P L D 1967 Dacca 352 (PLP)

13 and 36 Offences against members of Armed Forces only. 42 and 65 Hoarding and Blackmarketing. 22 Adulteration of foodstuff. 27 Smuggling. 45 and 58 Foreign Exchange offences and conversion of Pak Currency. 5 Abetment and attempt to commit the offences, enumerated above. 68 Trial in absentia in the above cases. (b) On completion of necessary investigation in respect of the above offences, or any other offence which is chargeable exclusively under the Martial Law Regulation, the officer‑in -charge, police‑station, will submit the investigation report along with the charge‑sheet to the Magistrate, Sub‑divisional Officer concerned, who will ensure that the investigation and record of the case is complete in all respects. The Magistrate, Sub- divisional Officer will then send the case with the said report to the President, Summary Military Court concerned who may expedite the case if it is delayed at any stage. (c) Offences charged under Martial Law Regulation shall be non‑compound able. (3) The President, Summary Military Court, on receipt of the record of a case may try the case himself, or where the offence is of grave nature, shall submit it to the President Special Military Court for trial. The President, Summary Special Military Court, may either cancel or confirm the ball granted during the investigation stage and will communicate his order to all concerned. (4) (a) No Military Court shall entertain a case at the investigation stage or where the record of the case is incomplete subject to sub‑para. (b) below. (b) As regards Remand and Bail during the investigation stage the officer‑in‑charge, police‑station, shall produce the accused without delay before the nearest Magistrate Sub -divisional Officer concerned for appropriate orders, which shall be final in respect of offences specified in para. 2 above, provided that the President of the Special Military Court having jurisdiction, may in respect of cases enumerated in para. 2 above, once moved to review the orders rejecting or granting the bail. (5) The investigation report referred to above, which is submitted to the President, Summary Military Court, shall contain a summary of the statement, made by each witness during the investigation, duly translated into English. An English translation of the F. I. R. seizure lists and other relevant documents will also be attached to the original documents. A copy of the aforesaid summary of statements shall be provided to the accused by the prosecution at least 24 hours before' the commencement of his trial. (6) The officers responsible for investigation (Police/BAC) and prosecution (PP/Pl/PSI) of the case will ensure that the case record is .complete and all relevant evidence collected before the case is put up to a Military Court for trial. If the Court finds any flaw or irregularity in the investigation1proseeu tion, the President of the Court will, where warranted, report against the persons responsible for the same to the reviewing authority for necessary action. (7) (a) In respect of any offence, civil or Martial Law, other than those specified in para. 2 above, the Martial Law Administrator or Sub‑Administrator concerned, may at his discretion or at the request of the District Magistrate, order the trial by a Military Court. (b) Martial Law Administrator or Sub‑Administrator may, where appropriate direct the Magistrate/ District Magistrate to transfer a case to a Military Court for trial. Where a case in which trial has commenced, is transferred, the Military Court to which the transferred, shall commence the trial de novo." From the above in the light of clauses 2 (b) and 7 (a) of the order, it appears that for Martial Law offenses of the present kind, the S. D. O. is a mere‑conduit‑pipe for the purpose of expeditious transmission to the President, Summary Military Court. The S. D. O. in this case has not even the powers of a Magistrate under Chapter XVIII of the Code of Criminal Procedure to examine even as to whether there is a prima fact case. The scheme of the order leaves no room for the learned Magistrate to entertain the case for his disposal or to discharge arid it is out and out the domain of the Military Court, It also appears that Regulation No. 61 dated 4th February 1959, provided for trial of all cases under Martial Law Regulations by Special Military Courts and Magistrates of the First Class except those which provided the penalty of death. Regulation No. 66 of the Martial Law Regulations, amended Regulation No. 61 which provided that:‑ "With effect on and from the 1st day of March 1959, no case relating to an offence under any of the Martial Law Regulations shall be tried by any Court other than a Military Court, Special or Summary:" On 27‑5‑1961 C. M. L. R. 61 was further amended by Regulation 86 which provided that:‑ "(1) with effect from 27th May 1961, cases relating to offences under Martial Law Regulations Nos. 18, 21, 26, 27, 31, 32, 42, 43, 44, 45, 46, 52, 54, 58, 62, 64, 65, 67, 75, 77, 80 and para graph 3 of Martial Law Regulation No. 83, shall, if the Zonal Martial Law Administrator so decides in any case, also be triable by the ordinary criminal Courts competent under the Code of Criminal Procedure, 1898, to impose the maximum penalty provided in the Martial Law Regulation to which the offence relates. (2) Where a case is tried by an ordinary criminal Court under sub‑paragraph (1) the provisions of the Code of Criminal Procedure, 1898, shall apply." As it will appear from the above that M. L. R. No. 41 which is the present offence is not an item covered by that list. There is nothing to show any further amendment after Regulation No. 86 so as to include this item No.

