeated representations to the various authorities but then it cannot be disputed, indeed that no effort has been made to that affect, these representations were not provided for under any law. And these representations were aimed not at obtaining reversal of the order of the Special Military Court by which petitioner was convicted and consequently dismissed form service but more at seeking re-instatement on the anology of cases of those Police Officials who had also been convicted in other cases and had even undergone their sentences yet they were re-instated, treating the period of absence from duty as leave without pay. This seems to be the tenor of almost all his applications to the various authorities copies of which are placed on record of earlier Writ Petition No. 164 of 1976 as Annexures `E', `F', `J', 'K', `L', `M', `N' and `O' to which reference has also been made in para. 11 of the present writ petition Annexures `G' and `H' are, however, not his representations but they are copies of a Memo. No. 7048/E-LI, dated 30-4-1974 from L-G. Police N.-W. F. P. to the D. I.-G. and Police Rules, 16.2, in Chapter XVI of the N.-W. F. P. Police Rules, 1937 Volume 11, respectively. In none of these applications petitioner has made a request for holding the order of the Special Military Court, dated 9-3-1972 to be without lawful authority' and jurisdiction. This plea has been taken and relief there against in terms has been sought only in the two constitutional petitions before this Court. Therefore time spent in presenting those representations not provided in law and not directed towards this end cannot be condoned on the basis of this explanation alone. It will be seen that even the request for re-instatement on the anology of other cases referred to by the petitioner in his applications was refused, according to Annexure `O' placed on record of the earlier writ petition, on 31-3-1975. Even after this petitioner waited for more than one year in invoking jurisdiction of this Court under Article 199 of the Constitution. There is yet another aspect of this matter. Petitioner wants us to hold the order of the Special Military Court dated 9-3-1972 to be without lawful authority on the basis of the judgment in State v. Ziaur Rehman. Now this case alongwith connected criminal appeals was decided by their Lordships of the Supreme Court on 8-1-1973. And before that Asma Jilani's case had already come in the field. And Malik Mir Hassan v. State (P L D 1969 Lah. 786) decided on 30thJune, 1969 was even earlier than the Special Military Court had taken cognizance of the case against petitioner and others. Therefore from whatever angle we judge his case, the conclusion that there is inordinate delay on the part of the petitioner in filing this petition becomes more and more irresistible. . Since we have held that the writ petition suffers from laches we have not gone into other questions as to whether, in the circumstances of this case, a declaration `simpliciter' would be called for and "State" as such has been properly impleaded as if it were a criminal appeal. These questions, in view of the decision we have proposed to make would be of academic interest only. The writ petition is, therefore, dismissed on the question of laches only. Since we have had neither the privilege of comments from the "State" nor record of proceedings of the Special Military Court, if any, we leave the parties to bear their own costs. M. Y. M.???????????????????????????????????????????????????????????????????????????????? ?????????? Petition dismissed.