P L D 1979 Quetta 188 (PLP)

(iii) The Martial Law Administrator before making the transfer order, has to comply with the conditions laid down in paragraph 3(l) of M. L. O. 37 which has not been done. As regard the first contention made by the learned counsel for the petitioner, Martial Law Order No. 4 as it originally stood, empowered the Military Court to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under any other law. It further provided that a Martial Law Administrator may within the Zone concerned, direct that any case taken cognizance of after July 5th 1977 and is pending before a Criminal Court, be transferred to a Special Court or as the case may be to a Summary Military Court. This provision of Martial Law Order was substituted by M. L. O. 37 on 19‑2‑1978. The relevant provision for our present purpose is paragraph 3 ; which contemplates that the Martial Law Administrator of a Zone if he is of the opinion that it is necessary for maintenance of law and order or public tranquillity or for expeditious .~ disposal of any case in public interest, may, within the Zone concerned, order that any case pending before any ordinary Criminal Court, be transferred to a Military Court and dealt with. Thus whereas in paragraph No. 3 of Martial Law Order No. 4 the words "Criminal Court" was mentioned; in Martial Law Order No. 37, it has been substituted by the words "Ordinary Criminal Court". It is urged by the learned counsel for the petitioner that a tribunal constituted under the Ordinance is not an Ordinary Criminal Court. Classes of Criminal Courts have been mentioned in section 6 of Cr. P. C. Though the term "Criminal Court" has not been defined any where, but in general connotation it means a Court as mentioned in the Code of Criminal Procedure. According to Shorter Oxford Dictionary the word "ordinary" means, conformable to order or rule; regular; orderly; methodical, of a Judge having regular jurisdiction, not deputed ; regular, normal, customary, usual. There is no doubt that a Tribunal under the Ordinance cannot be made equal with the Criminal Courts constituted under the Code of Criminal Procedure. The procedure and the manner o 4B the two forums are quite distinct. All the provisions of Code of Criminal Procedure and Evidence Act are not applicable for a trial before the tribunal. The forum of appeal in the Ordinance is also different. A case under that Ordinance is to be tried by the Tribunal and its recommendation would be submitted to the Deputy Commissioner. The entire scheme of the Ordinance II of 1968 is contrary to the normal procedure and functions of the Criminal Courts in the country. The learned Assistant Advocate‑General has referred to Muhammad Ashfaq v. Martial Law Administrator, Zone C, Karachi and others (P L D 1979 Kar. 465) in support of his contention that ordinary criminal Court has been used in contradistinction to civil Court. No doubt this authority supports the contention of the Assistant Advocate‑General but with due respect we have not pursuaded ourselves to agree with this interpretation; because the Martial Law Order 4 was amended from time to tune. M. L. O. 37 was issued which substituted paragraphs (2) and (3) of M. L. O. 4, then M. L. O. 54 was issued, which contemplates that an offences which is triable exclusively by a Special Court, Special Judge or any other type of tribunal such offence shall, in case in which the Chief Martial Law Administrator so directs, be triable by a Military Court. This Martial Law Order was issued on 5th September 1978. The Chief Martial Law Administrator made directions under M. L. O. 54 giving a list of offences which shall be triable by the Military Court. On 21‑11‑1978 Martial Law Order No. 61 was issued which reconstituted M. L. O. 54 and according to this Order an offence which is triable exclusively by a Special Court, Special Judge or any other type of tribunal, such offence shall in case in which the Chief Martial Law Administrator or, as the case may be, a Martial Law Administrator so directs, be tried by a Military Court and if such ca,e is pending in a Special Court, Tribunal or before a Special Judge be transferred to a Military Court under sub‑paragraph (l) of paragraph 3 of Martial Law Order No.

