A case was registered against the petitioners, under M. L. Rs. 39 and 40 for holding an illegal meeting on 26-9-1978, at Police Station Cantt. Sargodha, on the ground that the meeting was attended by nearly 7/8 thousand people in the lawns of the house of petitioner No. 1, Mehr Khuda Dad Khan Lak in violation of the aforesaid provisions. This meeting, which was addressed by Miss Be-Nazir Bhutto, was organized, according to the F. I. R. As well as the prosecution evidence, by the petitioners and Mumtaz Ahmad Kahlon and Malik Muhammad Azam. According to the prosecution, the gates of the house were opened to the public and there was no restriction on entry. The people in large number attended the meeting in addition to ex-MNAs., MPAs. Of PPP and the member of the Divisional Committees and the office-bearers of the party. According to the prosecution, speeches were made at the meeting for the release of Mr. Z. A. Bhutto.
2. All the petitioners were proceeded against under the relevant provisions of Martial Law Regulations for having violated M. L. Rs. 39 and 40. They were found guilty and sentenced to undergo R. I. For one year each on 28-9-1978.
3. The petitioners have admitted in their statements made in defence before the Military Court that invitations were only issued to the members of the Divisional Working Committee by the Secretary General, PPP, Punjab. One of the invitations has been Exhibited as 'N'. According to them, it was a restricted meeting which was held within the four walls of the house of petitioner No. 1. It has been stated that workers had been posted at the gate of the house to restrict entry. According to the petitioners, the number of the members of the Working Committee of Sargodha Division is about 9/10 thousand, out of which about 7/8 thousand members attended the meeting. According to them it was not a public meeting and the public at large was not allowed to attend the same.
Petitioner No 1, Mehr Khuda Dad Lak has further stated that the meeting was arranged under the impression that relevant Martial Law Regulations allowed the meeting of the members of the political parties within a house. It has been further stated that since there is no restriction on the number of members of the Working Committee, therefore, Divisional Working Committee comprises of 9/10 thousand persons.
4. Exh. `N', an invitation to Malik Zafar Ali Tiwana from Sargodha, shows that a meeting of- Divisional Committee of Sargodha Division was called for 26-9-1978 at 11-30 a.m. At the residence of Mehr Khuda Dad Lak, wherein Miss Be-Nazir was to participate.
5. It has been argued by Raja Muhammad Anwar, learned counsel for the petitioners that members of Working Committees of various units in Sargodha Division bad been invited vide Exh. `N' to attend the meeting. According to him since Sargodha Division has a large membership of PPP and there being no restriction on the number of members . Of the Executive Committee, nearly 9/10 thousand persons have been nominated as members of the Executive Committee at various levels. He has argued that as such there has been no violation of Martial Law Regulations Nos. 39 and 40 which provide for holding of close-door meeting of members - of Executive Committees of a political party. Such meetings can be held under M. L. R. 40 in a building other than a temporary structure or enclosure or a building used or intended to be used or connected in any manner with any Educational Institution, places of public entertainment, worship or religious sanctity. In the present case it is admitted that the meeting was held in the lawns of a house within its four-walls. It is contended that the number of the members of the Executive Committees who attended the meeting was large enough because they had come from every nook and corner of Sargodha Division. According to Raja Muhammad Anwar, Sargodha Division has large number of PPP units at city, District, Tehsil, Town and even Mohallah level and since every unit has its own Working Committee, therefore, members of Executive Committees of all such units had been invited.
6. Exh. 'N' however shows that the meeting was only confined to the members of the Divisional Committee, Sargodba Division and the members of Executive Committees of each and every unit of Sargodha Division had not been invited. It is true that the petitioners have taken up the plea in their statements made in defence before the *Military Court that number of members of the Divisional Committee, Sargodha Division is 9/10 thousand out of which 7/8 thousand attended the meeting. The record shows that the invitations had been extended only to members of the Divisional Committee whose strength cannot be in thousands. The learned counsel for the petitioners has not been able to give exact number of members of the Divisional Committee when asked. If any record had been maintained to that effect at the Divisional level, the same would have been produced in the Court at the time of bearing. It is not possible to believe that strength of Working Committee can be in hundreds or thousands. If it is so then number of members of Council of a political party may be in lakhs. In that case every ordinary member enrolled may be treated as a member of the Council which cannot be warranted by any Constitution of a political party. Even the strength of Central Working Committee of the political party to which the petitioners belong may be at the most in-between fifty and one hundred. As such it is inconceivable that strength of Divisional Working UDA DAD KHAN V. MARTIAL LAW ADMINISTR ZONE "A", PUNJAB (Zakluddin Pal, J)
Committee is nine or ten thousand. The plea of the petitioner, therefore in the circumstances cannot be accepted and has been rightly repelled by the Military Court. Perhaps due to this reason Raja Muhammad Anwar learned counsel for the petitioners has taken a different stand that the meeting was attended by the members of the Workibg Committees of PPP at District, City, Town, Tehsil, village and Mohalla level and that was why the number swelled to 7/8 thousands.