41. The result is that on the 7th of June 1962, or on the com mencing day, namely 8‑6‑1962, the matter was not pending before either the Military Court or the ordinary Court. Mr. Tofail Ahmed sought to wriggle out of the quandary by pointing to the following provisions of Order No. 91 as appearing in the first para. thereof, namely:‑ "All Martial Law offences shall be registered with the nearest police‑station under the ordinary law of the land, provided that where the offence is not chargeable under the ordinary law, it shall be registered under the appropriate Martial Law Regulation." He has urged that the case being registered as Martial Law offence it stood transferred to the Criminal Court under the provisions of Order No.

26. It will be recalled that Order No. 26 only refers to transfer of cases pending immediately before the commencing day before a Special Military Court or a Summary Military Court. In terms of 2 (b) of Order No. 91 as quoted in extenso before, the case was yet to be sent with the report to the President, Summary Military Court. Mere registration of the offence under the appropriate Martial Law Regulation, therefore, does not mean that the proceedings were pending before the Special or Summary Military Court, Even as pointed out the offence was registered on 14‑7‑1961, as a Martial Law offence and their charge‑sheet was submitted before the S. D. O., on 18‑5‑1962, it made little difference. No additional copy of the F. I. R. even was sent to the Summary Military Court having jurisdiction‑the present offence under Martial Law Regulation No. 41 being not one covered by clause 2 (a) of Order

91. Not even the charge‑sheet submitted by the police on 18‑5‑1962, was before the Military Court. It was only lying before the S. D. O., for wholesale trans mission of the case with the report and the charge‑sheet. Next question is as to whether the present proceedings could be saved by Article 250 of the Constitution. Article 250 of the Constitution is in these terms:‑ "Where a law is repealed, or is deemed to have been repealed by, under, or by virtue of this Constitution, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. and any investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, for feiture or punishment may be imposed, as if the law had not been repealed." Mr. Ahmed, the learned counsel for the State wants to say that the present proceeding is fully covered by the Article/and in support he has relied on the decision in the case of Renuka Moyee Dus as quoted already. In that case the case against the accused actually started long before the commencing day and after commitment by Magistrate, was pending before the Sessions Court on 15‑6‑1962, which discharged the accused on the ground that the Martial Law involved expired under Article 225 of the Constitution with effect from 8‑6‑1962. The case before us is rather different. Although it may be said that the proceedings were launched at a time when the Martial Law was in operation, the charge- sheet by the police being on 18‑5‑1962, it could not be said that the matter was pending before either the Military Court or the ordinary Court before the commencing day. The matter seems to be hibernating in "no man's land" before the commencing day. It did not go to the Military Court nor did it come back therefrom for disposal by the ordinary Court nor did it stand transferred. Mr. Tofail Ahmed has next relied upon the expressions "remedy may be instituted" in clause (e) of Article 250 of the Constitution. This raises the fundamental question of jurisdiction which has not been dealt with in the decisions laid before us. Even assuming that clause (e) of Article 250 of the Constitu tion authorised even instituting of the case at this stage, the course would be easy if the offence had any correspondence with the ordinary law in which case there could be no total extinction of the liability. The Legislature it seems has not provided any forum or provision for the present type of offence which is purely martial and which could not be held to be pending either before the Military Court or the ordinary Court before the commencing day of the Constitution. Jurisdiction cannot be conferred by implication and by provisions in the nature of savings as in Article 250 of the Constitution. There is another serious aspect of the case, namely, that the maximum sentence under Martial Law Regulation No. 41 even as modified runs to seven years' which no Magistrate in the ordinary course has the power to impose. In the circumstances as above, we hold that the presently proceedings against the petitioners are not warranted by law. Confronted with the rather difficult predicament, the learned Counsel for the State made commendable efforts to save the situation though without success. The Rule is made absolute; the proceedings against the petitioners in D. A. B. G. R. Case No. 951 of 1961 now pending before the learned Magistrate are hereby quashed. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Rule made absolute.