1988 PLP 182 (SCMR)

NASIM HASAN SHAH, J.--This order will cover all the abovenoted 12 petitions for leave to appeal as the fundamental question arising in all of them is the same, namely, whether the provisions of Article 270-A introduced by the 8th Amendment to the Constitution of 1873 has the effect of validating, protecting and rendering immune from challenge not only the M.L.Rs., M.L.Os. and President's Orders promulgated during the Martial law period but also every kind of action taken thereunder? This question has arisen in the following way. A large number of constitutional petitions were filed before the Sind High Court challenging the decision of the Military Courts passed during the martial law period. The Sind High Court registry raised an objection to the maintainability of these petitions opining that they were not competent in view of the provisions of Article 270-A of the Constitution. A full Bench of five Judges considered the objection and after a lengthy hearing came to the conclusion that even under the new dispensation petitions under Article 199 of the Constitution were not completely barred in respect of convictions passed by the Military Courts or other actions taken by the Military authorities, although the scope on which they could be challenged was quite restricted, namely, only where the impugned action was without jurisdiction or where the proceedings were corum non judice. After recording the above finding the Court directed that the petitions be placed individually before the Division Bench for hearing in limine. The conclusions of the Court were recorded as follows:

"We have reached the following unanimous conclusion: (1) That Martial Law Order No.107 or inclusion of Martial Law Order No.105 in the schedule to Martial Law Order No.107 cannot be called in question and is protected under Article 270-A of the Constitution, which is valid. (2) The petitions under Article 199 of the Constitution are not under the present dispensation completely barred in respect of convictions by Military Courts or actions by Military authorities. However, the scope of challenge is now restricted to acts or orders which are without jurisdiction or to proceedings which are corum non judice. The petitions would now be placed individually before the Division Bench for katcha peshi." It appears that after the above findings were recorded, the petitions were placed individually before the Division Bench for katcha hearing. It further appears that some petitions filed after the above judgment was delivered also came up before the Division Bench for katcha peshi. In four such cases, namely, Civil Petition No.191-K of 1987 (Shah Muhammad v. The Federation of Pakistan etc.), Civil Petition No.231-K of 1987 (Edward Heally v. Federation of Pakistan etc.), Civil Petition No.261-K of 1987 (Ghulam Sarwar v. Government of Sind etc.) and Civil Petition No.288-K of 1987 (Ali Mohammad v. Government of Sind and others) in which the Military Court had sentenced the petitioners to death it was found by the Division Bench that no interference was possible in the decision of the Military Court because the question of alleged mala fide, illegalities or irregularities in the commission of the trial stood cured by the provisions of Article 270(2) of the Constitution. The constitutional petitions filed by these petitioners were accordingly dismissed for lack of jurisdiction. Both the Federation of Pakistan and the convicts feel dissatisfied with the above judgments of the Sind High Court. The learned Attorney-General on behalf of Federation of Pakistan has, inter alia, contended that in view of the provisions of Article 270-A every action taken under the law affirmed, adopted and declared as valid by the 8th Amendment cannot be called in question in any Court on any ground whatever and that even non-constitutional provisions (such as M.L.0.107) which have been incorporated in the Constitution stand on the same footing as constitutional provisions and are to be deemed to have been incorporated in the Constitution itself. Hence no interference with the decision or action taken either under any M.L.R. or under any M.L.O. which stand incorporated in the Constitution is possible in proceedings under Article 199 of the Constitution. On the other hand, on behalf of the convicts, it is contended, inter alia, that Article 270-A of the Constitution and M.L.O. 107 are ultra vires of 1973-Constitution and the High Court can in any case interfere with the order and sentence passed by the Military Courts if it was mala fide or where the latter have failed to follow the mandatory requirements of the Army Act or where no nexus existed between the evidence on record and the offence for which the accused was convicted. The questions arising in these petitions are of general publicly importance. Leave is, accordingly, granted. Security in Civil Petitions Nos.191-K/87, 231-K/87, 261-K/87 and 288-K/87 shall, in each petition, be furnished in the sum of Rs.500. As for the prayer for suspending the sentence of the convicts, the Attorney-General has assured us that the sentence of death passed against them will not be carried out during the pendency of the appeals. As for the prayer made by the learned Attorney-General that the operation of the impugned order of the High Court in the 8 petitions filed by the Federation, namely, Civil Petitions Nos.170-R/87 (Federation of Pakistan v. Maula Bakhsh etc.), 181-R of 1987 (Federation of Pakistan v . Rafi Ahmad etc.), 182-R of 1987 (Federation of Pakistan v. Nasir Ahmad etc.), 232-R of 1987 (Federation of Pakistan v. Mst.Saeeda Khatoon etc.), 233-R of 1987 (Federation of Pakistan v . Raza Muhammad etc.), 234-R of 1987 (Federation of Pakistan v . Roshan and others), 235-R of 1987 (Federation of Pakistan v. Shah Nawaz & others) and 236-R of 1987 (Federation of Pakistan v. Gul Hassan Brohi etc.) be suspended is concerned we accept the prayer and direct that further proceedings before the Division Bench in these petitions shall, during the pendency of these appeals, remain stayed. The appeals shall be made ready on the present record with liberty to the parties to add further documents if any and put up for hearing on any early date. M.B.A./S-92/S Order accordingly.