' Four persons, Mehr Din, Ilyas, Mand and Ashiq, residents of Rattali Virkan, Tehsil and District Gujranwala, alongwith 27 others, were convicted under section 302/201/429/436/148. P. P. C. For committing some murders in the said village in 1968. Five of the accused persons were sentenced to death whereas the persons abovenamed were recommended to be sentenced to undergo transportation for life alongwith others, on 24-9-1974, by a Special Military Court at Gujranwala. The sentence so awarded was to be confirmed by the higher Martial Law Authority but since the Martial Law was lifted in April 1972, therefore, needful in this behalf could not be done.
2. President's Order 14 of 1972, Martial Law (Pending Proceedings) Order, 1972, was enforced on 18-4- 1972. Para. 4 thereof provided that every case. Which, having been decided and disposed of by a Special Military Court was, immediately before the appointed day, pending for confirmation, and every petition or application for review pending on such day, would, on or after the appointed day be dealt with and disposed of by the President of Pakistan, if the sentence was one of death, and in all other cases, by the Governor of the Province concerned. Para. 6(2) of the Order provided that every sentence of imprisonment passed during the Martial Law period by a Martial Law Authority, which was not put into execution during that period might be put into execution under the warrant of the District Magistrate of the District in which the person under sentence may be found; and every such sentence would commence to run on the day on which the person under sentence was received into the prison to which he was committed by such warrant. In compliance with the aforesaid provisions of law the sentence awarded to the aforesaid four persons having been confirmed was put into execution under the warrant of the District Magistrate, Gujranwala on 1-10- 1977.
3. Martial Law Regulation No, 2, promulgated on 25-3-1969 by the then Chief Martial Law Administrator provided two kinds of Special Courts of criminal jurisdiction-Special Military Courts and Summary Military Courts. The Special Military Court was to be constituted in the same manner, was to exercise the same power and was to follow the same procedure as the Field General Court Martial. Special Military Court had the power under Martial Law Regulations 2 to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary law. The present case in which the aforesaid four persons were tried and found guilty and sentenced was tried by a Special Military Court validly constituted under Martial Law Regulation No, 2.
4. It has been contended by the learned counsel for the petitioner that the Special Military Court which awarded life imprisonment to the aforesaid persons was not competent to pass such sentence, it could award only rigorous imprisonment not exceeding 14 years, as provided by Martial Law Regulation No, 4 of 1969. It is submitted according to section 147 of the Pakistan Army Act, 1952, any period curing which a sentence remains under suspension shall be reckoned as part of the term of such sentence.
5. Mehr Din etc., were admitted to bail by the High Court on 13-12-1972 and, as mentioned above, were arrested on 1-10-1977, when the sentence was put into execution by the District Magistrate, Gujranwala. It is submitted that according to the aforesaid provision as well as the letter dated 28- 11-1978, issued from the C. M. L. A.'s Secretariat, Rawalpindi to Inspector-General of Prisons, Punjab, suspension of sentence would not affect its continuity; meaning thereby that the period spent by the aforesaid persons while on bail would not be excluded while computing the period of sentence.
6. So far as the first point is concerned it has been conceded in the parawise comments furnished by the respondents as well as the learned A. A.-G. That transportation for life means rigorous imprisonment for 14 years and it was so conveyed to the L-Gs. Of Prisons as well as to the Registrars of the High Courts. The learned A. A.-G. Has also produced a memorandum issued by the then Home Secretary, West Pakistan to the I.-G., Prisons, West Pakistan, Lahore stating that transportation for life would mean 14 years' R. I. The convicts, therefore, cannot have any grievance in this regard.
