1989 PLP 3783 (MLD)

Date of hearing: 14th March, 1989. AJMAL MIAN, C. J.--By this common judgment, we intend to dispose of the above four petitions which involve identical points of law and fact. The brief facts leading to the filing of the above petitions are that one Muhammad Afzal lodged F.I.R. as Crime No. 113/1984, at Police Station Kotdiji, on 24-10-1984, alleging that he was working as Cashier at Pasha Petrol Pump, situated in Deh Liyari, at Rahbar Trucking Station, with co-cashier Rasheed Khan and helpers Muhammad Yousif and Muhammad Bachal. It was alleged that on the night of incident. Rasheed Khan and Mohammad Bachal were present on the duty at the petrol pump, whereas the complainant and Mohammad Yousif were sleeping and so also a driver by the name of Mohammad Mansha, Mistri Shah Nawaz, Alain Sheer Hotelwala and complainant's father Muhammad Alim, when at about 2 o'clock, at night, the complainant party got up on cries and saw 8 to 10 persons, out of them one had Hatchet and the other had rifle and the remaining had guns who started firing and threatened the complainant to keep silent. It was also alleged that in the meanwhile Rasheed Khan got up from his chair and started going towards western side, but one man armed with gun fired or the back of Rasheed, who fell down. The complainant party remained silent due to fear. It was also alleged that the accused after controlling the complainant party, two of the culprits armed with guns opened the drawer of the table, took out cash lying therein, one revolver, two watches, one gun lying in the cabin. They also searched the persons of the complainant party, but in the meanwhile, police party arrived and fired upon the culprits, but they disappeared in the darkness. Thereupon, the complainant party saw Rasheed Khan having fire-arm injury on his waist in unconscious condition, and, therefore, he was shifted to the Civil Hospital. The complainant party also found that cash amount of Rs.37,323, Seiko Watch, one Citizen Watch, one Revolver and one gun were taken away by the culprits. In response to the above P I R, the present four petitioners alongwith 6 others were tried by Special Military Court No. 36, Khairpur (hereinafter referred to as the Special Military Court) after framing the charge under section 302/147/148/149 P P C read with M L R 7 & 8 and M L O

77. Upon the conclusion of the trial all of them were awarded death sentence on 12-12-1985. The death sentence was confirmed by the C M L O on 24-2-1986. It may be observed that two accused persons Khawaja alias Ghulam Hussain and Pivaro Mari were absconder out of them, Pivaro was arrested later on and was tried separately. Upon the filing of Mercy Petition by the petitioners and other co- accused, the petitioners' sentences were commuted to life imprisonment but the sentence of death in respect of co-accused Azim Mari was confirmed. The petitioners have filed the above petitions to impugn the above conviction and sentence.

2. It may be observed that one of the co-accused namely, Shah Muhammad also filed a Constitution Petition, which was dismissed in limine by a Division Bench of this Court by an order dated 11-5-1987, the order of which is reported in 1987 M L R Criminal 560, (Shah Muhammad v. The Federation of Pakistan, etc.).

3. In support of the above petitions, M/s. Mumtaz Ali Sikkiqui and Abdul Hameed Dogar, learned counsel for the petitioners, have urged that in terms of President's Order No. 4 of 1982, the petitioners should have been tried by a Special Military Court comprising an Army Officer not below the rank of Lieutenant-Colonel, who was to preside over the Court, a Magistrate of the first class exercising powers under section 30 of the Code of Criminal Procedure, 1898, and an Army Officer not below the rank of Major, as Members, but the petitioners were tried by the above Special Military Court in which a Magistrate was not having the power of section 30 and the Army Officer was not of the rank of Major but was Captain and, therefore, the proceedings before the above Special Military Court were coram non judice and without jurisdiction.

4. Mr. A. A. Mohammadally, learned Additional Advocate-General, who appeared on Court notice, supported the learned counsel for the petitioners' above contention.

