P L D 1961 (W (PLP)

A. A. G. for the State. Date of hearing: 23rd May 1961. This is a revision application under sections 439 and 561‑A, Criminal Procedure Code and arises in the following circumstances: On a written report, dated 29‑11‑1960 by the office bearers of the Pakistan Council of Child Welfare, an offence under section 406, P. P. C. was registered against the petitioner Iftikhar Muhammad Khan upon the allegation that he had misappropriated a sum of Rs. 70,000 belonging to the said Council of which he was the Honorary Joint Secretary. It is an admitted position that the case was not registered under any Martial Law Regulation. The C.I.D. took several remands from the Court of the Sub‑Divisional Magistrate, Cantonment, Karachi and ultimately submitted a charge‑sheet in that Court under sections 406/408/34, P. P. C. against the petitioner and one Muhammad Shafi, the Accountant of the Council, on 29th December 1960. Then after several adjournments in that Court the case was, under the orders of the District Magistrate transferred to the Court of the Additional District Magistrate, Karachi, before whom the petitioner appeared on several dates and the case was adjourned from time to time. On 13th May 1961 when the case again came up before the learned A. D. M. it is stated that the petitioner was orally informed that the case would be sent for trial before a Military Court. Upon this the petitioner filed an application before the A. D. M:, stating inter alia that since cognizance had been taken by that Court the case could not be sent for trial to a Military Court. Upon this application the . learned A. D. M. merely made the following endorsement:‑ "Keep it on record." The petitioner then filed the present petition in this Court and the matter was placed before me on 16‑5-1961, on which date I admitted the petition but declined to grant an interim stay regarding the proposed transfer of the case and issued notice to the State for that purpose. In answer to this notice the learned A. A. G. appeared before me on 19‑5‑1961 and as it was conceded that the case had not been registered under any Martial Law Regulation, I directed the A. D. M. not to transfer the case pending the decision of the main revision application, the hearing of which was fixed for 22‑5‑1961. On that day it appeared from a letter, dated 19th May 1961 by the A. D. M., Karachi which had been received in this Court in the meantime that the case had already been sent to the Martial Law Sub‑Administrator No. 5 Sector, Karachi by the District Magistrate under his office letter, dated 17th May 1961.

2. Mr. Haleem, the learned Advocate for the petitioner, remained undaunted by the information conveyed in the aforesaid letter of the A. D. M. and contended that the District Magistrate had no jurisdiction to send this case to the Martial Law authorities, and for that reason this Court still had jurisdiction to recall the case. When asked as to under what provision the learned District Magistrate had acted the A. A. G. stated that he had done so under clause 1 (c) of Martial Law Order No. 68 issued by the Martial Law Administrator, Zone A. The learned A. A. G. frankly stated that there was no other power under which the D. M. could have acted.

3. Let me reproduce the relevant portion of the Martial Law Order No. 68:‑ . "

1. Registration of Martial Law Cases.‑.‑(a) All offences shall be registered by the police under the Ordinary Law of the land. Where the offence is not chargeable under the ordinary law it shall be registered under the appropriate Martial Law Regulations. (b) The necessary investigations into the case shall be carried out by the police expeditiously. (c) On completion of the investigation, the case file complete in all respect, shall be submitted without delay to District Magistrate, who may refer the case to Martial Law Adminis trator with his recommendation for trial by Military Court. No case will be sent to Headquarters Martial Law Administrator direct by the police. Decision regarding trial of a case shall rest with the Martial Law Administrator." Before I go on to examine the implication of the 'above provision it may be useful to examine the background of this legislation. Article 4 of the Laws (Continuance in Force) Order, 1958 maintains the continuity of all existing laws other than the late Constitution until altered, repealed or amended. Under Martial Law Regulation No. 1 (A) the criminal courts as well as the Special and summary Military Court were given concurrent powers to try and punish any person for contravention of any Martial Law Regulation or Order or for offences under the ordinary law. Under Martial Law Regulation No. 61 before it was reconstituted a Magistrate was entitled to try cases under Martial Law Regulation unless it was otherwise ordered. This Regulation was amended by Martial Law Regu lation No. 66 whereby with effect from the 1st of March 1959 no case relating to an offence under any of the Martial Law Regulations was to be tried by any Court other than a Military Court. Exception however was made in the case of pending cases. Regulation No. 66 came into force on 4‑2‑1959: There were many offences which fell both under a Martial Law Regula tion as well as the Pakistan Penal Code and formerly the choice was with the police to register an offence either under the ordinary law or any Martial Law Regulation. We can now revert to the Martial Law Order No. 68.

4. Under clause 1 (a) of the said Martial Law Order all offences were to be registered by the police under the ordinary law of the land and it was only where the offences was not so chargeable it could be registered under the appro priate Martial Law Regulation. Sub‑clause (b) requires the expeditious investigation of such cases, namely the cases registered under any Martial Law Regulation. Then comes clause (c) under which after the completion of the, investigation the complete file has to be submitted by the investigating agency to the District Magistrate who may refer the case to Martial Law Administrator with his recommendation for trial by Military Court. The police were expressly prohibited from sending any such case directly to the Martial Law Administrator.

5. A plain reading of the above provision makes it abundantly clear that it is only in those cases which have been registered under the Martial Law Regulation and which did not fall under any provision of the ordinary law, the file after the completion of the investigation, has to be submitted U to the District Magistrate for his recommendation which is provided for by sub‑clause (c), In the present case the offence in question did fall under the Penal Code and was so registered. B St it is common ground that the case had not been registered under any Martial Law Regulation. I am, therefore, not able F` to see how this file could have been sent to the District Magistrate, nor can I see what jurisdiction he had to make his recommendations and send the case to the Martial Law Administrator. Such a procedure is clearly contrary to the provisions of Martial Law Order No. 68.

6. The next question is whether in the present application which has been made under sections 439 and 561‑A, Cr. P. C. I can pass any order either quashing the recommendation or recalling the case, I have heard Mr. Haleem at some length on this point but it appears to me quite clear that neither section 439 nor section 561‑A gives me the 'jurisdiction to pass an order of the nature which is prayed for by the petitioner. The learned District Magistrate in making his recommendation was neither acting nor purporting to act under the Criminal D Procedure Code. The recommendation that he made, though without jurisdiction, was purported to have been made under the Martial Law Order No. 68, clause (1) (c). That recom mendation is, therefore, not liable to correction in the exercise of jurisdiction conferred on this Court by section 439 or 561‑A, Cr. P. C. This revision application, therefore, must fail and is accordingly dismissed.

7. I may add that in making the observations which I have with regard to the validity of the order of the District Magistrate have in no manner taken into account the merits of the case. There is no doubt that the nature of the offence alleged against the petitioner is both serious and shocking. But it has to be proved according to law. Every accused person however despicable his conduct might appear has the right to claim that he be tried according to the law of the land. K. M. A.