7. This all shows that a large number of people who attended the meeting were not members of the Divisional Committee as invitations had been extended to members of that Committee alone and nobody else. The allegation, therefore, as made in the prosecution evidence to the effect that there was no restriction imposed upon any person for attending the meeting appears to be correct. If hundreds, and thousands of persons are shown to be members of an Executive Committee then purpose of the aforesaid provision of law would be defeated. It is true that the words such as "meetings" and "Executive Committees" have been used in para. 2 of the .Martial Law Regulation No. 39 as amended by Martial Law Regulation No. 40. It provides an opportunity to various political parties to hold close door meetings of Executive Committees of its units at different levels but that does not mean that meeting of such members of the Executive Committees can be turned into a public meeting. Further meeting in question was held in the lawn of the house which is not part of the building. According to M. L. R. 40 such meeting has to be close door in. a building other than a temporary structure or enclosure. It is true that the lawn is situated within the four- walls of the house but . Outside the main building. The very words `close door' used in the provision indicate that it can only be held under a roof inside the building and enclosures like lawns though bounded by walls cannot be used for that purpose. The meeting as such was held in violation of M.
L. Rs. 39 and 40.
8. Para. 1 of Martial Law Regulation 39 lays down that no person or a political party shall participate in political activity except to the extent as provided for in paras. 2 and 3 which have been discussed above. The tenor of the whole provision as contained in Martial Law Regulation No. 39 as amended by Martial Law Regulation No. 40 shows that restricted political activity up to the extent of meetings of Working Committees has; been allowed and not to the extent as canvassed by the learned counsel for the petitioners. If a meeting comprising nine-ten thousand people is_ allowed to be held under M. L. Rs. 39 and 40 then there was no occasion to use the words "meetings of Working Committees" in the aforesaid provision. Use of such words shows that political activity would be confined to a small number of persons.
9. Since the meeting held on 26th of September, 1978 was virtually a public meeting arranged by the petitioners in violation of the aforesaid B Martial Law Regulations, therefore, they have been rightly found guilty of the offence committed by them.
10. It has been contended that since the abstract of the evidence produced against the petitioners was not prepared and supplied, therefore, trial stands vitiated. I am afraid this contention has no force. In this case no preliminary inquiry as contemplated by rule 13, Chapter IV of Pakistan Army Rules was ever conducted and as such there was no evidence already recorded which was likely to be produced against the petitioners. However, copy of the charge levelled against the petitioners was handed over to them before the start of the trial and it contains abstract of evidence to be produced against them.
11. Chapter IV of Pakistan Army Rules provides for investigation of charges, minor punishments and trial by Court Martial. Section 1 thereof deals with investigation of charges and remand for trial. It also deals with power of Commanding Officer. Rule 13 thereof provides that every charge against a person subject to the Act, shall be heard in the presence of the accused who will have full opportunity to cross-examine and to call any witness and to make any statement in his defence.
Sub-rule (2) thereof provides that the Commanding Officer shall dismiss a charge brought before him if in his opinion the evidence does not show that some offence under the Act has been committed and may do so if in his discretion he thinks otherwise to proceed with the charge, then he shall either
(i) dispose of the case summarily ; or
(ii) refer the case to the proper Military Authority ; or
(iii) adjourn the case for the purpose of having the evidence reduced to writing ;
(iv) If the accused is under the rank of Warrant Officer, order his trial by Summary Court Martial.
Sub-para. (3-A) provides that when the case is adjourned for the purpose of having the evidence reduced to writing the Commanding Officer shall either order a summary of evidence to be taken or require an abstract of evidence to be prepared in accordance with rule 13-A.
12. Sub-para. (4) provides that while recording summary of evidence to be taken, the evidence of the witnesses who were present and gave evidence before the Commanding Officer, whether against or for the accused shall be taken down in writing.
13. Sub-para. (1) provides that the Commanding Officer may at any time during the course of investigation, direct a person subject to the Act to be produced before any Magistrate of the First Class for the purpose of having his statement, or confession to be recorded. Under the note of the rule it is provided that while deciding whether a charge under section 55 should be proceeded with, the Commanding Officer must consider whether the alleged offence is or is not prejudicial both to good order and Military discipline. Under para. 3 of the note in elaboration of sub-para. (ii) it is provided that except as provided in rule 15, a summary of evidence is to be recorded in every case whether it is intended to remand the accused for trial by general or field general or District Courts Martial: It is further provided that in the case of Summary Court Martial, summary of evidence need not be recorded, if it is intended to try the accused forthwith without reference to superior authority, either because the case admits of this or because of such grave necessity as is referred to in proviso (b) to sub-rule (3) of rule 13.
14. Sub-paca. 3 of the note provides that the summary of evidence, or a true copy thereof, should accompany the application for a general or District Court Martial or summary disposal by superior authority, or for sanction to hold a Summary Court Martial when such sanction is necessary.
15. Rule 14 provides that the evidence and statement taken down in writing in pursuance of rule 13 shall be considered by the Commanding Officer who thereupon shall
(i) either remand the accused for trial by Court Martial ; or
(ii) refer the case to the proper superior Military authority ; or
(iii) if he thinks it desirable, re-hear the case and dispose of it summarily.
