MUHAMMAD SIDDIQ, J.-The appellants in the present case as well as in the connected appeals (I.-C.
A. Nos. 146, 153, 154, 156 and 158 of 1978) were tried, convicted and sentenced by the Summary Military Courts for various offences allegedly committed by them. They challenged their convictions and sentences before this Court by invoking the Constitutional jurisdiction under Article
199. Their writ petitions have been dismissed by the learned Single Judges. Against those orders they have filed the present MILITARY COURT No. 2, LAHORE (Muhammad Siddiq, J)
Intra-Court Appeals. This judgment will dispose of all the above-mentioned connected appeals.
2. The preliminary question which arises for consideration in all these cases is whether an Intra- Court Appeal is competent against the order of a Single Judge passed under Article 199 of the Constitution against the order of a Summary Military Court.
3. In order to properly appreciate this legal point, let us examine the relevant provisions of the Law Reforms Ordinance No. XII of 1972 and Chief Martial Law Administrator's Order No. 4 (hereinafter referred to as Martial Law Order 4) and other relevant Martial Law Orders.
4. The Law Reforms Ordinance No. XII of 1972 was promulgated on 14-4-1972. Section 3 of this Ordinance inter alia provided that no appeal under the provisions of any Letters Patent, as applicable to a High Court, could be entertained by such High Court. However, any appeal which was pending immediately before the commencement of this Ordinance was saved. The said Ordinance was amended subsequently vide Ordinance No. XXXIV of 1972 by which section 3 was substituted and was deemed always to have been so substituted, as under : "3. Appeal to High Court fn certain cases.-(1) An appeal shall lie to a Bench of two or more Judges of a High. Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court.
(2) No appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the rehabilitation and settlement of displaced persons or from an order so made under sub-paragraph (i) of paragraph
(b) of that clause.
(3) Nothing contained in this Ordinance shall be construed as affecting (a) any appeal under the provision of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 197.:."
The Law Reforms Ordinance was further amended by Law Reforms (Amendment) Act VIII of 1972 when section 3 was again substituted retrospectively as under : "3. Appeal to High Court in certain cases.-(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub paragraph (i) of paragraph (b) of that clause Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
Law Reforms (Amendment) Act VI of 1975 further amended section 3 of the said Ordinance in the following terms : "In the Law Reforms Ordinance, 1972 (XII of 1972) in section 3, in subsection (2)
(a) for the words, brackets and figures 'clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan' the words, brackets and figures 'clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan' shall be substituted ;
(b) in the proviso,
(i) for the figure '201' the figure '199' shall be substituted ; and
(ii) after the words 'one appeal', the words 'or one revision or one review' shall be inserted."
Section 3 of the Law Reforms Ordinance, 1972, as amended uptodate thus reads as under : "3.-(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance, shall be construed as affecting,
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1903) which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
5. The various Military Courts of criminal jurisdiction functioning at present under the Martial Law were not established under the Pakistan Army Act, 1952, but under the Martial Law. The Chief Martial Law Administrator's Order No. 4 (M. L. O. 4) deals with various Military Courts of criminal jurisdiction.
This Order was subsequently amended by Martial Law Orders 16, 37, 40 and 44. Paragraph 6 of M. L.
O. 4 deals with Summary Military Courts. According to paragraph 7 of this Order, a Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952, and the provisions of that Act and Rules made thereunder were made applicable to and to govern all such proceedings with certain provisos.
Since the learned Advocate-General relies upon clause (d) of proviso to this paragraph, paragraph 7 is reproduced below : "7. A Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952 and the provisions of that Act and Rules made thereunder shall apply to and govern all such proceedings ; provided that :
(a) Section 88 of the Pakistan Army Act which provides that the proceedings of a Summary Court Martial shall be attended by two officers or two Junior Commissioned Officers or one officer and one Junior Commissioned Officer shall not apply to the proceedings of a Summary Military Court.
(b) The Court shall not be required to record more than a memorandum of the evidence or to frame formal charges.
