' Z. A. CHANNA , J.-This constitutional petition seeks to challenge the conviction of 3 teen-aged students of the Government High School, Thatta, under M. L. R. 1 and clause (c) of paragraph 4 of M.
L. R. 18 by the Summary Military Court, Thatta, the first respondent.
2. The facts giving rise to this petition are that on the 9th October, 1978 about 20 students of the Government High School, Thatta, had boycotted their classes, gone to the Bazar and were raising slogans, while sitting in a bus, to the effect that the School should be closed when the entire bus, alongwith its occupants, was taken to the police station. On the following day, at 20.30 hours, F. I. R.
Was lodged in respect of the incident in which the names of all the 20 students were mentioned, but it was stated therein that as parents of 17 students had tendered apology, they were released and let off, while proceedings were initiated against the aforesaid 3 convicts under the orders of the learned S. D. M., Thatta. The three convicts were challaned before the Summary Military Court, Thatta, which framed the following charge against them on 28th October, 1978 to which charge they are stated to have pleaded guilty.
(1) Ghulam Sarwar son of Ghulam Qadir, Khushak resident of Thatta.
(2) Abdul Malik son of Muhammad Issa, Khushak, resident of Matta.
(3) All Muhammad son of Ismail, Khushak, resident of Darweish, District Thatta.
' Persons subject to Martial Law Regulation are charged herewith.
' M L R-1. 18(3)(4) C.-Committing an offence that is to say that they boycotted the classes, took out procession, raised slogans for disturbing the atmosphere of educational institutions. In that they, boycotted the classes of Government High School Thatta on 9th October, 1978 and took out a procession from a school and proceeded to the bus stop Thatta. They got over the roof of the bus and raised slogans saying "SCHOOL KO BUND KARO" or words to the effect for disturbing the atmosphere of educational institutions, which is a clear violation of M. L. R. 1, 18(3)(4) C an offence punishable under the same regulation.
(Sd,) Major President (Summary Military Court, Thatta)
(Muhammad Afzal)
3. Notwithstanding the stated plea of guilt of the 3 convicts, two witnesses, namely, Mr. Qadir Bux son of Muhammad Rajab, Head Muushi, Thatta, and Mirza Iqbal Baig, S. H.
0. Thatta, were examined, who stated that about 20 to 25 students of the Government High School Thatta, including the three convicts, ha4 boycotted their classes, pro. Ceeded towards the town, and while sitting over the roof of a bus were raising slogans and saying "School Ko Bund Karo" or words to that effect. The learned Summary Military Court sentenced each of the convicts for the above offence to suffer R. I. For 9 months.
4. Mr. Nooruddin Sarki, the learned counsel for the convicts, has assailed the trial and the conviction of the convicts by the Summary Military Court on various grounds. His first submission was that there was no evidence before the Summary Military Court to establish an offence either under M. L.
R. 1 or under clause (c) of paragraph 4 of M. L. R.
18. Relevant provisions of the two M. L. Rs, read as follows M. L. R. 1 "Strikes, agitation or political activity of any kind in Educational Institutions is prohibited.
' Maximum punishment 5 years' rigorous imprisonment and/or whipping not exceeding 5 stripes.
' M. L. R. 18 "4. No political party or person shall-
(c) In any manner, interfere with, or cause disruption, in the functioning of educational institutions."
5. As already pointed out, the charge against the 3 convicts was that they had boycotted classes, had taken out a procession from School and proceeded to a bus stop at Thatta, where they got on to the roof of a bus and were raising slogans that the school should be closed or words to that effect. It was submitted by the learned counsel for the convicts that none of the actions alleged in the charge sheet constitute a strike, agitation or political activity in an educational institution, so as to attract the application of M. L. R. No,
1. The term 'strike' has been defined in the Shorter Oxford Dictionary as : a concerted cessation of work on the part of a body of workers, for the purpose of obtaining some concession from the employer or employers. Hannen, J. In Ferrer v. Close (1) defined "strike" as "a simultaneous cessation of work on the part of the workmen" ; while Kelly, C. B.
