The facts of the case are that Muhammad Aaqil, Liaquat Altaf, Nadeem Durrani and Nasrullah Khan all the four accused persons were tried by a Summary Military Court for the offence alleged to have been committed by them under section 377/342/34, P. P. C. According to the F. I. R. Registered at Police Station Cantonment, Rawalpindi on 25-1-1978 by Rahim Bakhsh under the aforesaid provisions of law Waqar Ahmad, student of 10th class son of the complainant was made victim of unnatural offence on 2nd December 1977, by the four accused persons named above. According to the complainant on the aforesaid date when Waqar Ahmad was passing through Bazazan Gali along with Tariq Mahmud he saw Muhammad Aaqil one of the accused standing in front of his house. He enticed both of them and took them to a house of his relation where three other accused named above, were sitting. After some time Tariq Mahmud went away because of some urgent work. Thereafter Nasarullah one of the accused went out of the room and locked the door of the room from outside. According to the F. I. R. Thereafter the remaining three accused persons caught hold of Waqar Ahmad and committed unnatural offence upon him under duress and threat of dire consequences. Waqar Ahmad was rescued according to his statement by one Sajid. Waqar Ahmad did not disclose to anybody about this incident. Before the F.
1. R. Was lodged Nadeem Durrani and Liaqat Altaf two of the accused persons were standing in the street on 24-1-1978. They both were threatening Waqar Ahmad and persuading him to accompany them. Nasir Mahmood P.
W. Who by chance appeared on the scene got suspicious on seeing this. On inquiry Waqar Ahmad told him the whole story. It is alleged in the F. I. R. That both the accused persons admitted their guilt before Nasir Mahmood and told him that they would repeat the same incident. Nasir Mahmood and Waqar Ahmad then narrated this incident to the complainant as well as his son Arsbad. Consequently the F. I. R. Was lodged on 25-1-1978.
2. After the registration of the case all the accused persons were enlarged on bail by Muhammad Iqbal Cheema, Magistrate 1st Class, Rawalpindi vide his order dated 9-2-1978. The case was thereafter transferred to the Summary . Military Court for trial which charged the accused under section 342, P. P. C. And Martial Law Regulation 34 on 7th of August 1978. However a fresh charge was framed against them on 24th August 1978, under sections 342 and 377, P. P. C. Deleting the charge under Martial Law Regulation 34. This was done probably for the reason that the offence in this case was alleged to have been committed on 2-12-1977 while the Martial Law Regulation was enforced on 14th of March 1978, and as such could not be made applicable against the accused persons.
3. The record shows that before that on 8-2-1978 when the case was seized of by the Summary Military Court the parties compromised as shown by Annex. `B' certified copy of the order passed by S. M. L. A. Concerned. A letter was sent by the S. M. L. A. On the aforesaid date, i.e. 8-2-1978 to the District Magistrate, Rawalpindi indicating that since the accused in the case have tendered written apology which has been accepted by the aggrieved party and since the matter has been amicably settled by the notables of the locality, therefore, the case against the accused persons may be dropped and order in this behalf may be issued. The District Magistrate, Rawalpindi however, by his order dated 11-7-1978 refused to withdraw/drop the case pending against the accused. According to the order, on the receipt of the letter dated 8-2-1978 the District Magistrate summoned the parties. The complainant, however, did not appear. Strangely enough the accused were asked on several occasions to produce the complainant before the District Magistrate or to produce some evidence to the effect that the complainant was not interested to pursue the matter, Since the complainant did not appear, therefore, the District Magistrate strangely got the impression that he was not interested to drop the case against the accused persons. It was held that since it was a case of moral turpitude therefore law should take its own course. Consequently the case was sent back to the trial Court for disposal on merits.
4. It appears from the record that after the case was returned to the Summary Military Court S. M. L.
A., Rawalpindi passed an order on 12th of August 1978, sending the case back for trial by an ordinary Court. At this Major Zabid Munir (PA-12282) made an application to the S. M. L. A. Sub- Sector 2, Rawalpindi on 17-8-1978 praying that the case should be tried by the Summary Military Court and not by the ordinary Court. He gave the following reasons in this behalf :
(a) The case is of a heinous and violent nature.
(h) The accused party is very influential and the applicant shall not get justice from civil Courts.
(c) In civil Courts the case is expected to take a long time. It shall effect the education of my younger brother. Moreover my father is an old and sick person and he cannot sustain the rigorous of the civil Courts.
(d) After serving of charge-sheets to the accused the trial process has begun and it should not be stopped after hearing the accused party alone.
5. According to the learned A. A.-G. S. M. L. A. Concerned ordered on 19th of August 1978, for trial of the case by the Summary Military Court. The application submitted by Major Zahid Munir bears some signatures under the aforesaid order. The said signatures are not however, legible. The main reason given by Major Zahid Munir for the trial of the case by the Summary Military Court was that the accused party was very influential and the applicant would not get justice from the civil Courts.
