1. ABDUL HAYEE KURESHI, ACTG. C J.-These three petitions have been filed by Abdul Sattar, Abdul Majeed and Sultan Mohammad Tariq and since common questions of Law and facts arise the same have been heard and are being disposed of together by this common judgment. We have heard Mr. Munawar Abroad Mirza, Advocate for petitioner Abdul Sattar, Mr. Raja Mohammad Afsar, Advocate for petitioner Abdul Majeed and Mr. Khalid Malik, Advocate for petitioner Sultan Muhammad Tariq.
2. The brief facts leading to these petitions are that petitioner Abdul Sattar is a shopkeeper at Ahmedwal, Sultan Mohammad Tariq, a Guard in the Railways Department and Allah Ditta, a Railway Driver. (Allah Ditta being n Jail has: moved this Court through his father Abdul Majeed). On 16-11-1977 the three detenus namely Allah Ditta, Abdul Sattar and Sultan Muhammad Tariq were arrested at Nushki Railway Station for indulging in smuggling of 267 chests of tea. After investigation the case was placed before the Martial Law Administrator, Zone 'D' who directed the three detenus to be tried by the Summary Military Court No. 1 at Quetta. On the conclusion of the trial each one of them has been awarded sentence of one year. The detenus being aggrieved by the trial and the consequent conviction and sentence, have filed these constitutional petitions under Article 199 of the Constitution of Islamic .Republic of Pakistan.
3. One common ground has been taken in each one of these petitions and the same was to the effect that Martial Law Order No. 4, promulgated by the Chief Martial Law Administrator on 5th July, 1977, setting up Military Courts is ultra sires: The -Full Bench of this High Court had heard this point separately and arrived at a conclusion that Martial. Law Order No. 4 was a valid pieee of legislation.
4. The remaining contentions of the petitioners are the following :-----
(1) The Summary Military Court at Quetta had no jurisdiction to try the case as the offence had occurred in Nushki District ;
(2) That the case was not entertained by the Summary Military Court in a proper manner ; and
(3) That offence of smuggling had not been committed.
5. Under Martial Law Order No. 4, the Chief Martial Law Administrator had provided for establishment of Special Military Courts and Summary Military Courts. Article 6 of Martial Law Order No. 4 which provides for establishment of Summary Military Courts reads as follows :---- "A 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 offences under Martial Law Regulations or offences under any other law for the time being in force or for contravention of Martial Law Orders."
6. It would appear on a plain reading of Article 6 that a Martial Law Administrator may by a general or special order establish a Summary Military Court within the Zone which is in his administrative control. Pursuant to this power the Zonal Martial Law Administrator promulgated Martial Law Order No. 5 establishing several Military Courts on 17th July, 1977. This order made no provision for any Military Court for the District of Nushki. However the learned Advocate-General has shown to us an order dated 3rd November, 1977 which reads as follows :- "The Martial Law Administrator, Zone `D' had approved that this case be referred to the Summary Military Court No. I (Quetta) for trial. (Sd.) Brigadier."
7. It has been stated by the learned Advocate-General that this order has been signed by Brigadier Akhian Gul who is also the Deputy Martial Law Administrator.
8. The learned Advocates for the petitioners after being apprised of this order of the Martial Law Administrator attacked the same on the ground that an order is to be passed only by the Martial Law Administrator but Brigadier Akhian Gul was not competent to have passed this order. There is an obvious fallacy in the argument because the order of reference of this case to the Summary Military Court has been passed by the Martial Law Administrator, but it is only manifest in the hand of the Deputy Martial Law Administrator. Moreover illustration (e) under section 114 of the Evidence Act, will raise a presumption in favour of correctness of this order. In the result the terms of Article 6 of Martial Law Order No. 4 have been complied with as this case was referred to the Summary Military Court No. 1 at Quetta by the Martial Law Administrator.
9. The next contention . Of the learned Advocates is that the case was not properly instituted before the Military Court because under section 185-B of Customs Act the Special Judge appointed under the Customs Act has the powers to try an offence punishable under that Act. The case was tried by the Military Court in persuance of a Martial Law Order. Under Article 5 of the Laws (Continuance in Force) Order (Martial Law Order No. 1) the existing laws have been continued subject to any alteration, amendment or repeal by the competent authority. The Chief Martial Law Administrator ha legislative powers, and under Martial Law Order No. 4, it has been provided that the Military Courts can try an offence under any law for the time being in force. Since the Martial Law Administrator had directed the trial by the Military Court ; to such extent the jurisdiction of the Special Judge stood ousted. There is no substance in this contention.
10. The next point urged by the learned Advocates is that the detenus received discriminatory treatment as normally smuggling cases are triable by the Special Judge under the Customs Act.
11. This point is equally without substance because the fundamental rights stand suspended. In any case a document purporting to be a policy in regard to institution of cases before the Military Courts has been placed before us and the same reads as follows:- "The Prosecution Agency in Baluchistan, is directed that as soon as the incomplete or complete challans are ready for submission for trial in cases pertaining to smuggling, anti-social activities or any other offences of heinous nature requiring expeditious disposal for advancing the welfare of the people and the purposes for which Martial Law had been promulgated, be placed before D. M.
12. L. As. Who will decide whether proceedings or trial should be initiated in the Military Courts constituted under C. M. L. O. No. 4(1) or be referred to the ordinary criminal/civil Courts, in case he decides to send it in Military Court, he will take cognizance and forward the same to the relevant Court."
13. It would appear from the above letter that a rationale had been laid down in regard to reference of cases to Martial Law authorities have acted capriciously by reference of this case to the Military Court. A sound policy has been pronounced in the above letter and prima facie that policy ha been followed.
14. The other contention of the learned Advocates is that the property having been seized at Ahmedwal from a train, the place being about 250 miles from the border, an intention of smuggling the property across the border was not spelt out from the circumstances. Judging of intention of accused is primarily the function of the trial Court and the High Court in exercise of its constitutional jurisdiction would not enter into fine questions of fact. However the learned Advocate-General had made a statement before us that the owner of the goods in conspiracy with the Guard and the Driver of the train made the train stop at a place other than a railway station and loaded the tea chests on the same. Additionally it has been contended by the Advocate-General that the quantity was so large that the same could not be otherwise sent across the border. A reference to the explanation appended under section 156 of the Customs Act, 1969 would show that smuggling of goods by export, as distinct from import is completed when the goods are loaded on any conveyance for transport to any destination outside Pakistan. It is not necessary that the goods actually cross the frontiers. In any case this was predominantly a question of fact which is within the jurisdiction of the trial Court. Such circumstances have been believed by the Summary Military Court and there is no reason to come to a contrary conclusion.
15. No other point was raised before us and we see no substance in these petitions which are dismissed. In the circumstances of these cases there shall be no order as to costs.
16. During the pendency of these petitions interim orders of bail were passed and such orders stand vacated. The three detenu must surrender to serve the sentence.