1993 PLP r (PCRLJ)

And whereas, the said Mr. Abid, son of Muhammad Amin is not traceable. Now, therefore, in exercise of the powers conferred on me by MLR 40, I, Major-General MA. Majid P.S.C. SMLA Sector 3 Zone `C' hereby order the said Mr. Abid son of Muhammad Amin to report to HWQ. Martial Law, Sector 3 or surrender himself to the nearest Police Station or MLHQ by 23rd October 1971. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be tried in absentia for the contravention of the said Regulation. MA. Majid Major-General People's House, Sub-Martial Law Administrator, Lahore. Sector

3. The 9 October, 1971

2. Sub-Martial Law Administrator. Sector 3 NOTIFICATION The 5th November, 1970 No.502/MLA/AG/5C

Whereas Kh. Abdul Haleem son of Kh. Abdul Rahim resident of 29-D Gulberg, Lahore is required by H.Q. Martial Law Sector 3, Lahore for the purpose of investigation of the case Enquiry Na267/7 under M.L.R.23 and

24. And whereas the said Kh. Abdul Halim son of Kh. Abdul Rahim is not traceable. Now, therefore; in exercise of the powers conferred on me by M.L.R.40, I Major-General AA.K. Niazi, S.M.LA. Sector 3, Zone `C' hereby order the said Kh. Abdul Halim son of Kh. Abdul Rahim to report to H.Q. Martial Law Sector 3, Lahore or surrender himself to the nearest police station or M.L.H.Q. within seven days after issue of this notification. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be tried in absentia for the contravention of the said Regulation. AA. K. Niazi Major-General Sub-Martial Law Administrator Sector 3

3. H.Q. Sub-Martial Law Administrator, Sector 3, Zone `C' NOTIFICATION The 12th October 1971 No. 502/MLA/AG/5-C/6305

Whereas Mr. Abdul Halim son of Abdul Rahim, resident of 4-C-1, Gulberg III, Lahore is required by H.Q. Sub-Martial Law, Sector 3, Lahore, for the purpose of investigation of the case F.I.R. No.220, dated 11th June, 1971 under MLR 23 and 16(a) P.S. North Cantt., Lahore. And, whereas, the said Mr. Abdul Halim son of Abdul Rahim is not traceable. Now, therefore, in exercise of the powers conferred on me by MLR 40, I, Major-General MA. Majid P.S.C. SMLA Sector 3 Zone `C' hereby order the said Mr. Abdul Halim, son of Abdul Rahim, to report to HQ Martial Law, Sector 3 or surrender himself to the nearest police station or MLHQ by 23rd October, 1971. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be tried in absentia for the contravention of the said Regulation. People's House, Lahore M.I.. Karim The 9th October, 1971 Major-General Sub-Martial Law Administrator, Sector

3. As is established by the perusal of the above Notifications, the petitioners are only ordered to surrender at the nearest police station or M..H.Q. by the dates specified therein in their respective cases; and that the requirement of their being declared absconders, as made mandatory by the provisions of sub-paragraph (i) of paragraph 1(a) of the Regulation No.40, has not been complied with. Therefore, sub-paragraph (ii) of paragraph 1(a) could not be invoked in the instant case as it specifically states that a direction to appear before such- authority within such period as specified in the Notifications can only be in respect of such person/persons declared to be E absconder. Furthermore, there is nothing on the record to prove that before awarding the punishment for 14 years' R.I. to the petitioners, the provisions of paragraph 1(b) had been complied with i.e. an opportunity had been afforded to them to show reasonable cause to the satisfaction of such authority for their failure to put in appearance; thus failing to fulfil the two condition precedents, before imposing the said punishment. In this respect, it may further be pointed out that even in the parawise comments on behalf of the respondents it has not been claimed that the petitioners were declared absconder or that they had been provided an opportunity to show cause for their failure to put in appearance as directed, before their convictions and sentences, as stated above. In this respect, strength is sought from the following authorities:-- (1) Nazir Ahmad v. King-Emperor A I R 1936 PC 253(2), wherein it was held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden; (2) Bishundayal Mahton and others v. Emperor A I R 1943 Pat. 366, wherein it was held that first it should be established that a person was absconding before issuing his warrants under the provisions of sections 87 and 88 of Cr.P.C.; (3) Mansab Ali v. Amir and 3 others P L D 1971 SC 124, wherein it was held that it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction; (4) Rashid Ahmad v. The State P L D 1972 SC 271, wherein it was held that if a mandatory condition for the exercise of jurisdiction before a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. (5) Iftikhari Ahmad Shaikh v. Ch. Muhammad Din and others P L D 1990 Ldh. 461, wherein it was held that where the act or thing required by the Statute is a condition precedent to the jurisdiction of a Tribunal, compliance cannot be dispensed with and if it be impossible the jurisdiction fails. The Court will, not be competent to dispense with what the legislature has made indispensable foundation of its jurisdiction, by reproducing the aforestated principle from page 328 of the Maxwell on Interpretation of Statutes; and (6) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar P L D 1989 SC 26, wherein it was laid down that the acts, actions or proceedings suffering from excess or lack of jurisdiction or were coram non judice or mala fide (be it malice in fact or in law) could not be treated in accordance with law.

6. The pursuant to the reasons above, all the proceedings undertaken in pursuance to the notifications referred to above against the petitioners, including their convictions and sentences of 14 years' R.I. by the Martial Law Authority, purporting to be under the provisions of Martial Law Regulation 40 stated above, are hereby declared to be without jurisdiction, hence coram non judice and as such void and without lawful authority. Accordingly, the present Writ Petitions Nos.964, 1859 and 2374 all of 1974, are hereby allowed with no order as to costs. N.H.Q./A-234/L Writ petitions allowed.