(c) The Court may award any of the punishments or combination thereof as prescribed under Martial Law Order No. 5, except that of death, amputation of hand, imprisonment for life, rigorous imprisonment exceeding one year or whipping exceeding 15 stripes.
(d) The proceedings of Summary Military Court shall, without delay, be forwarded to the Martial Law Administrator of the Zone concerned for review Provided that a Martial Law Administrator of a Zone, if he deems necessary for expeditious disposal of cases, may direct a Deputy Martial Law Administrator in his Zone to review and countersign the proceedings of Summary Military Courts."
6. The Martial Law Administrator, Punjab, Zone 'A' issued Martial Law Instruction No. 8 which deals with the arrest, investigation, conduct of trial by the Summary Military Courts and disposal of mercy petitions, if any. Clause (q) of paragraph 5 of this Instruction deals with review and says that proceedings of Summary Military Court under clause (d) of proviso to paragraph 7 of M. L. O. 4 are required to be submitted to the Martial Law Administrator of the Zone for review and counter signatures. Under section 128 of the Pakistan Army Act, 1952, read with rule 116 of Pakistan Army Act Rules, 1954, the proceedings of the Summary Military Court/ Summary Court Martial are forwarded for review to the Reviewing Authority, who if he considers that justice has been done, should countersign the same. The Reviewing Authority can, for reasons based on the merits of the case but not on merely technical grounds, set aside the proceedings or mitigate, remit or commute the sentence. If the sentence is illegal, the Reviewing Authority must set it aside or under -section 129 of the Act substitute a valid sentence.
7. On the basis of the above-mentioned provisions of law, especially clause (d) of proviso to paragraph 7 of M. L. O. 4, it is vehemently argued by the learned Advocate-General that since the present Intra-Court Appeals arise out of Martial Law Order No. 4, which makes provision for one review, the present Intra-Court Appeals are not competent. In this background, we have to examine the nature of the word "review" mentioned in the said clause (d) and whether it fulfils the legal requirements of the word "review" as used in the proviso to section 3(2) of the Law Reforms Ordinance, 1972.
8. Historically speaking, when Law Reforms Ordinance No. XII of 1972 was initially enacted in April 1972, the Intra-Court Appeals or Letters Patent Appeals, as they were then called, were completely abolished and only pending appeals were saved. However, subsequently provision was made for Intra-Court Appeals in certain cases. Proviso to this provision was for the first time added by Act VIII of 1972, which provides that such appeals shall not be available or competent if the application brought before the High Court under Article 199 of the Constitution arose out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or authority against the original order. It was in January 1975, that this proviso was further amended by Act VI of 1975, when after the words "one appeal" the words "or one revision or one review" were inserted. The effect of this amendment was that no Intra-Court Appeal was made available if the application brought before the High Court under Article 199 of the Constitution, arose out of any proceedings, in which the law applicable, provided at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. It is in this background that the learned Advocate- General vehemently contends that since the present appeals arise out of M. L. O. 4, which provides that the proceedings of Summary Military Court shall without delay be forwarded to the Martial Law Administrator of the Zone concerned for review, the requirement of proviso to section 3(2) of the Law Reforms Ordinance, 1972, has been fulfilled and, therefore, no Intra-Court Appeal is competent.
According to him, it is immaterial whether the said "review" confers any right or provides any remedy to the aggrieved party or not. In other words, according to him, if the law makes provision for appeal, revision or review, then whatever the nature of that appeal, revision or review, no Intra- Court Appeal is competent. He further strengthens his argument that the main object of section 3 initially was to completely do away with Intra-Court Appeals/Letters Patent Appeals and subsequently to reduce the number of such appeals through proviso. The interpretation suggested by him, therefore, fits in with that object of this section as well.
9. We are not inclined to agree with the interpretation suggested by the learned Advocate-General.
The various amendments introduced from time to time in the said section 3 of the Law Reforms Ordinance, make the intention of the Legislature abundantly clear. The first step taken in this behalf by the Legislature was when it was provided in proviso to section 3(2) that if the law out of which the Constitutional proceedings arose, made provision for at least one appeal to any Court, Tribunal or authority against the original order, then no Intra-Court Appeal could be available or competent.
