Six petitioners, namely 1. Mirza Ikram Beg, ". Sheikh Abdul Ghafoor,
3. Iftikhar-ul-Haq,
4. Ashiq Ali, 5.
Ehsanul Haq Mohsan and 6. Khawaja Abdul Jabbar were tried by Summary Military Court No. 37, Lahore, for offences under Martial Law Regulations Nos. 13 and 33. They were all convicted by the said Court on 16th August, 1979 and sentenced to three months' rigorous imprisonment each.
The petitioners have assailed their sentence and conviction by means of this writ petition. This judgment will dispose of the same.
2. It has been alleged by the prosecution that the accused attempted to bring into hatred and contempt members of Armed Forces of Pakistan on 14th August, 1979 at 7-15 p. m. When they raised objectionable slogans and that on the same day and at the same time they attended a procession of a political nature contrary to the provisions of Martial Law Regulation No. 33. A formal F. I. R. No. 109 of 1979 (Exh. M) was registered against them at Police Station Lohari Gate at the instance of Muhammad Jaffar Shah, P.W.1.
3. Record of the case has been produced by Mr. Khalilur Rehman Ramdey, learned Assistant Advocate-General and the same has been perused with the help of learned counsel for the parties and arguments heard.
4. Muhammad Jaffar Shah, A. S. L, P. W. 1, stated that General Secretary, Pakistan People's Party General (Retd.) Tikka Khan was present at the house of petitioner No. 1 at 7-15 p. m. And when he came out along with the petitioners accused persons they raised objectionable slogans (these slogans need not be reproduced). A procession of about 1400/1500 persons was formed at the residence of petitioner No. 1. This procession proceeded towards Paniwal Talab raising objectionable slogans while this witness lodged the formal F. I. R. At Police Station, Lohari Gate. This witness admitted during cross-examination that it was an Iftar Party which was being held at the house of petitioner No. 1. He also admitted that the name of petitioner No. 1 was not mentioned in the F.
1. R. As the person who raised any slogan on the occasion.
Muhammad Boota, P. W..2, is an Ice -Cream Vendor. He stated that about 500 people were present to take out a procession of General (Retd.) Tikka Khan near the house of petitioner No. 1 and that they were raising objectionable slogans. During cross-examination he admitted that he saw the accused persons for the first time in the procession .And that he had never seen them prior to 'his occurrence. He was unable to disclose their names. According to him, his statement was recorded by the police on the next day. He appears to be a stock witness of the police as according to his admission in the cross-examination he had appeared as a police witness in 10/15 cases. He also was not sure whether General (Retd.) Tikka Khan had arrived at the place of occurrence or was about to leave at 7-15 p. m.
Muhammad Siddiq, P. W. 3, is also an Ice Cream Vender. This witness did not support the case of the prosecution. He was unable to identify any of the accused in the case.
5. On the last date of hearing learned counsel for the petitioner submitted that he was personally conducting this case 'before the Military Court and that he had submitted an application giving a list of witnesses which were to be produced on behalf of the defence. This application was presented by him to the Presiding Officer, Summary Military Court No. 37, Lahore. The Presiding Officer rejected this application by a verbal order and placed the same on the file. The record of the case has been perused. The said application is not forthcoming. Mr. Khalilur Rehman Ramdey, learned Assistant Advocate. General,' was directed to contact the Presiding Officer and seek his comments upon the aforesaid submission of the learned counsel for the petitioner. Learned Assistant Advocate-General was not able to file the comments of the Presiding Officer today. In the circumstance I take this contention of the learned counsel for the petitioner to be correct and proceed to decide the matter accordingly. I would have liked to give further time to the learned Assistant Advocate-General but the petitioners have already undergone substantial portion. Of the sentence and any further adjournment would have defeated the very. Purpose of this writ petition. .
6. A perusal of the file also reveals that some of the accused in this case namely Mirza Ikram Beg, petitioner No. 1, Sheikh Abdul Ghafoor, petitioner No. 2, Mr. Iftikbar-ul-Haq, petitioner No. 3, were not even asked whether they intended to call .Any witness in, their defence. At-least the record is silent about this. Khawaja Abdul Jabbar, petitioner No,. 6, specifically asked for the production of three witnesses on his behalf. There is nothing op the file to indicate whether this request of the petitioner/ accused was considered by the Presiding Officer:
7. Mr. Khalilur Rehman Ramdey, learned Assistant Advocate-General, relied upon a declaration by Brigadier Sub-Martial Law Administrator which appears to have been made under the provisions of Pakistan Army 'Act, rule 26 whereby 'the operation of rule 24(1) was suspended for the purpose of this trial.
8: It will be pertinent to reproduce the relevant Rules (Pakistan Army Act Rules 1954).In order to appreciate the position of law in the case: Rule 2.4.-(1) The accused, before he is arraigned, shall by informed by an officer of every charge on which he is to be tried ;and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed of the charge against him and his arraignment shall be such as to allow to consider his defence, and shall not, in any case, be less than twenty-four hours".
