P L D 1979 Karachi 814 (PLP)

(ii) that the order of transfer of the case was violative of the provisions of Martial Law Orders No. 37 and No. 4, (iii) that the order of transfer of the case was arbitrary as the reasons in support therefor were not substantial, and (iv) that even if the power to transfer a case is conceded, such powers can be exercised only by the Chief Martial Law Administrator and not by the Zonal Martial Law Administrator.

5. Initially we propose to consider the question in regard to the power vesting in the Martial Law Administrator to transfer such a case to a Military Court which was pending before the Tribunal constituted for trial of offences under Foreign Exchange Regulation Act. In such regard reference may initially be made to paragraph 3 of Martial Law Order No. 4 issued by the Chief Martial Law Administrator on 5‑7‑1977. This paragraph was subsequently substituted by Martial Law Order No. 37 issued by the Chief Martial Law Administrator on 19th June, 1978. Paragraph 3 as it now stands and stood on 30‑5‑1979, when the order of transfer was passed by the Zonal Martial Law Administrator, reads as follows :‑ "3.‑(1) A 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 an ordinary criminal Court be transferred to a Military Court and dealt with as provided for in sub‑paragraph (1) of paragraph 2 and on the making of an order under this paragraph such case shall stand so transferred forthwith; Provided that the Military Court to which a case is transferred under this paragraph, shall not be bound to recall and rehear any witness who has already given any evidence and may act on the evidence given or produced before the criminal Court from which such case is so transferred. (2) The provisions of this paragraph shall be in addition to and not in derogation of the provisions of paragraph 2." It seems a controversy arose whether Martial Law Order No. 4 (as amended by Martial Law Order No. 37) also achieved the object of transfer of a case which may be pending before a Special Court or Special Judge or any other ‑type of tribunal. For the purposes of removing such difficulty the Chief Martial Law Administrator on 10‑9‑1978 issued another Martial Law Order bearing No. 54 .which reads as follows :‑ "Notwithstanding any provision contained in any law for the time being in force by virtue of which an offence 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." Since Martial Law Order No. 54 provided for a power to transfer a case pending before a Special Judge or Special Court or any other Tribunal only in the Chief Martial Law Administrator, the said Martial Law Order was re‑constituted by Martial Law Order No. 61 issued by the Chief Martial Law Administrator on 23‑11‑1978. Such re‑constituted Martial Law Order reads as follows;

"Notwithstanding anything contained in any law for the time being in force by virtue of which an offence 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 direct, be tried by a Military Court and if such case is pending in a Special Court, Tribunal or before a Special Judge be transferred in a Military Court under sub‑paragraph (1) of paragraph 3 of Martial Law Order No. 4."

6. On a perusal of the four Martial Law Orders, namely, Martial Law Order No. 4, Martial Law Order No. 37, Martial Law Order No. 54, and Martial Law Order No. 61 it would appear that as on 23‑11‑1978 the Chief Martial Law Administrator or, as the case may be, the Martial Law Administrator may direct any case which may be pending in a Special Court or before a Special Judge or Tribunal to be tried by a Military Court and on such direction being issued the case would stand' transferred to a Military Court under sub‑paragraph (1) of paragraph 3 of Martial Law Order No.

4. A It would thus seem that no doubt can lurk in coming to the conclusion that a Martial Law Administrator has the power to transfer a case of an offence triable exclusively by a Special Court or a Special Judge or a Tribunal for trial by Military Court.

