1. ' MUHAMMAD ZAHOORUL HAQ, J.-This is a petition filed by the petitioners against their convictions by the President, Summary Military Court, Karachi ' under Martial Law Regulation No, 9 and under sections 147 and 148, P. P. C. Three petitioners have been convicted to suffer R. I. For one year or nine months and Muhammad Gul petitioner had also been fined Rs, 500.
2. ' The learned counsel for the petitioner Mr. Abdul Wahid Abid has raised three contentions (1) that there was no necessity of trying the petitioners by Summary Military Court, (2) that it is a case of no evidence, and (3) that the petitioners were not identified. The counsel elaborated that the offences could have been tried by civil Courts and there 'was no particular necessity of these offences being tried by the Military Court. We are however unable to agree with these submissions as the first charge is under Martial Law Regulation No, 9 which reads as under :-- "Any person who attacks, resists or injures, or causes to be attacked resisted or injured any member of the forces whether Civil or Military` or any civil Official, shall be punished. Maximum punishment death."
3. ' The offence being an offence under Martial Law it was appropriate that it should be tried by a Military Court, and therefore, the question of considering the necessity of a trial by civil Court on this account does not arise. It is provided in paragraph 2 of C. M. L. A. And C. M. L. A. Martial Law Order No, 4.
4. "Any Military Court shall have power and jurisdiction to try and punish any person for an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force."
5. ' It would thus appear that Military Courts set up by the Martial Law Authorities have the power to try any offence under Martial Law Regulations or Orders and also can try any offence under any other law. The contention that the necessity for trial by Summary Military Courts must be shown before a case can be tried by Summary Military Court is not warranted in law as we have not been shown any provision of law to that effect. The challenge cannot be based on fundamental rights as they remain suspended today and their suspension has been upheld by the Supreme Court in PLD 1977 SC 657. The Legislature has provided two forums for the trial of the offences, and therefore, any forum could be resorted to for such trial. The counsel has not contended that C. M. L. A. Order No, 4 is not good law or that Martial Law Regulation No, 9 is not good law. Once, C. M. L. A. Order No, 4 is not challenged and the same could not be obviously challenged in view of the dictum of their Lordships of the Supreme Court in PLD 1977 SC 657 relevant portion (715, 716), where the Supreme Court held "the Chief Martial Law Administrator, having validly power by means of an extra- constitutional step in the interest of State for the welfare of the people is entitled to perform all such acts and promulgate all legislative measures which have been constantly recognized by Judicial Authority as falling within the scope of the ,Law of necessity namely, (a) all Acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution including the power to amend it; (b) all Acts which tend to advance or promote the good of the people; (c) all Acts required to be done for the ordinary, orderly running of State and (d) all such measure as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law namely restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democrate institutions under the 1973 Constitution." The Supreme Court further held that these Acts or any of them may be performed or carried out by means of presidential Order, Ordinance, Martial Law Regulations or Orders as the occasion may require. It is, therefore, evident that the Chief Martial Law Administrator had the authority in law to issue C. M. L. A.'s Order No, 4 as well as Martial Law Regulation No, 9 and therefore, on the basis of the authority mentioned above, this order, and regulation cannot be challenged. Once, it was A established that the Summary Military Court had the authority to try these offences, therefore, it cannot be insisted upon that a further necessity must be established of the trial of these offences by Summary Military Courts instead of the civil Court. This would amount to placing unnecessary curbs on the authorities who have to decide as to what forum they may choose for the trial of particular offences. The Law has not placed any restriction in that choice, and therefore, it would not be the function of this Court to impose those restrictions. We have only to see whether there has been an exercise- of a lawful authority by the Summary Military Court, and the counsel has not been able to show to us as to what particular law was breached by Summary Military Court in trying these cases. This Court does not interfere in the matters of policy, and therefore, we will not agree with the learned counsel that a necessity has to be established first before a Summary Military Court could try these cases. The position might have been considerably different if the fundamental rights had not been suspended, and this Court had the right to assess the procedure before the Martial Law Courts in the light of fundamental rights guaranteed in the constitution.
6. ' The question of necessity was further explained by the Supreme Court in the case of Zulfikar Ali Bhutto (1) at p. 58 as uncle "These categories of the various types of permissible actions were spelt
(1) PLD 1978 SC 40 out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be. Necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word "necessity" has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning."
7. ' It is, therefore, obvious that in this case petitioner cannot invoke the doctrine of necessity as explained by the Supreme Court.
8. ' The learned counsel further contended that it was a case of no evidence, but we find this contention to be ill-founded because we have seen from the record of the trial of this case in Summary Military Court, produced by the 'Advocate-General and duly inspected by the counsel for the petitioner, that not less than 6 P. Ws. Were examined on behalf of the prosecution including f the complainant Head Constable Gohar Rehman who had deposed that all the persons present in Court had beaten him with hood, box club etc. He had particularly named Peshem Gul, Muhammad Gul and Khan Mir, and had also identified all the other accused who had participated in the riot and had beaten him. The P. W. Muhammad Jalal Police Constable had named petitioner Hikmat Khan and Araidullah who were alleged to be holding sticks in their hands, and were busy in beating. Similarly, the other have involved the different accused present in Military Court as persons who had participated in rioting. The charge against the petitioner was that on 14th May, 1979, they had attacked Gohar Rehman and Hassan Ali Constable of Traffic Branch towards Crown near Pali on Maripur Road resisting the arrest of driver Peshem Gul who was involved in an accident case, and that, they had caused simple injury to 'two above constables and also tore the uniform and thereby committed offence under Martial Law Regulation No, 9.
9. ' Such being the position it is too much on the part of the learned counsel for the petitioner to say that it is a case of no evidence. The evidence is obviously there, and it was for the Summary Military Court which tried that case to evaluate the evidence, and it has done so and convicted the petitioner on the basis -of such evidence. Although, the evaluation of evidence is not responsibility of this Court in writ Jurisdiction, but we do fined that the Summary Military Court has convicted only five persons out of 10 persons who were challaned, and acquitted other five. Only those five persons were convicted whose names had been specifically mentioned by any one of the witnesses. We therefore find that the conviction is based on evidence.
10. ' The last contention of the learned counsel that identification parade had not been held is without any substance as accused petitioner had allegedly been arrested on the spot in the presence of P.
11. Ws., and thus there was no question of holding any identification parade. In any case the petitioners had been pointed out in Court as the persons who had participated in the crime by the prosecution witnesses. Furthermore, it was for the Summary Military Court to decide whether there had been a proper identification of the petitioner or not. This Court cannot have any justification to evaluate the question of sufficiency of identification. In view of the above reasons we dismiss this petition in limine.