' This is a writ petition to challenge the trial of the petitioner pending before a Summary Military Court for offences under section 161, P. P. C., section 5 (2) of the Prevention of Corruption Act, 1947, and Martial Law Order No, 7 read with Martial Law Regulation No, 14.
2. The argument of the learned counsel is that a person who can be tried by a Special Judge under the Criminal Law Amendment Act, 1958, cannot be tried by a Summary Military Court. He also submitted that Martial Law Order No, 7 was not a new law which could be tried by the Summary - Military Court irrespective of the provisions of section 161, P. P. C. And section 5 (2) of the Prevention of Corruption Act, 1947. In this connection, the learned counsel relied upon Dil Muhammad v.
Summary Military Court and others (1), Manzoor Ahmad v. President, Summary Military Court No, 3, Karachi (2) and Muhammad Niaz v. Martial Law Administrator, Zone D, Quetta and 4 others (3).
3. The last case cannot be looked into since an appeal was taken in that case to the Supreme Court (Civil Appeal No, 99 of 1978). Later on the case was sent back to the Special Judge for being tried under the normal law of the land. It was in these circumstances that the appeal was dismissed as infructuous but subject to the observation that the decision will not affect any other case pending before the Military Courts concerning the schedule of offences triable under the Criminal Law (Amendment) Act.
(1) PLD 1978 Lah. 796 (2) (2) PLD 1979 Kar. 623
(3) PLD 1979 Quetta 179 ' The case Dil Muhammad v. Summary Military Court and others is distinguishable. Several writ petitions were allowed on the ground that Martial Law Order No, 7, as it then stood, was not a law the contravention of which could be hel' d to be punishable under Martial Law Regulation No, 14.
At that time Martial Law Order No, 7 read as follows :- "Whosoever offers or attempts to offer bribe or illegal gratification in any form or manner and whosoever accepts such bribe or illegal gratification, and whosoever abets or induces or attempts to induce someone to offer or accept bribe or illegal gratification in any manner or form with the object that in the course of transaction of official 'business some favors or disfavor shall be obtained for any one, some service or disservice shall be rendered for undue benefit of someone, shall be tried by a military Court."
4. Martial Law Regulation No, 14 provides that "contravention of any Martial Law Order shall be punished with rigorous imprisonment for a term which may extend to 5 years, forfeiture of property, and/or whipping not exceeding 20 stripes". Since Martial Law Order No, 7 did not create any offence, it was held that there was nothing to contravene in that Order and as such Martial Law Regulation No, 14 was not applicable.
5. By the time that this judgment was rendered, Martial Law Order No, 7 had been re-constituted as from the 18th January, 1978, though the reconstitution was with retrospective effect. The reconstituted Martial Law Order No, 7 provides :- "No person shall offer or attempt to offer bribe or illegal gratification in any form or manner and no person shall accept any bribe or illegal gratification for himself or any other person or induce or attempt to induce any person to offer or accept such bribe or illegal gratification in any form other than a legal remuneration as a motive or reward for doing or for bearing to do any act or for showing favors or disfavor to any person, in relation to an official business."
' Since this Martial Law Order was reconstituted later, it was held that it was not applicable. It was also observed that the Summary Military Courts have a limited jurisdiction and therefore, if they assume jurisdiction they must do it within the four corners of the law that they have themselves framed.
6. Karachi case is also not different from this case. In that case Martial Law Order No, 5 issued by the Martial Law Administrator, Zone `C' provided only for investigation and trial of corruption cases but did not create any new offence. There are, no doubt, certain observations which favour the petitioner but they are clearly obiter and cannot be taken into consideration.
7. Now Martial Law Order No, 7 has been once was re-constituted with effect from the 1 1 th April, 1979, by Martial Law Order No, 253 which is as follows : - "(1) No person, being or expecting to be a public servant or being an employee of a corporation.
Association or body in which the Government has any financial interest, shall accept or obtain or agree to accept or attempt to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration as motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person or with any public servant or employee of a corporation, association or body in which the Government has any financial interest.
(2) No person, being a public servant or being an employee of a Corporation, association or body in which the Government has any financial interest, shall accept. Or obtain, or agree to accept or attempt to obtain, for himself or for any other person any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or employee, or having any connection with the official functions of himself or of any public servant or employee to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned.
(3) No person shall accept or obtain or agree to accept or attempt to obtain from any person, for himself or for any public servant or an employee of a corporation, association or body in which the Government has any financial interest, any gratification whatever as a motive or reward for inducing such public servant or employee, by corrupt or illegal means, to do or forbear to do any official act or to render or to attempt to render any service or disservice, to any person in the exercise of the official functions of such public servant or employee.
(4) ContraNention of paragraphs Nos. 1 to 3 above shall be punishable under MLR-14 and its abetment under MLR 86."
' Now that Martial Law Order has been twice re-constituted, it is clear that at least as from 18th January, 1978, it created a new offence. The sentence for that offence under Martial Law Regulation No, 14 is also different. It may be stated that while the sentence for an offence under section 161, P. P.
C. Is 3 years or fine or both and in section 5 (2) of the Prevention of Corruption Act is 7 years or fine or both, the sentence for an offence inter alia under Martial Law Order No, 7 is five years' rigorous imprisonment, forfeiture of property, and/or whipping not exceeding 20 stripes. While the maximum sentence in MLR 14 is reduced to five years, much more deterrent sentences of forfeiture of property and of whipping have been added. To all intents and purposes the offence under Martial Law Order No, 7 as re-constituted is a new offence. This question is not without authority now. In Mapal Khan v.
Martial Law Administrator, Zone `A', Lahore (1) it, was held that Martial Law Order No, 7 of 1978, as amended in 1978, creates a special offence in the peculiar situation prevalent in the country.. This provision was held to be valid.
8. The argument of the learned counsel that for trial of an offence A under the Criminal Law (Amendment) Act, sanction of the Government is necessary while under the present law it is not necessary, is of no, consequence. Once it is held that Martial Law Order No, 7 creates a new
(1) PLD 1978 Lah. 766 ' offence, it is open to the Legislature to do away with the provisions of the Criminal Law (Amendment) Act in ,regard to sanction.
9. This petition is without force and is dismissed.