7. In this context the next contention of Mr. Rashid Akhund is that Martial Law Order No. 4 was a general law whereas Foreign Exchange Regulation Act was special law, following special legislation, and conferring exclusive jurisdiction on the Tribunals to try offences under the said Act. Reliance was placed on the case‑of Muhammad Niaz v. Martial Law Administrator (P L D 1979 Quetta 179) decided by a Division Bench of the Baluchistan High Court. Their Lordships adverted to section 5 of the Code of Criminal Procedure. A view was taken that such special Laws would override Martial Law Orders Nos. 4 and 37 so as to bar the trial of a person on charges punishable under such special law by a Military Court. The case from Baluchistan related to transfer of a case from a Special Judge constituted under the Criminal Law Amendment Act, 1958, to a Military Court. An appeal was filed in Supreme Court. Mr. Rashid Akhund was reminded of the appeal that had been filed before the Supreme Court namely, Martial Law Administrator v. Muhammad Niaz (P L D 1979 S C 921). Mr. Rashid Akhund stated that this appeal had become infructuous and was disposed of by the Supreme Court as such. On a reading of the judgment of the Supreme Court it is clear that the order transferring that case to the Military Court having been recalled the appeal had become infructuous. However, their Lordships of the Supreme Court did in such respect also observe as follows :‑ "In the circumstances no useful purpose would be served by embarking upon an academic exercise to consider the, propositions of law formula ted in the leave granting order, except to observe that the propositions and observations made by the High Court of Baluchistan in the judg ment under appeal appear to be much too wide and prima facie open to exception, and would require careful examination in a proper case. As already observed by this Court in its interim order dated the 17th of December, 1978, the impugned Judgment should be read as confined to this individual case alone." No doubt, the above‑quoted passage from the judgment of the Supreme Court is in the nature of obiter but even such expressions are entitled to a very high respect and we have no hesitation in saying that the principles pronounced by the Baluchistan High Court did not find favour with their Lordships of the Supreme Court. .

8. The next point that has been urged by the learned Advocate for the petitioner was that the case being one under Foreign Exchange Regulation Act, a federal statute, a Zonal Martial Law Administrator could not transfer the same. He has particularly laid stress on the words "or, as the case may be," appearing in Martial Law Order No. 61 to canvass that these words devising two functionaries; the Chief Martial Law Administrator and the Martial Law Administrator, would show that power of transfer of a case arising out of infringement of a federal statute vested only in the Chief Martial Law Administrator and conversely the power to transfer a case arising out of infringement of a Provincial statute would vest only in a Martial Law Administrator of the Zone. It must be stated that the initial power of transfer had been conferred on a Martial Law Administrator of a Zone by virtue of paragraph (3) of Martial Law Order No.

4. This para graph clearly states that a Zonal Martial Law Administrator could transfer a case to a Military Court "within the Zone concerned". Again under paragraph 3 of Martial Law Order No. 37 the same words namely "within the Zone concerned" were repeated. Martial Law Order No. 61 states that the Chief Martial Law Administrator and even a Martial Law Administrator C may transfer a case from a Special Court or Tribunal or a Special Judge to a Military Court under sub‑paragraph (1) of paragraph 3 of M. L. O. No. 4 which provision clearly gives a power to a Martial Law Administrator of a Zone to transfer a case within the Zone concerned. The words used are broad and embrace all manner of cases and it would be idle to import the concept of division of powers between the Federal and Provincial functionaries in this matter.

9. In the matter of division of powers, Mr. Rashid Akhund has referred us to the provisions of Articles 129 and 137 of the Constitution. Article 129 provides for executive authority of a Province being exercised by the Provincial Government while Article 137 provides the ambit of exercise of executive authority of the province extending only to the matters with respect to which a Provincial Assembly has power to make laws. On such premises it is urged that the special statute under which the petitioner was prosecuted being beyond the scope of legislative powers of the province & Zonal Martial Law Administrator could not exercise the power to transfer a case arising out of a statute, the legislative competence whereof vested only in the Federal Legislature. In that context Article 146 of the Constitution deserves consideration. Clause (2) of the said Article reads as follows :‑ "An act of Parliament may, notwithstanding that it relates to a matter with respect to which a Provincial Assembly has no power to make laws, confer powers and impose duties upon a Province or officers and authorities thereof." It is, therefore, clear that the Federal Legislature can by legislation D confer powers upon the Provincial executive in respect of exercise of power in relation to a Federal enactment. There can be no two opinions that the Chief Martial Law Administrator has the legislative power after the imposition of Martial Law, and Martial Law Orders and Martial Law Regulations are examples of exercise of legislative authority. On a reference again to Martial Law Orders Nos. 4, 37, 54 and 61 the position is clear that the Chie Martial Law Administrator has advised the Martial Law Administrator of Zone to transfer cases from any Court or Special Court or from a Special Judge or Tribunal for trial before Military Court.

