Muhammad Manzoor Ahmad Ayaz, a Head Clerk in the Government College of Science, Bosan Road, Multan, was tried by Summary Military Court, Multan for an offence reported on 27-10-1977, registered at Police Station, Naulakha, Lahore vide F. I. R. No. 374 of 1977 under sections 419, 420, 468 and 511, P. P. C. The Summary Military Court charged him on the facts disclosed in this F. I. R. For an offence under Martial Law Regulation No. 17, convicted and sentenced him. The petitioner has challenged the conviction and the sentence on two grounds: Firstly, that there was a history of personal malice of respondent No. 1, Lt.-Col. Muhammad Ajmal, Sub-Martial Law Administrator, Multan, who tried the offence. Secondly, the Summary Military Court at Multan had no territorial jurisdiction over the offence committed in Lahore.
2. As regards the first ground, facts stated in an earlier Writ Petition. No. 2316 of 1977 have been referred to. A month before the registration of the case for which the petitioner was tried, convicted and sentenced by respondent No. 1, he had filed a constitutional petition alleging that Lt: Col. Muhammad Ajmal, respondent No. 1, had coerced him into executing a promote and also directed him to make the payment of money to a private party the dispute arising out of a civil dealing with him. His exercise of this power was challenged and was pending when the case was registered at Lahore and the respondent No. I having no territorial jurisdiction over the matter took the case himself and convicted and sentenced him. Reliance for second legal objection is made on para. 6 of Martial Law Order No. 4 read with Instruction No. 7 dated 11-7-1977. Section 6 authorises the Martial Law Administrator to empower any officer of the armed forces of Pakistan to hold a Summary Military Court in the Zone concerned for trial of offence under Martial Law Regulations or offences under any other law for the time being in force for the contravention of Martial Law Orders.
Exercising this power, the Martial Law Administrator issued Instruction No. 7, establishing a number of Special Military and Summary Military Courts. The Special Military Courts were established by reference to civil divisions and the Summary Military Courts were established by reference to districts. Summary Military Court No. 10 was notified in the following manner :-
(p) Summary Military Court No. 10 Jurisdiction : Multan District.
President: Major Ghulam Ahmad."
3. As against this the learned Assistant Advocate-General relics on section 93 of the Army Act which empowers a Co art Martial to be held at any place in Pakistan.
4. When this writ petition came up for hearing , before me on 28-10-1978, it was found that Major Ghulam Ahmad who was conferred with the jurisdiction of presiding over the Summary Military Court No. 10, had not been impleaded as a party to the proceedings and in his absence as a party allegations of mala fide made against Muhammad Ajmal could be of no avail. On this the learned counsel sought permission to get the petition amended which he has amended and the learned Assistant Advocate-General was given notice of it and also an opportunity to receive instructions it is not on the ground of mala fide that I propose to deal with this petition for the earlier matter had been dealt with by respondent No. 1 while respondent No. 3 who has now been impleaded is not shown to be under him for the performance, of the judicial function though it is definitely' shown that he enjoys a subordinate rank. This petition is being dealt with only on the question of territorial jurisdiction of a statutory Tribunal.
5. It is admitted and is also borne out from the record that the case for which the petitioner was tried at Multan, was registered at Lahore at Police. Station Naulakha. The Magistrate at Lahore had for the purpose of remanding the petitioner in that case to the police custody taken cognizance of the matter. Thereafter the accused was removed to Multan and tried by the Summary Military Court No. 10 presided over by Major Ghulam Ahmad. The power of the Martial Law Administrator under Para, 6 of the Martial Law Order No. 4 is confined to the establishment of Military Courts within the Zone and is expressed here under: "6. Summary Military Courts.---Martial Law Administrator may, by general or special order, empower any officer of the Armed Forces of Pakistan to hold a Summary Military Court in the Zone concerned for trial of offence under Martial Law Regulation or offences under any other law for the time being in force or for contravention of Martial Law Orders."
The power to empower any officer of the Armed Forces to hold a Summary Military Court in the Zone will of necessity, include a power .To establish "for a part of the Zone as well". By using the word `jurisdic--tion" in the words establishing the Summary Military Court No. 10 and indicating against it Multan District, it was made clear that the jurisdiction of the Summary Military Court No. 10 was to be co-extensive with the matters arising within the territorial limits of Multan District. Such defining of the jurisdiction was necessary because such Court had to be established either by the nature of cases or by territorial description. The jurisdiction of one had to be defined as against every other.
6. I find, therefore, that the trial of the petitioner by Summary Military Court No. 10 at Multan was without lawful authority and of no legal consequence. The petitioner has suffered the substantive sentence but this declaration is granted to him in order to make available to him further remedies against an order to make available to him further remedies against an order passed without lawful authority. The petitioner shall have the costs of the proceedings as well.