5. However, Mr. Umar Qureshi, who had appeared for the Federal Government, has urged that since the petitioners were tried under M L O 4 and not under the President's Order No. 4, the above argument is misconceived as the constitution of Special Military Court was in accordance with the above M.L.O.

6. Before dilating upon the above submissions of the learned counsel for the parties, it may be observed that in terms of the judgment of the Hon'ble Supreme Court in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar and others connected appeal reported in P L D 1989 S C 26, this Court can only interfere with the conviction recorded by a Military Court in case of coram non-judice proceedings, without jurisdiction and mala fide. We cannot therefore, go into the question of appraisal of evidence and secondly, in the instant case, the copies of the depositions have not been filed, the question of appreciation of evidence does not arise. The only questions which require consideration are whether the Special Court was constituted under M L O 4, whether the petitioners could have been tried under M L O 4 or should have been tried under President Order No. 4 of 1982.

7. The petitioner in C.P. No. D-1121/1987 has admitted the factum that the Special Military Court was in fact constituted under M L O 4, but the other three petitioners in the petitions have not admitted the above fact. However, none of them has filed any document.

8. The thrust of the arguments of the learned counsel for the petitioners was that since the President's Order No. .4 of 1982, which was amended by President and C M L O Order No. 2 of 1982, gazetted on 8th April, 1982, the words "A Chief Martial Law Administrator" were added after the words "President" originally used in President Order No. 4 of 1982, it had become at par with the martial law Orders and, therefore, being subsequent in time and being issued for trial of certain offences mentioned in the schedule, the same shall prevail upon the provisions of M L O 4 which was issued in 1977 and which covered all the offences under the P P C and other enactments. In other words to put it precisely their contention is that because of President's Order No. 4 of 1982 which contained inconsistent provisions to that of M L O 4, the provisions of the latter were excluded.

9. We have sent for the Gazette to rind out under what provision Special Military Court No. 36 was constituted and we have found that the same was constituted in exercise of the powers conferred by Martial Law Order 4 by the Martial Law Administrator Zone-C through Gazette dated 6th May, 1985. In this view of the matter, the only question which requires consideration is as to whether it can be held that because of the alleged inconsistency between M.L.O. 4 and President Order No. 4 of 1982, the proceedings were without jurisdiction. It is true that M.L.O. 4 and President Order 4 are at variance as to the constitution of the personnel of a Special Military Court as pointed out by the learned counsel for the petitioners but we are unable to subscribe to the submission that because of the above variance the petitioners could not have been tried under M.L.O.

4. We are inclined to hold that M.L.O. 4 is independent from President Order 4 of 1982 and, therefore, it was open to the prosecuting agency to have invoked either M.L.O. 4 or President Order 4 of 1982 for the trial of the petitioners. The mere fact that President Order 4 of 1982_ provides the trial of certain offences which include the offences triable under M.L.O. 4 would not exclude the application of the provisions of M.L.0.4. It is not uncommon that an offence is triable by more than one forum. In the absence of express or implied exclusion of the jurisdiction, the other forums retain the jurisdiction, for example, a murder case could have been tried by a Session Court as well as by a Special Military Court. The mere fact that a murder case was triable by a Special Military Court would not have excluded the jurisdiction of the Session Court. The prosecution had the option to initiate the proceedings either before the Special Military Court or before a Session Court in accordance with law.

10. There is neither express nor implied exclusion of the application of M.L.O. 4 by President Order 4 of 1982 and, therefore, the proceedings were competently initiated against the petitioners under M.L.O.

4. Thus the proceedings cannot be said to be coram non judice or without jurisdiction.

11. On merits we have already observed hereinabove that this Court cannot j sit as a Court of Appeal for appraising the evidence and in the instant case even' otherwise it cannot be done as the copies of the testimonies have not been filed. The petitions have therefore, no merits and hence the same are dismissed with no , order as to costs. M.Y.H./K-158/K Petitions dismissed.