10. The learned Advocate has next contended that the Legislation by way of Martial Law Orders conferring power on the Chief Martial Law Administrator is not covered by the scope of doctrine of necessity propounded by the Supreme Court in the case of Begum Nusrat Bhutto v. Chief Martial Law Administrator (P L D 1977 S C 657). In that regard reference may only be made to a Full Bench decision of the Baluchistan High Court in the case of Khudiadad v. Deputy Martial Law Administrator (P L D 1978 Quetta 177). The question arose before the Full Bench was of a general nature viz. whether Martial Law Order No. 4 providing for establishment of Military Courts was valid. The Bench answered the question in the affirmative. One of us who had written the Judgment on behalf of the Full Bench of the Baluchistan High Court stated that the Court is not to sit in appeal from the action of the Chief Martial Law Administrator to find out whether all or any actions of his may be covered by unwritten law of necessity and even a caution was given by stating that "it would indeed he perilous for the Courts to embark upon an enquiry which itself from nature will be subject to find out if the necessity existed for the taking of any action. "The establishment of Military Court has by long line of decisions, been held to be either not violative of the Constitution (as it stands today) or is at least permitted in the existing circumstances. On the other band, the Military Court exercised concurrent jurisdiction with the ordinary Courts and it cannot admit of any doubt that it is necessary, and therefore covered by the doctrine of necessity, to establish Courts and also to provide for expeditious disposal of cases.

11. Mr. Rasheed A. Akhund, next challenged the order of transfer on the ground that it violated Martial Law Order No. 4 and Martial Law Order No. 37 in so far as the requisites for transfer of a case, as enunciated in these two Martial Law Orders, had not been fulfilled. Martial Law Order No. 37 had initially provided for the transfer of a case if a Martial Law Administrator, was "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." Paragraph 3(l) of Martial Law Order No. 4 to which reference is made in Martial Law Order 61 also uses the same words. The learned Advocate has contended that the order of the Martial Law Administrator was only a colourable exercise of power and neither circumstances existed justifying the transfer nor does the order state whether the conditions attracting exercise of power did in fact exist. In order to consider this argument it will be profitable to reproduce the order of the Martial Law Administrator. Sind, which reads as follows :‑ "Whereas, the Foreign Exchange Tribunal and Sixth Additional Sessions Judge, Karachi, has taken cognizance on 05 March 1979 of a criminal case filed by State against Mr. Ashiq Ali Bhutto and Mr. Asif Mahmood under section 23 of the Foreign Exchange Regulation Act, 1947 ; And whereas, the aforesaid criminal case is pending before the said Tribunal for trial ; And whereas, after perusal of the relevant record and considering the facts of the case, I am of the opinion that it is necessary for expeditious disposal in the public interest to transfer the same case from the said Foreign Exchange Tribunal to the Military Court, Karachi ; Now, therefore, I, Lieutenant‑General, S. M. Abbasi, Martial Law Administrator Zone `C' in exercise of the powers conferred on me under para. 3 of C. M. L. O. No. 4 as amended by C. M. L. O. No. 37 read with C. M. L. O. No. 61, do hereby direct that the said Criminal Case No. 23/78 pending before the said Foreign Exchange Tribunal and Sixth Additional Sessions Judge, Karachi, be transferred to Military Court, Karachi for trial and disposal according to law"

12. On a perusal of the order of the Martial Law Administrator it would seem that he has examined the record of the case and also considered the facts of this case before forming the opinion that it was necessary for expeditious disposal in the public interest to transfer the said case to the Military Court. Mr. Rasbeed A. Akhund has contended that mere recording of these facts would not be sufficient to fulfil the requirements of Martial Law Order No. 4 and Martial Law Order No.