Rule 26.-Wbere it appears to the officer convening a court-martial, or to the Senior Officer on the spot, that military exigencies, or the necessities of discipline, render it impossible or inexpedient to observe any of sub-rules (4), (5), (6), ('7) and (8) of, rule -13 or rules 14, 15, 23, 24 and sub-rule (2) of rule 81 he may, by order under his hand, make a declaration to that effect specifying the . Nature of such exigencies or necessities, and thereupon the trial or other proceedings shall be valid as if the rule mentioned in. Such declaration had not been contained herein. Such declaration may be made. With respect to any or all of the aforesaid rules in the case of the same court martial ; '
Provided that the accused shall have full opportunity of making his defence, and shall be afforded every facility for preparing it which is practicable, having due regard to the said exigencies or necessities."
9. Rule 24 of the Pakistan Army Rules specifically lays down that the accused, before he is arraigned would be informed by an officer of every charge on which he is to be tried and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps would be taken for procuring their attendance. It is further provided that interval between his being so informed of the charge against him and his arraignment would be such as to allow his defence to be considered and that would not in any case be less than twenty-four hours. This Rule is mandatory in nature. It gives a very valuable right to an accused person to adduce his evidence in defence and once he gives a list of witnesses whom he desires to produce in his defence, the Authorities trying him 'are duty bound to take all reasonable steps for procuring the attendance of these witnesses. It is also provided that reasonable time would be allowed for the consideration of the defence evidence. The provisions of this Rule, however, may be suspended in certain special circumstances. These circumstances have been given in Rule 26. This rule provides that where it appears to the officer convening a court-martial or to a senior officer on the spot that military exigencies or the necessities of discipline render it impossible or inexpedient to observe any of the sub-rules (4), (5), (6), (7) and (8) of rule 13 or rules' 14, 15, 23, 24 and 81(2) he may by order under his hand make a declaration to the effect specifying the nature of such exigencies and necessities.
Proviso to this Rule, however, lays down that in spite of the suspension of the Rules referred to above the accused shall have full opportunity of making his defence and shall be afforded 'every opportunity for preparing. It which is practicable having regard to the said exigencies or necessities. .,
9. Rule 13 deals with disposal of charge against a person other than an officer and adjournment for taking down the summary of evidence and abstract of evidence. Rule 14 deals with the remand of an accused person while rule 15 lays .Dowel that when an officer is charged with an offence under the Pakistan Army Act the investigation shall, if he requires it, be held and evidence recorded in his presence in writing in the manner prescribed by rule 13. According to Rule 23 an accused person shall. Be afforded appropriate opportunity for preparing his defence and should be allowed free communication with his witnesses and with any friend, defending officer or legal advisor whom he may choose to consult in this connection. Rule 81(2) deals with the right of an accused person to have the services of a defending officer.
10. For the purpose of the present case the relevant Rules as narrated above are rules 24 and 26. In the instant case operation of rule 24 has been suspended by S. M. L. A. By a declaration. Made on 16th August, 1979. It would be appropriate to reproduce this -declaration. It reads as under .
"I. P. A.-4505. Brig: Muhammad Akhtar Khan under the provisions of P. A. A. Rule 26 hereby declare that present case in respect of the following accused persons being an agitational case having repercussions on public at large and. It requires expeditious disposal in the public interest, P. A. A.
Rule 241) is hereby suspended .For the purpose of aforesaid trial :-
(1) Mirza Ikram Beg son of Haji Ahmed Beg.
(2) Sheikh Abdul Ghafoor stun of Mian Muhammad.
(3) Iftikhar ul Haq son of Abdul Haq.
(4) Ashiq Ali son of Ahmed Din.
(5) Ehsan-ul Haq Mohsan saw of Ikram-ul-Haq.
(6) Khawaja Abdul Jabbar son of Abdul Wahid."
Admittedly this declaration has been made under rule 26. The crucial words occurring in this Rule are 'military exigencies or the necessities of discipline'. The officer convening a court-martial or a senior officer on the spot may suspend with the various facilities and rights conferred upon an accused person under rule 24 if military exigencies or the necessities of discipline render it impossible or inexpedient to observe the provisions of rule 2.4.
11.. The terms 'military exigencies' or 'necessities of discipline' have note been defined in the Act or the Rules. They are not terms of art. They mean pressing state of circumstances or pressing necessity. Military exigency t would, therefore, mean necessity pertaining to Army or members of Armed Forces. Necessities of discipline would mean matters of training and order maintained and observed amongst . Members of the Armed Forces calling for immediate action. The terms clearly contemplate a situation where the compliance of rule 24 and the providing of the requisite protection and facilities to the accused is impossible or inexpedient. It clearly relates to a situation where necessities of discipline in the Armed Forces (military personnels which are governed by the Pakistan Military Act and the Rules framed thereunder) require speedy trial and punishment. In my opinion the terms 'military exigencies' or the 'necessities of discipline' as used in rule 26, relate to the trial of persons who are subject to the Pakistan Army Act and the rules framed thereunder. In other words it is applicable to the member (s of Armed Forces. I am fortified in this view by the commentary in the Manual of Pakistan Military Law, 1957 (Volume l) published by the Government of Pakistan, Ministry of Defence (Reprint 1975). It will be pertinent to reproduce Notes 2 and 3 (page 332)
"2. The power conferred by this rule should rarely be exercised, except on active service and then only if absolutely necessary. Occasionally it may be necessary to resort to it in the case of embarkation or on the line of march, or possibly in an . Extreme case where the necessities of discipline require speedy trial and punishment.