It may be mentioned here that there is nothing on record to show that the case which was pending before the ordinary civil Court was transferred to the Summary Military Court for trial by some competent authority under Martial Law Order 37. According to that provision Martial Law Administrator of a Zone can make an order for transfer of a case to a Military Court pending adjudication before the ordinary Criminal Court if be is of the opinion that such transfer is necessary for the maintenance of law and order or public tranquillity or for expeditious disposal in public interest. Even if it is conceded for arguments sake that the present case was transferred by a competent authority under Martial Law Order 37 question would still remain to be answered whether such transfer was necessitated on the grounds mentioned in Martial Law Order 37. The incident obviously did not relate to the maintenance of law and order or public tranquillity. The crime involved no doubt, is heinous but after its alleged commission on 2-12.1977 nothing untoward happened till the case was registered against the accused on 25-1-1978. Even thereafter a mentioned above the parties compromised and the Summary Military Court concerned sent back the case to the District Magistrate for being dropped. e It clearly shows that law and order situation was not involved in any manner. The next ground on the basis of which a case can be transferred by a Martial Law Administrator to a Military Court is if its expedition disposal is considered to be in public interest. The case no doubt was disposed of expeditiously but what public interest was involved in such disposal has not been shown anywhere on record nor any such interest has been brought to the notice of this Court during the arguments. Public interest may have been involved if the matter related to the maintenance of law and order or public tranquillity. In certain cases registered under the Penal Code which were tried by the Military Courts, public sentiments were aroused at large because of the commission of such offence in a very grave manner. A teen-aged boy named Pappu' was criminally assaulted and then murdered by some accused persons at Lahore. His dead body was recovered from a pond. This aroused the public interest and hue and cry all over and it was demanded that culprits should be apprehended and tried expeditiously. The circumstances of that case no doubt necessitated the trial by a Military Court. There are some other instances also of the same kind.
However, in the present case I have not been able to find out any legal necessity or any prerequisite for trial of such offences by a Military Court,,
6. The circumstances of the case further show as alleged by the accused persons that the case was sent to Summary Military Court for trial because of Major Zabid Munir, elder brother of the victim Waqar Ahmad. I don't want to make any further observation in this behalf but the fact remains that after the casa was sent back to the ordinary civil Court for trial by the S. M. L. A., Rawalpindi on 12th of August 1978, it was ordered to be tried by the Summary Military Court by some Martial Law Authority having no jurisdiction on 17th of August 1978, on the application of Major Zahid Munir.
7. Application of Martial Law Order 37 for transfer of criminal cases pending in the ordinary Courts to Military Courts is not a mechanical process as envisaged by the Martial Law Order Certain prerequisites have been laid down therein and in the absence thereof no case can be transferred to Military Court for trial. The power given under Martial Law Order 37 to the Martial Law Administrators has to be exercised with due care. A case already pending before an ordinary Court cannot be transferred without application of mind to the given circumstances. All the pros and cons of the case in context of the aforesaid prerequisites have to be weighed before passing an order for transfer. It is admitted that so far as some of the penal offences are concerned concurrent jurisdiction vest in the ordinary Courts as well as the Military Courts. The ordinary Courts have been allowed to perform their functions. It means that ordinarily a case registered under the provisions of Penal Code should b tried by the criminal Court except in exceptional circumstances a mentioned in Martial Law Order 37. Sub-paragraphs 2(l) and (2)-A of Martial Law Order 37 confer powers on Military Courts to try and punish any person for an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force, upon receiving a complaint of facts, upon a report in writing of such facts made b any Police Officer or any Officer of the Armed Forces and upon information received from any person other than a Police Officer or an officer of the Armed Forces. This provision should not be read in isolation of the provision as contained in paragraph 3(1) of Martial Law Order 37. Apart from the cases registered under Martial Law Regulations or Martial Law Orders other cases cannot be tried or transferred to a Military Court unless the prerequisites as mentioned above laid down in paragraph 3(1) of Martial Law Order 37 are fulfilled, otherwise working of ordinary civil Courts would come to stand still which is not warranted by law.
8. Learned counsel for the petitioners has raised many other contentions but since the petition has been accepted in view of the above discussion, therefore, I don't intend to deal with them.
Consequently the impugned order passed by the Summary Military Court convicting and sentencing the four accused persons namely Muhammad Aaqil, Liaqat Altaf, Nadeem E Durrani and Nasrullah Khan is hereby set aside being illegal and without jurisdiction. They shall be released forthwith if not required in -any other case.
9. Writ petition is accepted without any order as to costs.
10. This however, does not mean that the accused persons would r be tried by an ordinary civil Court. The case is sent to the Distr Magistrate, Rawalpindi, for being entrusted to a competent criminal Coy for trial of the accused persons according to law. Necessary record of t case will be sent by the Martial Law Headquarters to the District Magistrate Rawalpindi as early as possible.