4. The Martial Law Order 4 is amended from time to time so as to enlarge the scope of Martial Law Courts in trying the cases after withdrawing them from Courts and Tribunals. It is thus clear that M. L. O. No. 4 as it originally stood did not empower the Martial Law Administrator to withdraw the cases from the tribunal under the Ordinance. The tribunal is not a Criminal Court as envisaged in section 6 of Code of Criminal Procedure. The Martial Law Order No. 43 was issued by Martial Law Administrator Zone 'D' on 27‑8‑1978 and the Deputy Martial Law Administrator referred this case for trial to the said Court on 31‑8‑1978. As stated earlier the cognizance by the Deputy Commissioner had been taken on 6‑5‑1978. The Martial Law Order No. 37 was issued on 19‑2‑1978 and this was applied with retrospective effect i.e. 5‑7‑1978 but the M. L. O. No. 54 and No. 61 which were issued subsequently do not say that these orders have retrospective operation. When the case was withdrawn from the tribunal on 31‑8‑1978, the Martial Law Orders Nos. 54 and 61 had not been promulgated. Therefore the present case could not be withdrawn to the Military Court, as there was p no provision for the same. Even if we admit that M. L. R. No. 37 was applicable to the present ca s there is a condition precedent that before the case is withdrawn from a ordinary criminal Court, the Martial Law Administrator has to satisfy himself that it is necessary for the maintenance of law and order o public interest, that the case may be transferred to a Military Court In the present case no order of the Martial Law Administrator has been filed and to that aspect of the matter we would discuss separately. The order produced by the respondent in this case reads as under :‑ "Since M. L. A. Zone 'D' have now constituted Special Military Court No. 4 for Mekran Division vide M. L. O. 43 issued under H. Q. M. L. A. Ire. No. O114/3/A, dated 27th August 1978, 1 refer the subject case to the said Court for early disposal. Col. Dated : 3I‑8‑1978 D. M. L. A. 4, Mekran Division." In this order no ground has been mentioned for the transfer of the case from an "Ordinary Court". The Martial Law Administrator has not been invested with unfettered powers to withdraw the cases from the ordinary Courts. Certain conditions have been laid down before making the order of transfer. But in this case there is no mention of any ground as required by paragraph 3 of M. L. O. 37, therefore, in our opinion the transfer of the case from the tribunal is not legal. We are supported in this view by the case of Haji Abdurashid v. The State and others (P L D 1979 Lab. 274). The relevant observation have been made in paras. 5 and 7 of the judgment para. 7 reads as under :‑ "(7) Application of M. L. O. 37 for transfer of criminal cases pending in the Ordinary Courts to Military Courts is not a mechanical process as envisaged by the M. L. O. Certain pre‑requisites have been laid down therein and in the absence thereof no case can be transferred to Military Court for trial. The power given under M. L. O. 37 to the Martial Law Administrators has to be exercised with due care. A case already pending before an Ordinary Court cannot be transferred without application of mind to the given circumstances. All the pros and cons of the case in context of the aforesaid prerequisites have to be weighed before passing an order for transfer. It is admitted that so far as some of the penal offences are concerned concurrent jurisdiction vests in the ordinary Courts as well as the Military Courts. The ordinary Courts have been allowed to perform their functions. It means that ordinarily a case registered under the provisions of Penal Code should be tried by the criminal Court except in exceptional circumstances as mentioned in M. L. O.

37. Sub‑pares 2(1) and (2), (A) of M. L. O. 37 confer powers on Military Courts to try and punish any person for an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force, upon receiving a complaint or facts, upon a report in writing of such facts made by any police officer or any officer of the Armed Forces and upon information received from any person other than a Police Officer or an officer of the Armed Forces. This provision should not be read in isolation of the provision as contained in para. 3(1) of M. L. O.