In King v. Parker (2) stated :- "There is no authority which gives a legal definition of the word `strike' ; but I conceive the word means a refusal by the whole body of workmen to work for their employers, in consequence of either a refusal by the employers of the workmen's demand-for an increase of wages, or of a refusal by the workmen to accept a diminution of wages when proposed by their employers."
6. Asbury's Laws of England, Third Edition, Volume 38, adopts Hannen, J's definition of strike as "simultaneous cessation of work on the part of workmen. Kay L.J., in the case of Lyon's (F) & Sons v.
Wilkins (3), observed : "A strike is an agreement between persons who are working fora particular employer not to continue working for him."
7. From the above definitions and interpretations of the word 'strike' it is clear that it contemplates stoppage or cessation of work by A employees or workmen. The students in a school are neither workmen nor can they be said to work in the school, for their receiving of instructions cannot in any way be equated with work. The act of the i8 3 convicts and their companions in abstaining from their classes cannot thus be considered to be a strike in any accepted sense of the word.
8. The action of the 3 convicts and their companions also cannot be construed as agitation in an educational institution. Whatever action was taken by them was outside the premises of the school. There is no evidence, whatsoever, that any act, which may be considered to be agitation, was indulged in by the 3 convicts in the premises of the school. According to the Shorter Oxford Dictionary the word 'agitate' has been defined as `to perturb' and the word 'agitation' has been defined therein as "the keeping of an object before the public attention by appeals, etc. Public excitement." Keeping in view the above connotation of the word 'agitation' we are not satisfied with even otherwise the action of the convicts in asking for the school to be closed, when it was not disclosed for what reason they wanted the school to be closed, would amount to agitation in an educational institution, so as to attract the application of M.L.R.
1. Even if it be assumed that the action of the 3 convicts could amount to agitation, it was at best in relation to a School and not in an educational institution, since their actions were taken outside the School premises and not within the same.
9. Coming next to M. L. R. 18, we find that the object of the said Regulation is to prohibit political activities and agitational activities by political parties. The learned Additional Advocate-General submitted that paragraph 4 of the said M. L. R. Not only makes indictable the various actions specified in the sub-clauses of the said paragraph, which are committed by a political party, but also by any person whatsoever. We are unable to accept this contention. Since this Regulation, in our view, is primarily aimed at curbing the undesirable activities of political parties, we consider that only such activities of a private person are prohibited which are linked with a political activity or have a political motivation or background. If we were to accept the wider interpretation suggested by the learned Additional Advocate-General, such innocuous or negligent acts as a malhi inadvertently letting water in the compound of a school, thereby making it inconvenient or difficult for school children and their teachers to gain admission to their classes, or the failure of a Local Authority to supply drinking water to a school, with the result that holding of classes may prove difficult or even impracticable or the non-supply by the Electric Company of electricity to a school which holds evening classes, would all become punishable under the said Regulation, which according to us, could not possibly be the object of this Regulation. It may also be pointed out that paragraph 4(c) of the regulation speaks of interference with or causing of disturbance in the functioning of educational institutions. In our opinion, the plural has advisedly been used so as to make the law applicable only to such actions as adversely affect the working of more than one educational institution. In the instant case, as already pointed out, there is no evidence to show why the 3 convicts and their colleagues wanted the school to be closed. It is thus quite possible that they may have demanded the closure of the school for a valid and a justifiable reason. We are accordingly of the view that the action of the 3 convicts does not fall either within M L. R. 1 or clause
(c) of paragraph 4 of M. L. R.
18. As such, the ingredients of the offences with which the 3 convicts were charged and were subsequently convicted, have not been established.