Sub-rule (2) of rule 23 of the Rules provides that in any case not less than 24 hours before his trial, an officer shall give to him gratis a copy of the summary of evidence or an abstract of evidence.
The reference to summary of evidence or abstract of evidence in sub-para. (2) of rule 23 is to be recorded by the Commanding Officer during the investigation of a charge and further as discussed above such summary or abstract of evidence is not to be prepared in the case of Summary Court Martial if it is intended to try the accused forthwith without reference to higher authority.
16. In the present case there being summary trial by the Military Court, summary or abstract of evidence was not required to be supplied to the accused. Further it is admitted on record that charge levelled against the petitioner was never investigated by any competent Army Officer before the start of the trial. Since there was no investigation or preliminar C inquiry under rule 13 referred to above with regard to the allegation levelled against the petitioner before his trial started, therefore, question of supplying his summary or abstract of evidence did not arise. The objection, therefore, raised by the learned counsel in this behalf having no force is hereby repelled.
17. It may be mentioned here that in spite of irregular procedure having been followed in certain cases, finding given by the competent military authority would be deemed to be valid, notwithstanding any deviation from the rules as provided by rule 132 of the Pakistan Army Rules.
18. Rule 113 of the Rules provides that an accused person may have a person to assist him during the trial whether a legal adviser or any person who would not be allowed to examine or cross- examine witnesses or address the Court. It is contended that the Summary Military Court neither allowed the next friend to assist the petitioners nor allowed them to examine any person in defence. Attention of the Court has been drawn to three separate applications filed by the petitioners before the Military Court for the purpose of adjournment of the case so as to enable them to consult their respective counsel. All the three applications were dismissed mainly on the ground that it was not always necessary for the Summary Military Court to provide assistance of a counsel or a next friend under Rule 113 of the Army Rules to an accused person. It was further observed by the Court in its order while dismissing the applications that since Jamil Akhtar was an experienced lawyer himself who knew the implications of the charge, therefore, there was no need to allow the petitioners to have assistance of their next friend. It is contended that since the provision as contained in rule 113 is mandatory, therefore, in the absence of the aforesaid facility the whole trial vitiates.
19. The record shows that every P. W. Has been cross-examined at length by Jamil Akhtar one of the petitioners and all possible questions which could be put by the petitioners to the witnesses have been put by him.
The main question to be examined in such case is as to whether any prejudice has been caused to an accused person by not allowing him to avail of the opportunity/facility otherwise provided by law. It is true that the defence should be provided every opportunity warranted by law but as discussed above if non-provision of such opportunity does not cause any prejudice then the trial should not vitiate. All the P. Ws. Have been cross. Examined at length by Jamil Akhtar petitioner who is a lawyer by profession. All possible questions in the given circumstances of the case have been put to the P. Ws. To cross-examination. As such no prejudice has been caused to the petitioners and their case has not been adversely affected by not allowing their next friends to assist them.
20. The petitioners filed three separate applications for summoning more than two dozens of defence witnesses each. They were asked by the Military Court as to what sort of statements were likely to be made by the said witnesses but according to the order disposing of the aforesaid applications the petitioners failed to give any reason for summoning large number of defence witnesses. They also failed to give the names of few of the aforesaid D. Ws. Who could be summoned by the Court. If a party to the proceedings wants to prolong the trial by summoning large number of unnecessary witnesses, the Court will be justified in asking that party to show as to what is to be deposed by them. There was no occasion to summan about two dozens of witnesses in defence by every petitioner. If the witnesses had been examined in defence according to the lists submitted by the petitioners then the trial would have been prolonged unnecessarily on account of the examination of more than sixty witnesses.
21. An accused has a right to examine witnesses in defence under rule 481 of the Pakistan Army Act Rules but if such evidence has been improperly rejected or refused to be summoned then under para. 119, Part I of Chapter V of Army Act it will have to be seen whether on account of the119 rejected evidence, decision would have been different from the one already made. This provision is similar to section 167 of the Evidence Act. I am off the view that non-summoning of the defence witnesses will not make any difference as it will not vary the decision already made by the Military Court in view of the discussion made in paras. 6 to 9 above. It has been admitted by the petitioners in their statements that seven/eight thousands persons attended the meeting and it is not possible to believe in the circumstances discussed above that nine/ten thousand persons can be members of Executive Committee of Sargodha Division. Actually a public meeting was held under the garb of a meeting of the Executive Committee. On that view of the matter no prejudice has been caused to the petitioners on account of non-production of the defence witnesses.
22. The present petition is neither appeal nor revision. It is a petition for judicial review of the order of conviction passed against the petitioners. The evidence produced on record cannot be re- appraised. It is only to he seen whether there is material on record which connects the petitioners with the E offence alleged to have been committed by them. The above discussion would show that there is material on record connecting the petitioners with the offence alleged to have been committed by them.
23. Consequently the petition fails and the same is hereby dismissed without any order as to costs.