37. Apart from the cases registered under M. L. Rs. or M. L. Os. other cases cannot be tried or transferred to a Military Court unless the prerequisites as mentioned above laid down in para. 3(1) of M. L. O. 37 are fulfilled, otherwise working of ordinary civil Courts would come to stand still which is nut warranted by Law." Mr. Pir Zada the learned counsel for the petitioner has also relied on an unreported judgment of Karachi bench in C. P. No. D‑1615 of 1978. The same view has been taken in this authority as propounded in the Lahore case Haji Abdurashid v. The State. There is also force in the contention raised by the learned counsel for the petitioner that the order of transfer is bad in law as it was made by a person who was not competent to make ail order of transfer. The transfer order has been made by the D. M. L. A. ; whereas under Martial Law" Order No. 4 as amended by M. L. O. 37, the transfer order has to be made by the Martial Law Administrator of the Zone concerned. In view of this patent illegality the order is not sustainable and cannot be acted upon. There is another illegality committed in these proceedings. It is contended that apart from Penal Code offences the accused are also to be tried under Martial Law Regulation M. L. R. 8 and M. L. O. 2 of Zone D. The detenus Nos. 1 to 3 have been tried by the Summary Military Court under M. L. R. 8 and M. L. O. 2 of Zone D and they were convicted by the said Court. The other accused persons were not tried either alongwith them or separately under the said Martial Law offences. The allegations against all the accused are the same and the occurrence is also the same, but apart from Dad Muhammad, Hussain and Hasil it was not considered by the authorities to charge them for the said offences. The 3 accused have already been convicted and it would be a double jeopardy against these persons to face trial on the same charge once against. Article 13 of the Constitution also lays down that no person shall be prosecuted or punished for the same offence more than once. This Court in Muhammad Niaz v. Martial Law Administrator, Zone D Quetta and others (P L D 1979 Quetta 179) has held that provisions of the Criminal Law Amendment Act are of overriding nature; that the provisions of M. L. O. 4 as amended by M. L. O. 37, have to give way to the provisions of the Act; and that trial of citizens for offence other than the offences created by Martial Law Regulation or Martial Law Orders, can not take place before Military Courts unless such offences are committed while resisting the Martial Law itself. For the reasons discussed above, we accept the petition and, declare that order of transfer from the Tribunal to the Special Military Court is without lawful authority and is of no legal effect. The case would proceed before the tribunal. The learned counsel for the petitioner has also pressed for bail of the accused and relied on the judgment of the Supreme Court in Ghulam Mujta Khan v. Martial Law Administrator Zone Wand others (Civil Petition for Special Leave to Appeal No. Q‑8 of 1978) wherein while granting the special leave for appeal, the petitioner was admitted to bail. But as we have finally disposed of the petition and the proper forum would take cognizanance of the case, it is for the tribunal to decide the question of bail and therefore, we reject this prayer. No order as to costs. Hussain son of Murad, Hasil son of Murad and Dad Muhammad son of Adina have been convicted by the Summary Military Court under Martial Law Regulation No. 8 and M. L. O. 2 Zone D' and sentenced to suffer R.1. for a period of one year. The petitioners have challenged their conviction. In para. 14 of the petition it has been specifically stated by the petitioner that the accused have been illegally convicted as neither the evidence was recorded before them nor they were allowed to cross‑examine the witnesses nor were they allowed to lead their defence nor they were informed as to what charges were against them. The respondents Nos. I and 2 have offered no comments with regard to these allegations made by the petitioner. It is also interesting to note that in fact the respondents did not offer any comments for paras. 1 to 5 and 7 to 14 of the petition and they agreed to the facts mentioned in para. 6 regarding the actual incident at Marghoti. Thus the respondents have not denied the allegation made by the petitioner in the petition. However they have denied the grounds on which this petition has been challenged. According to them the order of the Court was in order and according to the procedure laid down. There was strong evidence against the accused as they were seen by so many people on the way. The trial has been conducted according to the procedure laid down by the Summary Military Court. The learned counsel for the petitioner has raised the first objection that the Court was not properly convened by the Martial Law Administrator and even if there was any trial it was bad in law. Paragraph 6 of the M. L. O. 4 provides that Martial Law Administrator may by general or special order empower any of the officers of the Armed Forces to hold the Summary Military Court in the Zone concerned for the trial of offences. The Martial Law Administrator Zone D' by his order dated 12‑6‑1978 empowered Major Mir Qaiser Yakoob as President Summary Military Court w.e.f. 11‑6‑1978. M. L. O. 37 enjoins the Military Court, the following mode for taking cognizance :‑ (a) Upon receiving a complaint of facts which constitute such offence ; (b) Upon a report in writing of such facts made by any police officer or any officer of the Armed Forces ; and (c) Upon information received from any person other than a police officer or and officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed. In the present case the record does not show that the cognizance of the case under M. L. R. 8 was taken in accordance with any of the modes provided in M. L. O. as amended by M. L. O.

37. There were only two ways of exercising jurisdiction by a Military Court. Either 'under M. L. O. 37, or by way of transfer from a Court. The learned counsel for the petitioner submitted that there is no order of transfer made by the Martial Law Administrator. The learned Assistant Advocate‑General at the time of hearing of this petition conceded that there is no order of transfer made by the Martial Law Administrator. However subsequently he moved an application alongwith a copy of an order to show that the case was transferred to the Military Court by an order of Martial Law Administrator. This copy reads as under "Confidential Headquarters Martial Law Administrator, Zone, 'D', Baluchistan, Quetta. No. 0301/2/L (Legal Branch) 08 July 1978. To H. Q. D. M. L. A. Sector

4. Sub : Trlal ef the case State v. Fateh Muhammad etc. Your Lt. No. D. M. L. A. 4/l/V/139/PA dated 24 June 1978 and No. D. M. L. A. 4/I/V/175/PA dated 03 July 1978 refer. (1) The subject case may be tried by the Summary Military Court for offences under sections 3/6 Explosive Substances Act R/W M. L. R. 8 and M. L. O. 2 Zone 'D'. "1 he charge‑sheet for the trial may also be framed under the above cited M. L. O./M. L. R. (2) At the trial.‑‑The splinters/pieces of the grenade recovered from the site (mosque) be produced before the Court. (3) The proceedings duly Completed be submitted to this Hqs. by 25th July 1978 the latest. (4) The subject case file/connected papers received from your letters under reference are returned herewith. (Sd.) Lt.‑Col. for Martial Law Administrator (Fazal Hussain)." First of all this is not an order passed by the Martial Law Administrator; but it has been passed by some Lt. Col. for Martial Law Administrator. The copy is also not a certified copy, therefore, this copy cannot beg considered as a valid order of transfer. Additionally the accused were convicted under Martial Law offence but this copy shows that they were also accused for an offence under section 3/6 of the Explosive Substances Act. If the case under Explosive Substances Act was registered against the accused, then it could only be transferred, if a Martial Law Administrator of the Zone concerned passed it in accordance with paragraph 3(1) of M. L. O.