In exercising the power conferred by this rule, it is not necessary to dispense with all the provisions mentioned, e. g. It may be expedient to comply with the relevant provisions of rule 13 but not with rule 23.
If rule 13(4), (5), (6), (7) and (8) are suspended, steps must be taken to inform the accused beforehand of the nature of the charge, the names of the witnesses and the purport of their evidence, and the Court must take care that the accused is not prejudiced by reason of the suspension, as, for instance, by not having received a summary of evidence.
The power of dispensing with rule 23(1) is intended to be exercised only where it is necessary to try a person before he can communicate with a witness or friend at a distance. The rule should never be dispensed with except in extreme cases, and even then the accused must be allowed free communication with any witness or friend upon the spot.
Rule 24(3) should always be complied with and rule 24(1) and (2), I not complied with within the time therein mentioned, should be complied with as long as possible before the Court assembles.
(3) The accused will not have full opportunity of making his defence unless he receives in reasonable time the information mentioned above ; and if he requests a reasonable adjournment in order to consider the witnesses' evidence, or to acquaint himself with the charge, or requests the postponement of the cross-examination of a witness the Court should grant the request and may adjourn for the purpose. A refusal might be held to be non-compliance with this proviso and thus to invalidate the trial. For the same reason, the Court even in the absence of such request, must take care that the accused is not prejudiced by being taken by surprise, either by the charge or by the evidence of the witnesses."
12. It is, therefore, clear that tae power conferred by this Rule would be exercised only in exceptional cases and that too in respect of persons or active service calling immediate disciplinary action and punishment.
The form of Declaration for suspension of Rules under Rule 26 a. Given in the 3rd Appendix to the Pakistan Army Act Rules require the Convening Officer to specifically mention the military exigency which has rendered it impossible or inexpedient to observe the provisions of the Rules. The Declaration in the instant case reproduced above refers to this as agitational case having repercussions on public at large requiring expeditious disposal in public interest. I am afraid none of these considerations are relevant for the suspension of relevant Rules under Rule 26 as they have no relation to military exigencies or the necessities of discipline of members, of Armed Forces.
13. I accordingly hold that the power conferred by rule 26 has reference to persons on active service and then only if absolutely necessary. Even. With regard to persons on active service it should be resorted to in the case of military exigencies or the necessities of discipline such as in the case of embarkation or on the line of march, or possibly in cases where the necessities of discipline require speedy trial and punishment. It has no reference to civilians/persons (as the petitioners ' in the present case) who are not subject to Pakistan Army Act or the Rules framed thereunder.
14. In view of the above discussion I hold that there was no justification for the suspension of rule 26 in this case which related to the civilians who were not subject to the Pakistan Army Act and Rules framed thereunder. I also hold that the non-compliance with the provisions of rule 24 had deprived the petitioners of their defence. Their case had been prejudiced beyond cure. Moreover it appears that due notice had not been taken of proviso to rule 26 which provides that the accused should be given full opportunity of making his defence and afforded every facility for preparing it: There is nothing on the record to indicate that such a facility was provided to the petitioners. On the other hand, as noted above, some of the accused (Mirza Ikram Beg, Sh. Abdul Ghafoor, Iftikhar-ul- Haque) were not! Even asked whether they wanted to call any witness in their defence.
15. Apart from this the prosecution evidences in this case does not inspire confidence. Muhammad Jaffar Shah, A. S. I. Admitted during cross-examination that it was an Iftar Party which was being held at the house of petitioner No. 1 and that the name of this petitioner was not mentioned in the F.1. R. Exh. L. Muhammad Boota and Muhammad Siddique the two public witnesses 'are Kulfi Farosh (ice-Cream Venders). They are the kind of persons who would easily succumb to the influence of the police.) Muhammad Boota, P.- W. 2, saw the-petitioners accused for the first time in the procession. He had not known them earlier. He did not know their names. He appears to be a stock witness of police. According to him he had appeared as a witness in 10/15 cases prior to this occasion. He was not sure whether General (Retd.) Tikka Khan was about to leave or had just come at the place of occurrence. Muhammad Siddique, P. W. 3 did not support the prosecution at all. He did not remember the faces of the petitioners accused present in Court, nor was he able to identify them. In my view no reasonable person would convict the petitioners on the kind of evidence adduced by the prosecution in this case.
17. In these circumstances I hold that the trial and subsequent' conviction of the petitioners by the Summary Military Court is illegal and, l without lawful authority. The same is accordingly set aside.
The petitioners are set at liberty forthwith unless they are wanted in some other criminal case. This writ, petition is accepted.
There would be no order as to costs. s. A. H.