The petitioner challenges his retrial ordered by respondent No. 1, in pursuance to a copy of the letter dated 9th November, 1978, placed on record as Annexure `C' on the ground that as he had once been discharged by an ordinary Court, and after Martial Law Administrator had refused to confirm the sentence proposed against him by the Military Court, there was no lawful authority vesting in any one to order a fresh trial .
2. The petitioner was named as an accused in a case registered under F.I.R. No. 44 dated 1st April, 1964, at P. S., Saddar Gujranwala, under section 302/138/109/149/436, P.P.C. There were 15 accused persons in all. On 3rd August, 1964, the Commissioner, Lahore Division referred the case for trial, by a Tribunal constituted under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963. A revision petition against that order succeeded to get the reference quashed. The Commissioner made a second reference on 9th September, 1965. This second reference was maintained, though an appeal, a writ petition and a special leave to the Supreme Court had been filed against the same. However, before the Tribunal could decide the matter, the case was trans--ferred to be tried by a Special Military Court.
3. Meanwhile, the case of the petitioner and 2 others was also sent to an ordinary criminal Court on 11 June, 1969, but they were dis--charged under section 209 (1) of the Criminal Procedure Code vide order dated 16th September, 1969. They were then summoned by the Summary Military Court.
There the prosecution led its entire evidence and the Military Court proposed sentences against all the accused persons. The Martial Law Administrator, however, did not confirm the sentence passed against the petitioner and 3 others vide his order dated 24th of November, 1978. He observed thatth the case of the petitioner and 3 others should be tried by the criminal Courts. It is that order which has been challenged through the present petition.
4. The learned counsel referred to Article 3 of the President's Order XIV promulgated on 8th March, 1972 to say that only such cases stood transferred to the ordinary criminal Courts as were still pending-before the Military Court. He further submitted that Article 4 of the Order empowered the Governor to confirm or not to confirm the sentence proposed by the Military Court and that he could not direct that the case of the petitioner should be tried by an ordinary Court.
5. The learned counsel also referred to section 26 of the General Clauses Act, section 403 of the Criminal Procedure Code and Article 13 of the Constitution, in support of his plea that the petitioner could not be exposed to a double jeopardy by ordering a fresh trial before an ordinary Court.
6. The learned Additional Advocate-General produced the record to show that the Governor did not confirm the sentence proposed by the Military Court against the petitioner and ordered a fresh trial by the criminal Courts. In this view of the matter, it was argued that the case of the petitioner was also to be deemed pending in the eye of law when President's Order XIV was promulgated.
7. As regards prohibition of double jeoparady under Article 13 of the Constitution, the learned Additional Advocate-General relied, on a judgment of the Supreme Court in Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi (PLD 1978 SC 121) to say that the prosecution means taking the proceedings to their logical and i.e. Resulting in either a conviction or acquittal. He further submitted that the Fundamental Rights being even not available at the moment, the petitioner cannot rely on them. As regards section 403 of the Criminal Procedure Code, he argued that it would not come to the aid of the petitioner as the order of discharge in commitment proceedings does not entitle him to avoid a- second inquiry or trial. Section 26 of the General Clauses Act, on the other hand, according to him, does not apply 2s the proceedings are not being taken under some other Act after conviction under a different Act.
8. The facts given above show that the petitioner was discharged in the commitment proceedings, which is an inquiry by a Magistrate and not a trial by the competent Court. Further the Committing Court can neither convict nor acquit. It can only send up an accused to stand trial before a competent Court as held in Krishna Reddi v. Subbamma (I L R 24 Mad. 136). The same view was taken in Queen-Empress v. Surendra Nath Sarkar (I L R 28 Cal. 397). It is also well established that a discharge does not debar fresh proceedings, which can be initiated in respect of the same offence on the same facts on a fresh complaint. See Jasua v. Emperor (AIR 1923 All. 332 (2)). The Supreme Court in Pir Badshah v. The State (PLD 1963 SC 93) observed as follows: -- " ------.It was added however that an order of discharge made after full inquiry which is not foolish and perverse, cannot be set aside and a fresh complaint or a Police report should not be made without good cause and certainly not in circumstances which make the proceedings an abuse of process of Court. The ruling cited therefore does not support the stand taken by the learned counsel in the present case. There being no legal bar to a fresh complaint being entertained after a person has been discharged by a judicial order in a case, he could become an accused person on such a complaint being preferred and then section I1 of the F. C. R. Could be pressed into service, to have him tried by a Council-of-Elders ..................That a discharge order is not a legal bar to a fresh prosecution was laid down recently by this Court in Abdul Hossain v. Suwalal Agarwala (PLD 1962 SC 242) though it was further clarified that in the case of an order of discharge passed on the merits, fresh proceedings would be improper on the same evidence that had let to his discharge. This consideration, however, would lose its force when, after the taking of cognizance, a different Tribunal tries the offender so that more material becomes available for adjudication of the guilt or innocence of the accused ............................................................................
The Privy Counicl in Yusofali Mulla Noorbhoy v. The King (PLD 1949 P C 108) in para. 14 held: - "The whole basis of section 403 (1) is that the first trial should have been before a Court competent to bear and determine the case and to record a verdict of conviction or acquittal. If the Court was not so competent it is irrelevant that it would have been competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained. This case fell under section 403 (1) and the terms of section 403 (4) do not call for discussion."