7. The learned counsel for the petitioner has vehemently argued by referring to section 147 of the Pakistan Army Act that any period during which a sentence remains under suspension would be reckoned as part of term of such .Sentence. He submits that if so calculated the aforesaid persons should have been released by this time after having undergone the sentence. It is admitted on record that the sentence awarded to them was suspended by the High Court while granting them bail on 13-12-1972 and not by a Military Court. Section 144 of the Pakistan Army Act provides that where a person subject to the Act has been sentenced by a court-martial to imprisonment for life, rigorous imprisonment or detention, the Federal Government or the Commander-in-Chief or any officer empowered to convene a General or Field General Court-Martial may suspend the sentence whether or not the offender has already been committed to prison or custody. Section 145 of the Act provides that where the sentence referred to in section 144 is imposed by Court-Martial other than a summary Court-Martial the confirming officer may, when confirming the sentence, direct that the offender be not committed to prison or to custody until the orders of the authority or officer specified in section 144 have been obtained. Subsection (2) of the said section further provides that where a sentence of rigorous imprisonment or detention is awarded by a summary Court-Martial, the officer holding the trial or the officer authorised to approve the sentence under the proviso to section 127 may make the direction referred to in subsection (1).
' According to section 146 of the Act, where in accordance with any order passed under section 144 a sentence is suspended,. The offender shall, whether he has been committed to prison or custody or not, be released forthwith.
8. When the aforesaid provisions, referred to above, are read together it becomes clear that section 147 of the Act cannot be read in isolation of other sections. Sentence so awarded by a military Court call be suspended by the Federal Government, Commander-in Chief or any Officer empowered to convene a General or Field General Court Martial or for that matter the Special Military Court. In the case of the sentence awarded by a summary Court-Martial, the Officer holding the trial or the officer authorised to approve the sentence under the proviso to section 127 of the Act can make direction referred to in subsection (1) of section 145. If such order A has been passed by a Competent Military Officer or the Federal Government, as the case may be, as provided in section 144 of the Act, then the provision as contained in section 147 would come into play and that period during which the sentence remains under suspension would be reckoned as part of the term of such sentence.
9. In the present case, the sentence of the aforesaid four persons was never suspended by any of the Competent Military Officers, as provided by section 144 of the Army Act. Therefore, no benefit call be taken by them out of section 147.
10. It has been contended by the learned counsel that after the Martial Law was lifted in 1972, Deputy Commissioners were authorised under P.
0. 14 of 1972 to put the sentence into execution and since the sentence was suspended by the High Court in December 1972, after the lifting of Martial Law, therefore, section 147 of the Act will be applicable. He has further contended that since Constitution of 1973 has been held to be supreme, therefore, suspension of sentence by the High Court during the period 13-12-1972 to 30-9-1977 would be quite valid and as such that period would be excluded while computing the period of sentence.
11. I am afraid, the contentions raised above have no substance. The trial of the convicts was held by a Special Military Court in accordance with the procedure laid down by the Pakistan Army Act, 1952. It is admitted that their sentence was never suspended by the military Court as contemplated by section 144 of the Act. President's Order 14 of 1972, under which the District Magistrate, Gujranwala put their sentence into execution has been held to be a valid piece of legislation in Muhammad Din and others v. The State (1). It was held that the aforesaid Order survived restoration of Martial Law and as from the appointed day took effect as existing law within the meanings of clauses (1) and (2) of Article 280 of the Interim Constitution of 1972 and was preserved in force by the 1973 Constitution.
' That being so, the provision as contained in section 6(2) of President's Order 14 of 1972 would be applicable providing that sentence so awarded by a Military Court would be put into execution under the warrant of the District Magistrate and every such sentence would commence to run on the day on which the person under sentence was received Into the prison to which he was committed by such warrant. Since the period spent by the aforesaid four persons on bail cannot be reckoned as part of the term of sentence awarded to them, therefore, they will have to undergo the period of sentence of 14 years subject to remissions to be earned by them under the rules.
12. The letter dated 22-11-1978 is also of no avail to the convicts. It is in regard to convictions and sentences awarded by the Military Courts established under Martial Law Regulations/Martial Law Orders issued by the present Chief Martial Law Administrator. The sentence in the . Case of the convicts was awarded by a Special Military Court established under the then Martial Law in 1969.
13. For the aforesaid reasons, the writ petition having no force is hereby dismissed without any order as to costs.
(1) PLD 1977 SC 52