37. He has canvassed before us that there should be something more than a mere statement in the order of transfer, before a Court of Law can hold the transfer as valid. He has submitted that there was nothing to indicate the basis on which the Martial Law Administrator took action. He also contended that mere subjective satisfac tion of the Martial Law Administrator was not sufficient for taking action in the direction of transfer of a case but in addition there should be material on the basis of which this Court should be satisfied that the order was valid and necessary. The proposition propounded by Mr. Rasheed A. Akhund appears to be very broad. It is no doubt true that if the order is a silent, order, leading the Court only to imagine what may have weighed with the Martial Law Administrator in passing the order, the argument may prevail but when the order does speak and state the reasons which have persuaded the Martial Law Administrator to order transfer, the jurisdiction of this Court would only extend to consideration, whether the order and particularly the reasons for the same are relateable to the objects of the Statute. We, are reminded of various cases on the point of sanction for prosecution. A sanction for prosecution forms the basis for a case and even in such regard the established law is that if the sanctioning authority makes it patent on the face of the sanction that he has applied his mind to the facts of the case and has arrived at a conclusion that prosecution is necessary, the Courts would not go further to examine the legality or correctness of the sanction. While the quantum of satisfaction underlying an order of transfer may not be as heavy as would be required before the grant of sanction, we may even for the purpose of argument equate the two situations namely the existence of material before the transferring authority and the authority granting a sanction for prosecution. Even if such a test is applied to the instant cases it would be clear that the Martial Law Administrator before passing the impugned order had called for the record of the case, had perused the record and had also considered the facts of the case before forming an opinion that it was necessary for expeditious disposal in the public interest to transfer the case to a Military Court. We are unable to see what further subjective) enquiry could be demanded of the Martial Law Administrator before he transfers a case, when the order on the face of it shows that he had examined the record and considered the facts of the case. In our view the order can` not be said to be one which may have been passed without due application of mind. Even on merits it would appear that this case was instituted in the month of May, 1978 but no progress had been made until the month of May, 1979, Mr. Rasheed Akhund has, however, stated that it was the prosecution who had to take the blame for not proceeding with the case but the Martial Law Administrator does not need to examine who was to blame for the delay, if the delay in his opinion defeated public interest.

13. Mr. Rasheed Akhund has next submitted that transfer would be ordered on ground of expeditious disposal only when public interest was involved. In other words his argument is that mere expeditious disposal is not the requirement underlying transfer of a case but public interest should be involved in the case. The words "public interest" are not capable of an exact definition but these words have to be differentiated from the words "public purposes". In the case of Haji Hashmatullah and others v. Karachi Municipal Corporation (1975 S C M R 359) their Lordships of the Supreme Court considered the scope of the words "public interest" vis‑a‑vis provision relating to employees under Municipal Administration Ordinance. Their Lordship expressed that since these words bad not been defined in that Ordinance recourse could be made to general principles. Their Lordships did observe that "this does not mean that the object must be one which should advance the public purposes and all that is required is that it cannot be prejudicial or harmful to the public interest". On a reading of these words it would appear B the words used in the relevant Martial Law Orders have also to be interpreted in their general sense and consistent with the observation of their Lordships of the Supreme Court it would be meaningless to equate this term with "public purpose". There is still another case to which reference may be made with advantage. This is the case of Lt.‑Col. Farzand Ali v. Province of West Pakistan (P L D 1970 S C 98). In that case the relevant statute had provided for action being taken only in "public interest" and since there were no words in the statute to show that the question of taking action was left merely to the subjective satisfaction of the authorities; the Supreme Court observed as follows;

"It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "Public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over-fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer 'alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities." On a consideration of the concept specially with reference to a mere order of transfer of a case we are of the view that if the Martial Law Administrator had perused the papers and considered the facts of the case before arriving at his conclusion that "public interest" demanded transfer of the case, this Court would not in exercise of jurisdiction under Article 199 of the Constitu tion of Pakistan displace such case of satisfaction and substitute its own opinion, except when the order is patently one that deviates from its purpose. The contention deserves to be rejected and we reject the same.

14. The last point that has been urged by Mr. Rasheed Akhund was that transfer of this case was mala fide. He submitted that the petitioner was victimised because be was the brother of Mr. Mumtaz Ali Butto, a former Federal Minister and prominent leader of Pakistan People's Party. He further submitted that as soon as the Special Judge passed an order acquitting petitioner in the case under sections 162 and 163, P. P. C. the present order was passed. There is nothing before us to show that the order of transfer of the case which was passed on the fourth day of the acquittal of the petitioner in the case under sections 162 and 163, P. P. C. can be termed mala fide for such reason alone. The two cases were independent and one had no bearing on the other. In any case no inference of mala fide can be drawn from that circumstance alone. Even the fact of the petitioner being a brother of Mr. Mumtaz Ali Bhutto cannot lay the foundation for such inference.

15. Mr. Rasheed A. Akhund has however attempted to argue the case on merits before us. We have not permitted him to do so because he was only seeking relief against the transfer of the case.

16. For all the above reasons we are of the view that there is no substance in this petition and we dismiss the same. We shall leave the parties to bear their own costs. Petition dismissed.