37. There is only one record of the case in both the petitions. There is nothing to indicate that any challan under the Explosive Substances Act has been filed in the competent Court. If there was any case pending before the Court concerned and that case had to be withdrawn, it could be withdrawn in accordance with the conditions mentioned in paragraph 3(1) of M. L. O. 37 which are lacking. In a Constitutional Petition, the Court is not to sit as a Court of appeal. If. a tribunal is competent to decide the matters it may decide rightly or wrongly. The appraisal of evidence is not the function of this Court in its extraordinary jurisdiction; but the position is different where it has been established that it is a case of no evidence. In that case this Court K would naturally interfere in the matter for the simple reason that a Court or tribunal who has decided the matter, took cognizance of the case having no evidence. In a case where there is no evidence then the Court or Tribunal had no jurisdiction over the subject‑matter of the case. In the light of the above observations we would examine the facts of the present case. Separate trials have been conducted against each accused. ‑ But the evidence recorded in all the 3 cases is the same and stereotyped. There is not a difference of even a comma or full‑stop. Apart from it the evidence adduced at the trial must conform to the charge‑sheet. According to the charge-sheet, the accused was found with illegal possession of arms and ammunition on the night between 26/27 March 1978 at Margbuti. But P. W. Abdul Ghani has stated that he saw 8 men armed with rifles going towards village Marghuti about 6 hours on 26th March 1978. There is no evidence that accused persons were seen at Marghuti village on the night between 26/27 March 1978. Then P. W. Abdul Ghani stated that Dad Muhammad, Hussain and Hasil were amongst those persons. But P. W. 2 had only seen Dad Muhammad and substituted Atta Muhammad and Allah Dad by Ismail and Wali Muhammad. P. W. 8 Lal Bakhsh and Muhammad Azim have not stated anything against the 3 convicts. Abdul Ghani has stated that he had seen the accused armed with rifles but no riffle has been secured from any of the accused so as to attract the provisions of Martial Law Regulation 8 and M. L. O. 2 (Zone D). Out of 4 persons., 2, have not stated anything against accused. P. W. 1 has given the names of 3 accused but no incriminating part bad been ascribed to them. P. W. 1 had seen them going towards Marghuti and P. W. 2 on 27‑3‑1978 had seen them going towards Buleda while the witness was going towards Marghuti. The accused have stated that no opportunity of cross‑examination was given to them. This allegation appears to be correct because the statements of the witnesses were typed out but notes have been written in handwriting, that the accused declined to cross‑examine the witnesses. Moreover the ink used in the case of Hasil regarding P. Ws. 1 and 2 is different than the ink used in other 2 cases. Apart from it, the correction of the deposition has been made with a different ink. The word 'Mosque' has been corrected in each disposition with the same ink but different ink has been used in recording the note at the foot of the deposition. So much so, in some places handwriting of a different person appears in a different ink. In these circumstances it would be difficult to rebut the allegations that the record was not prepared at one time. No reason has been given as to why the notes were prepared in the handwriting when the deposition was typed out. There is a little space left after the statement of P. W. 1 and P. W. 3 but the certificate has been written in this small place, one could see with naked eye that it had been written subsequently. We are therefore of the view that there is force in the contention that no opportunity of cross‑examination was given to the accused, otherwise it is difficult to believe that when the accused has stated that he was not present at the place of incident then why they declined to cross- examine the witnesses on this point. The record does not show that the accused were granted any opportunity to produce any defence. The accused Hussain has specifically stated that be would call his defence witnesses but there is nothing on record which would indicate that any witness for accused was examined. There is another illegality in the proceeding. The precise of evidence appears to have not been supplied to the accused and this allegation of the petitioner has not been challenged through any material. The respondents had not contradicted the petitioner by offering no comments to the allegations that neither evidence was recorded in the presence of the accused not they were allowed to lead defence. Even if we ignore the above‑mentioned irregularities, the evidence adduced at the trial does not constitute the offence for which they were charged. In the absence of incriminating articles it could not be possible to hold by a prudent man that the accused were going armed with rifles. In the result we also accept this petition and hold that the convictions of the accused are bad in law and respondent No. 1 has no jurisdiction to proceed against the accused on the basis of no evidence. Accordingly the conviction recorded by the respondents Nos. 1 and 2 against the accused are without lawful authority and of no legal effect. No order as to costs. MIR KHUDA BAKIISH MARRI, C. J.‑I agree. M. A. K. Petitions accepted.