Even otherwise, the petitioner having faced his trial after discharge before the Military Court without demur or any further action would not be entitled to revert to that objection after about 9 years.
9. The only question the petitioner can raise now is about the effect of the order of the Governor refusing to confirm the proposed sentence of the Military Court and directing that his case be sent for trial to the Criminal Courts. Sections 90 and 96 of the Army Act are in terms similar to section 403 and Article 13. The bar of second trial in all those provisions is only in the event of an accused having already been acquitted for the same offence or facts. Rule 51 of the Army Act Rules empowers the Military Court to acquit the accused. The confirming officer can under section 124 mitigate, remit or commute sentences. Under section 126 of the Army Act the confirming officer can direct the Court to revise its findings or sentence. Such an order amounts to retrial to the extent it is ordered therein. Section 132 of the Army Act empowers the Central Government, Commander-in- Chief or the prescribed officer to annual the proceedings on the ground that they were illegal or unjust. The other alternative open to the confirming officer is to confirm refuse to confirm or reserve confirmation for a superior authority.
10. The record shows that the confirming officer, in this case, the Martial Law Administrator, vide his order dated 23rd October, 1971, observed as follows, when he considered the case of the - petitioner and 3 others;- "Regarding accused Muhammad Khan -son of Sardar, No. 1, Muhammad Akram son of Muhammad Sharif, No. 2, Y6usaf son of Ahmad Din, No: 5 and Muhammad Shaft son of Sultan, No. 11, the Court will remember that they have been found guilty of criminal conspiracy. The Court will note that punishment for criminal conspiracy is the same as if the conspirator had abetted the offence.
Section 109, P. P. C. Says that the punishment for abetment shall be the same as provided for the offence. In this case, according to the evidence on record, the above-named persons conspired to commit murder. And murder did take place in consequence of that, conspiracy. The Court therefore, after finding these accused guilty of criminal conspiracy, has no choice but to give the punishment of death or transportation for life with or without fine.
In this case, the Revision is necessitated only on technical reasons. The Court will revoke their sentence in respect of the accused named at para C above and award them one of the two Punish--ments as mentioned earlier."
The case of the other co-accused was also remanded and certain direction given.
11. In the retrial the Special Military Court held the petitioner guilty but awarded him 10 years' R. I. And Rs. 90,000 as fine. One co-accused was acquitted seven were awarded death sentence and the remaining four shorter sentences. The case of the petitioner was noted at serial (k). The Martial Law Administrator while confirming the sentences vide his order dated 4th December, 1971, stated as under:- "I have confirmed the findings of the Special Military Court in respect of the accused mentioned against `a' to `j' and `p' of para 1 above and the sentence awarded to the accused mentioned against `h' and `j'. I have however, not confirmed the findings and the sentence awarded to the accused mentioned against `k' to `o' who will be retried, afresh after promulgation of the sentences in this case. I have reserved the sentence of death awarded to the accused mentioned against `a' to `g' of para 1 above for confirmation by the CMLA."
It is further clear from the record that the death sentence of those condemned to death was confirmed by the Governor of Punjab, while exercising his powers under Art. 4 of the President Order No. 14 of 1972, ride his order dated 17th July, 1977. .
12. It is to be noted from the above facts that the case of the petitioner and. 4 others had been finally dealt by the Martial Law Administrator vide his order dated 4th December, 1971. The relevant portion of that order has been reproduced above. The case sent up to the Chief Martial Law Administrator was only about the confirmation of death sentence of 7 others and the same only came up for disposal before the Governor under Article 4 of the President Order No, 14 of 1972.
13. In view of the above, it is not correct to say that the Governor had refused to confirm the sentence of the petitioner under Article 4 of the President's Order 14 of 1972.. The order revising the sentence against the petitioner and 4 others was made by the Martial Law Administrator an 4th December, 1971, while the President's Order No. 14 of 1972 was enforced on 18th April, 1972. The two orders were, therefore, passed not only under different laws but had an interval of about 4 months in between. The order dated 4th December, 1971 specifically directed that the petitioner and the other four shall be tried afresh. Section 126 under which the order of the Martial Law Administrator had been passed goes u under:- 126.-(1) 126.-(1) Any finding or sentence of a Court Martial which requires confirmation may tie once revised by order of the confirming officer, and, on such revision, the Court, if so directed by him, may take additional evidence.
(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent.
(3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, in a gep9rol Court martial, it still consists of five officers or, if a field general or district Court martial, of three officers."
It was, therefore, a case pending trial before a Special Military Court on 18th April, 1972, when t President's Order No. 14 of 1972, was enforced. Article 3 of the President's Order 14 of 1972 will therefore govern the situation. It reads as under:- 3.-(1) 3.-(1) Every case pending immediately before the appointed day before a Special Military Court or Summary Military Court shall on the appointed day stand transferred to the criminal Court which would have had jurisdiction to try the offence constituted by the facts of that case under the ordinary law.
(2) A case transferred to a criminal Court under clause (1) shall be tried by it is accordance with the procedure applicable to the trial of such a case under the ordinary law."
14. In view of the above, the case of the petitioner and others shall be deemed to have been transferred to the competent criminal Court and must be decided there in accordance with law.
There is thus no merit in this petition, which is dismissed but theta will be no order as to costs. .