As mentioned above, it was in January 1975, when the scope of this proviso was further extended and after the words "one appeal" the words "or one revision or one review" were added. The position, as it stands today, is that if a Statute makes provision for one appeal or one revision or one review to any Court, Tribunal etc., then no Intra-Court Appeal would be available or competent after the decision of the writ petition under Article 199 of the Constitution. Why in such a situation, right of Intra-Court Appeal has b.-en taken away 7 It is in this background that we have to examine the true meaning and significance of the word "review". It is .Not denied that for the determination of the right of Intra-Court Appeal the word "review" stands at par with "appeal" and "revision" used in proviso to section 3(2) of the Law Reforms Ordinance. Further, it is admitted position that these words "appeal", "revision" and "review" are used in the legal terminology which not only provide a remedy, but in some cases also confer a right to the aggrieved party. Thus, if a Statute makes provision for appeal, revision or review, the aggrieved party may invoke the review jurisdiction of the appropriate Court, Tribunal or authority for the required relief. In other words, the aggrieved party may take the initiative to invoke the appellate/revisional/review jurisdiction of the appropriate Court, Tribunal or authority and will have the right of being beard, unless it is expressly or by necessary intendment taken away. We are, therefore, clearly of the view that toe words "appeal" or "revision" "review" used in proviso to section 3(2) of the Law Reforms Ordinance is a statutory remedy available to the aggrieved party, which not only confers certain powers upon such Court, Tribunal etc., but also provides a remedy A and in some cases a right to the aggrieved party. The words appeal , "revision", "review" have been used in this proviso in the same remedial sense and with the same intention and it is for that reason that in such al situation the right of Intra-Court Appeal has been taken away.
10. Now we have to see whether the word "review" used in clause (d)I of proviso to paragraph 7 of M.
L. O. 4 also provides any remedy or right to the aggrieved party as does the word "review" in proviso to section 3(2) of the Law Reforms Ordinance No. XII of 1972. The only answer is "No", because the nature of the so-called "review" before the Martial Law Authority admittedly is such that the aggrieved party-the convict, has neither the knowledge nor the occasion to participate in such e proceedings which are conducted ex parte qua him. Under M. L. O.
4. The proceedings of Summary Military Court are automatically and without delay forwarded to the Martial Law Administrator of the Zone concerned for review and the aggrieved party has even no concern with this process of submitting the proceedings to the Martial Law Administrator. It is purely a sods of departmental affair having nothing to do with the convict. In other words, the aggrieved party cannot take any initiative or otherwise invoke this review jurisdiction. The duty is cast upon the Summary Military Court itself to forward its proceedings to the Martial Law Administrator of the Zone without any delay. Further, the aggrieved party is not given any right or even opportunity of being heard by the Reviewing Authority, although it is given the unfettered powers to set aside the proceedings or mitigate, remit, commute or suspend the sentence. In most of the cases, the proceedings are simply countersigned by the Reviewing Authority. In this view of the matter, we are unable to agree with the learned Advocate General that the proceedings before the Reviewing Authority under clause (d) of proviso to paragraph 7 of M. L. O. 4 are by way of remedy as contemplated by proviso to section 3(2) of the Law Reforms Ordinance No. XII of 1972. It can, therefore, safely be held that the word "review" used in the said clause (d) does not fulfill the legal requirement of the word "review" used in proviso to section 3(2) of the Law Reforms Ordinance No. XII of 1972, and consequently Intra-Court Appeal is not barred and the same is competent against the decision of a Single Judge under Article 199 of the Constitution against the order of a Summary Military Court. Let, these cases now be fixed in Motion.
11. We are conscious of the fact that one of us while sitting in another Division Bench earlier bad taken a contrary view, but this question at that time was not thoroughly examined.