' ABDUL HAYEE KURESHI, J.-Allandino, has filed the present petition under Article 199 of the Constitution to challenge the trial, conviction and sentence passed against detenus Ali Gul, Dada and Muhammad, by the Summary Military Court, Larkana. The trial was in respect of theft of a tractor and each one of the detenus was sentenced to R. I. For one year and ten stripes.
2. We have heard Mr. S. Nasiruddin, Advocate for the petitioner and the Advocate-General for the Chief Martial Law Administrator and the other respondents.
3. The brief facts of the case are that Ahmad Nawaz, a Research Assistant at Chooharpur Farm within the urisdiction of Dhamrah Police Station lodged a report on 18-2-1978 at 1 p. m., complaining that on the previous night a Government tractor lying in the garage of Chooharpur Farm had been stolen. A case was registered under sections 457 and 380, P. P. C. Subsequently this case was sent up for trial before the Summary Military Military Court at Larkana on a charge under Martial Law Regulation No, 6 which provides for punishment of theft. A charge-sheet was prepared on 13-4- 1978 and on the same day an abstract of evidence against the three detenus was also prepared and delivered to the detenus. On conclusion of the trial before the Summary Military Court each one of the detenus was found guilty and sentence as aforesaid.
4. Mr. S. Nasiruddin has contended before us that on merits no case for conviction was made out.
He has, however, raised certain legal pleas which may be summarized as follows :--
(i) that the Doctrine of Necessity propounced by the Supreme Court in the case of Begum Nusrat Bhutto v. The Chief of the Army Staff (1) did not empower the Chief Martial Law Administrator or any other authority to establish Summary Military Courts ;
(ii) that establishment of Military Courts in the already occupied field was bad for such reason ;
(1) PLD 1977 SC 657
(iii) that rule 113 of the Rules framed under the Army Act was not complied with by the Summary Military Court ; and
(iv) that the trial was illegal because the Martial Law Administrator had not passed an order transferring this pending case to the Military Court.
5. On the factual plane we have made a reference to the abstract of evidence which has been produced by the petitioner. This abstract shows that on 18-2-1978 Choukidar Sikandar Ali Shah came and informed the complainant Ahmed Nawaz about the theft of the tractor by breaking the lock of the garage. Choukidar Sikandar Ali Shah had recognized detenus All Gul and Dadu as the persons who had committed the theft. A report was made by Ahmed Nawaz to his superior officers and also to the police. It is then stated that on 15-3-1978 detenus Ali Gul and Muhammad had led the police to Rohri and showed the stolen property which was lying in the ottak of one Fakir Muhammad. An identification parade was held in which Choukidar Sikandar All Shah identified detenu Muhammad in the presence of a Magistrate.
6. On facts we cannot come to a conclusion that the case was one of no evidence or that the finding is in any manner bad or perverse. Two out of the three detenus had been identified and the stolen property had been secured at the instance of detenus Ali Gul and Muhammad. Mr. S. Nasiruddin has not contended before us that proper opportunity of cross-examination or examination of defence witnesses had been denied to the three detenus. On facts we see nothing that might persuade us to exercise jurisdiction under Article 199 of the Constitution so as to hold the proceedings before the Summary Military Court to be illegal and/or of no legal effect.
7. On the legal pleas it may straightaway be stated that the concept of Doctrine of Necessity in relation to establishment of Military Courts was examined by a Division Bench of this Court in the case of Rustom Ali v. Martial Law Administrator and others (1). The learned Judges of the Division Bench were of the view that Martial Law having been accepted as validly enforced the power to set up Courts to deal with matters relating to law and order has to be conceded as of necessity. This question was also considered at length in the Full Bench judgment of Khudiadad v. Deputy Martial Law Administrator, Zone ' D' (2). The promulgation of martial law being valid the establishment of Military Courts cannot be held illegal.
8. The learned Advocate has next contended that rule 113 of the Rules framed under the Army Act had not been complied with in this case. Rule 113 reads as follows :- "113. Friend of accused.-At a trial by summary Court martial an accused person may have a person to assist him during the trial, whether a legal adviser or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine or address the Court."'
' This rule is only an enabling rule providing that an accused person may appoint a friend to assist and advise hi I in the conduct of the case. Mr. Nasiruddin has not been able to show that the detenus accused had desired to have a next friend or that they had been denied this opportunity.
(1) PLD 1978 Kar. 736 (2) PLD 1978 Quetta 177
9. The next contention of Mr. Nasiruddin is that the case was pending before an ordinary criminal Court and could not have been transferred to a Military Court without an order of the Martial Law Administrator. The argument is founded on paragraph 3 of the Martial Law Order No, 4 reconstituted by Martial Law Order No,
37. In order to avail of this arguments it has first to be shown that the case against the detenus accused was pending in an ordinary criminal Court. It is needless to say that a mere recordin of first information report will not amount to "a case pending" before an ordinary Court. It is further to be shown that either a challan or a complaint had been submitted in the Court. Mr. Nasiruddin had not stated if a challan or a complaint had indeed been submitted before an ordinary Court. The factual basis of such argument is therefore, absent and the contention must fail for that reason. We are, therefore, of the view that this petition merits to be dismissed and is accordingly dismissed. The parties shall bear their own costs.