P L D 1980 Karachi 47 (PLP)

ZAFFAR HUSSAIN MIRZA, J.-On 7-10-1978 at 10-03 a. m. one Muhammad Ramzan son of.Muhammad Siddique Khaskheli, resident of Chilbund, Taluka Umerkot lodged a report with Anti-Corruption Police Circle Officer, Thar. parkar alleging that on 30-9-1978, he was deceitfully called through Constable Kaim at the Kunri Police Station where, S.

11. O. Mr. Raja informed him that his (complainant's) wife had given an application that she was in wrongful confinement of the complainant. He was also threatened by the S. H. O. that his second wife Mst. Sara was not lawfully wedded to him and that he would be confined in the lock-up to investigate the matter. The complainant further alleged that a demand of Rs. 4,000 as illegal gratification was made from him for his release which was finally settled at Rs. 2,000 by the S. H. O. and he was released from the lock-up to arrange for the money. He then went to Kunri Town and arranged to raise money by pawning the ornaments of his relation and by borrowing. Thus he could raise Rs. 1,200 which was paid by him to Constable Bichoo and for the balance of Rs. 800 he was ordered to arrange in a few days. He paid a further installment of Rs. 300, on 4-10-1978, to Constable Kumber Khan and it was agreed that the balance of Rs. 500 would be paid on 7-10-1.978 either to Kumber Khan or Kaim for being delivered to S. H. O.

2. On this report the Anti-Corruption Police arranged a trap an recovered Rs. 500 allegedly from the-- floor after Constable Kumber Khan hay thrown it away on seeing the raiding party. After the usual investigation Constable Kumber Khan was sent up to stand his trial before Summary Military Court, Mirpur Khas. Ile was tried and convicted and was awarded sentence of 12 months' R. 1. and 10 lashes on 4-11-1978. The petitioner ha challenged the aforesaid conviction and sentence.

3. Mr. Muhammad Ismail Hamirani, the learned counsel for the petitioner challenged the legality of the impugned conviction and sentence of the following grounds : (i) That the trial of the petitioner by the Summary Mil,tary Court was without jurisdiction inasmuch as no direction for the trial of the petitioner by the Summary Military Court was issued under C. M. L. O No. 54. (ii) That the petitioner being a. public servant charged with accepting illegal gratification could only be tried after requisite sanction for hi; prosecution was obtained as required by Pakistan Criminal Lam Amendment Act, 1958 which had not been admittedly obtained. (iii) That the detenu was charged with and convicted under M. L. O. 5, Zone-C, although the said M. L. O. now stands reconstituted by M. L. O. 59, Zone C. (iv) That there was a violation of the mandatory provisions of rule 132 of the. Army Act Rules. (v) That no copy of the charge as required by Army Act rule 24(2) was served on the detenu.

4. In support of the first two contentions, learned counsel placed reliance upon an unreported judgment of a D. B. of this Court in Constitutional Petition No. D-212/1978, Manzoor Ahamed v. President, Summary Military Court No. 3, Karachi (1). As in the present case the petitioner in the cited judgment was also a public servant working as Assistant in the Board of Secondary Education, Karachi and was convicted by the Summary Military Court, Karachi in respect of an offence under M. L. O. 5, Zone-C read with M. L. R .14, for accepting illegal gratification. Z. A. Channa, J who wrote the judgment for the Court observed as follows :-. "There is nothing In M. L. O.-4, as in force at the time of trial of the petitioner, from which it could be inferred that the Military Courts were also empowered to try cases falling within the exclusive purview of Special Judges, Courts and Tribunals. The intention of the law maker in this behalf is further made clear by M. 1.. 0-5s, which expressly provides that notwithstanding any provision contained in any law for the time being in force by virtue of which an offence is triable' exclusively by a Special Court, Special Judge or any ,ether type ofd Tribunal, such offence shall, in cases in which the Chief Martial Law "' Administrator so directs. be triable by a Military Court. This M. L. O. would have been wholly redundant .if M L O 4 had? conferred powers on the Military Courts to try all offences including? offences? exclusively triable by Special Judges, Courts etc. M. L. 0.-54, while on the one hand specially empowering the Military Courts to try such offences, notwithstanding anything contained in any other law permitted such a trial only in those cases where the Chief Martial Law Administrator had so directed. It is thus clear that only in special cases the Military (1) P L D 1979 Kar. 623 Courts have been. empowered to try offences otherwise exclusively triable by Special Courts and Tribunals." On the aforesaid reasoning and on the additional ground that the trial of the petitioner by the Summary Military Court without the requisite sanction under the Pakistan Criminal Law Amendment Act, 1958 was bad in law, the Court in the cited judgment came to the conclusion that the trial and conviction of the petitioner by the Summary Military Court was without jurisdiction.

5. Learned Additional Advocate-General sought to challenge the vie held in the aforesaid judgment and urged that the provisions regarding sanction for prosecution of the public servants under the Pakistan Criminal Law Amendment Act, 1958 were not attracted as M. L. O: 5 as reconstituted has created a new offence as distinct from the scheduled offences in the aforesaid', Act. Upon this argument he urged that the point requires re-examination by' a larger Bench of this Court for which a reference may be made. However, we are not persuaded to agree to this suggestion. In the first place the accusation made against the petitioner admittedly was of accepting illegal gratification as a remuneration for forbearing to do an official act or for showing favour to the complainant which would constitute an offence under section 161 or 162 of the Pakistan Penal Code, both of which are scheduled offences under the aforesaid Act. It would, therefore, appear that to this extent the provisions of M. L. O.-5 and the said sections are overlapping. It cannot, therefore, be said that, at least to the aforesaid extent any new offence has been created. Be that as it may, the other ground based upon C. M. L. O: 54 is in any case fatal to the prosecution of the detenu by Summary Military Court without the sanction of the Chief Martial Law Administrator. It is not the case of the respondents that such sanction was obtained. We, therefore, follow the cited judgment and hold that the trial and conviction of the detenu by the Summary Military Court was without jurisdiction. In the circumstances, it is not necessary to go into the other questions raised by the learned counsel for the petitioner.

6. In the result, we allow this petition and quash .the conviction and sentence recorded by the Summary Military Court, Mirpurkhas against the detenu Kumber Khan with no order as to costs. The detenu shall be released forthwith if not required to be detained in any other case.

1. MAHMUD, J.-I agree. M. A. g.???? Petition accepted.