P L D 1969 Dacca 61 (PLP)

ABDUL HAKIM, J.‑In this application the petitioner has challenged the order of conviction and sentence passed on 17‑1‑66 by the Special Summary Court constituted under the East Pakistan Rifles Act, 11920 sentencing the petitioner to suffer rigorous imprisonment for 3 months under section 7(s) of the said Act. Facts of the case are that the petitioner who was formerly a member of the East Pakistan Police Service joined the East Pakistan Rifles as junior Commissioned Officer in 1957. While he was posted in such capacity at Jessore Head Quarter under the Wing Commander, 4 Wing, Chuadanga, the petitioner took casual leave for some days with effect from the, 10th July 1963, and thereafter he did not resume his duties on the ground of health till he was apprehended on the 26th November 1965. It has been alleged in the petition that after expiry of his casual leave on the 13th July 1963 he was ready to resume his duties but be fell seriously ill and was compelled to get himself admitted into the Police Hospital, Khulna for treatment of his bacillary dysentry. The Civil Surgeon, Khulna, at the time of his discharge from hospital advised him for complete rest for 6 weeks and accordingly the petitioner was taken home by his relations in serious state of illness. Thereafter he was bed ridden for a considerable period and was always in a very bad state of health till the date of his arrest. The Civil Surgeon, Barisal after examining the petitioner opined that he was not fit for active duty and so issued two certificates on 3‑10‑63 and 2‑12‑63 respectively for his invalidation. The petitioner sent all these reports and certificates of the Civil Surgeon's Khulna and Barisal to the Wing Commander, 4 Wing, Chuadanga for extension of leave. The petitioner has also alleged that while be was bed-ridden due to acute bacillary dysentry, the local police all of a sudden arrested him from his house and handed him over to Jessore Head Quarter, East Pakistan Rifles where he was kept confined for more than two months. Thereafter on 13‑1‑66 a charge was framed against him and he was put on trial before a Special Summary Court to meet a charge under section 7(s) of the East Pakistan Rifles Act. Lt.‑Col. M. Bashir constituting a Special Summary Court under the said Rifles Act tried the petitioner without giving any reason able opportunity to defend himself and convicted him illegally under section 7(s) of the Rifles Act for deserting the service without leave and accordingly sentenced him to suffer rigorous imprisonment for 3 months by an order, dated 17‑1‑

66. The respondents Nos. 1 and 2 have filed a counter -affidavit controverting the facts relevant for disposal of the Rule. It has been stated in the affidavit‑in‑opposition that the petitioner was granted casual leave from 10‑7‑63 to 13‑7‑63 but after the expiry of said leave the petitioner never resumed his duties in spite of several telegrams directing him to report for duties to his Unit forthwith. The petitioner in utter disregard of these telegrams and warnings did not report back to his Unit to get his leave sanctioned and as such the petitioner was guilty of deserting his service without leave and consequently his name was struck off strength with effect from 7 8‑1963 for being absent from duties for more than 60 days. The respondents further asserted that since the accused had deserted the service, so an action under section 7(s) of the East Pakistan Rifles Act was taken against him in accordance with law. He was given reasonable opportunity to defend himself and he was also asked to show cause and the causes shown by him in his show‑cause explanation, dated 24‑1‑1966 were duly considered by the Court. The order passed against him is quite legal and is also in complete harmony with the provisions of law. Mr. Abdur Rasheed, learned Advocate for the petitioner has contended before us that in the absence of any legal evidence as to the desertion from service by the petitioner, the order of conviction and sentence has resulted in mis‑carriage of justice. The casual leave of the petitioner expired on 13‑7‑1963. He was thereafter admitted into the Police Hospital Khulna for treatment and discharged from there on 6‑8‑1963. The office of the Wing Commander, 4 Wing, Chuadanga is just half a mile from Khulna Police Hospital. The petitioner could very well come to the office of the Wing Commander and personally submit the certificate issued by the Civil Surgeon, Khulna to obtain a prior sanction of leave for his rest. But instead of doing that he straight went home. The Civil Surgeon Barisal twice recommended for further leave of the petitioner and the petitioner who could come to Barisal to get himself examined could very well go to the Wing Commander, Jessore Head Quarter person ally for prior sanction of his leave as required under the rule, but he did not do so. The statement that the petitioner was all along bed‑ridden and as such he could not come to his unit is falsified by the fact that he went to the Barisal Town time and again for procuring medical certificates. His home district being Khulna he could easily go to his Head Quarter at Jessore for sanction of leave. The petitioner was repeatedly asked to report for his duties to his Unit but he did not respond. He was warned that in the event of his failure to resume his duties, disciplinary action would be taken against him, but he disregarded all the telegrams and warnings. The assertion of the petitioner that he was attacked with bacillary dysentery in July 1963 and the said dysentery continued till the presenta tion of this petition on the 28th February 1966 seems to be quite unnatural. The paragraph 6 of the affidavit‑in‑opposition shows that one Keshab Chandra Howlader, a neighbour of the petitioner sent a complaint against the petitioner for his foul activities with a request to the Sector Commander, Jessore, to take action against him and this indicates that the petitioner was not bed‑ridden due to his dysentry. The two certificates procured from the Civil Surgeon, Barisal for invalidation give an indication of his mind. Thus there are sufficient materials to make out a case of desertion from service. The facts, circumstances and materials on record clearly show that the accused peti tioner actually deserted the service and the action was legally taken against him in accordance with law. The record shows that the petitioner took his defence in the trial and he also submitted lengthy explanation in reply to the show‑cause notice served on him. It has been asserted in the affidavit‑in‑opposition in paragraphs 10 and 12 that the Special Summary Court which was a properly constituted Court duly considered his defence and explanation submitted by him in the trial. There is, thus, no substance in the contention raised by the learned Advocate. There is another aspect of the matter. The impugned order was passed on 17‑1‑1966. The petitioner was sentenced to suffer rigorous imprisonment for 3 months. His prayer for bail was rejected at the time of issuance of the rule on the 28th February 1966. The 3 (three) months period of imprison ment already expired on 16‑4‑1966. The prayer for bail having been rejected, it seems that the petitioner has served out his sentence long ago and he is no more in custody. This being the position the rule has technically become infructuous. The impugned order having already lost its force, in our opinion, no purpose will be served by issuance of any writ at this stage. In these circumstances we are unable to interfere' in the matter and accordingly discharge the Rule without an order as to costs. SIDDIKY, C. J.‑I agree. Rule discharged.