10. It was next submitted by Mr. Nooruddin Sarki that the trial of the 3 convicts was in violation of Rules 23, 24 and 113 of Pakistan Army Act Rules, 1954. According to Rule 23 of the said Rules an accused who is to be tried by a Military Court has to be accorded proper opportunity of preparing his defense, being allowed free communication with his witnesses, to have the assistance of a next friend for purposes of D consultation and to be granted gratis a copy of the summary of evidence or an abstract of the evidence. Rule 24 provides that a copy of charge-sheet shall be given to the accused and the Presiding Officer of the Court shall explain the same to the accused. Rule 133 is also important and provides that an accused person shall have at the trial by any Military Court the assistance of a Legal Advisor or any other person, who may advise the accused on all points and suggest the questions to be put to witnesses. We have examined the record of the Summary Military Court and find that there has been no compliance whatsoever with these salutary provisions of the law.
11. It was submitted by the learned Additional Advocate-General that all the 3 convicts had pleaded guilty and hence no interference with the conviction is called fi,e, According to Rule 99 of the Pakistan Army Act Rules, when an accused pleads 'guilty' the said plea shall be recorded as the finding of the Court ; but before it is recorded, the Court is required to ascertain that the accused understands the nature of the charge to which he has pleaded guilty and is to inform him of the general effect of the plea and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilt, and shall advise him to withdraw that plea if it appears from the Summary of evidence or otherwise that the accused ought to plead not guilty. Such a certificate is required to be recorded in the form of arraignment before a Military Trial. We, however, find that whereas such a certificate has been recorded in respect of convict Ghulam Sarwar, no such certificate has been recorded in respect of convicts Abdul Malik and Ali Muhammad. Furthermore, the signatures of the 3 convicts have neither been obtained on the charge sheet nor on their plea of guilt. There is thus substance in the contention of Mr. Nooruddin Sarki that the salutary and necessary provisions regarding the trial before Military Courts, as contained in the Pakistan Army Act Rules, have not been complied with in the instant case.
12. It was next submitted by Mr. Nooruddin Sarki that two of the convicts, namely Abdul Malik and Ghulam Sarwar, are below 15 years of age and consequently their conviction for any offence and sentence of imprisonment are illegal by reason of the provisions of sections 68 and 69 of the Sind Children's Act, 1955. The fact that these two convicts are below 15 years of age has been specifically asserted in the petition and in support of that assertion the age certificates, given by the Head Master of the Government High School, Thatta, have been filed. This fact is not controverted or disputed by the respondents. We, therefore, take it that these two convicts are below 15 years of age and are therefore children and also clearly youthful offenders for the purposes of the Sind Children Act, 1955. Section 68 of the said Act prohibits, notwithstanding anything contrary contained in any other law, to the passing of a sentence of death, transportation or imprisonment upon a youthful offender, who is defined to be a person under the age of 16 years who has allegedly committed an offence. Similarly, section 69 of the said Act provides that the expressions `convictions' and 'sentences' are not to be used in relation to children and youthful offenders. It was held by a Division Bench of this Court, in Criminal Appeal No, 46/1978, that the appellant in that case, who was a youthful offender for the purposes of the Sind Children's Act, 1955, could not have been sentenced to imprisonment or imprisonment for life, as had been erroneously done by the learned Additional Sessions Judge. A similar view was held, with reference to the corresponding provisions of E the Bombay Children's Act, 1924, by the Sind Chief Court in the case of Miromal v.
Emperor (1). The sentence imposed upon the .2 young convicts was thus contrary to the provisions of the Sind Children's Act. The said Act is of general application. The learned Additional Advocate- General was unable to show us that the said Act was inapplicable to offences under Martial Law Regulations or trials before Military Courts.
13. Before concluding this judgment, we would like to observe that we are disturbed at finding that though 20 to 25 students, all of whom allegedly raised the same slogans and participated in the same actions for which the 3 convicts have been sentenced, they were let off, merely
(1) AIR 1948 Sind 63 because their parents gave a written apology on their behalf. It may be pointed out that it was the police who did not challan these 17 students and the police decided in their wisdom to challah only the 3 convicts. We asked the learned Additional Advocate-General to apprise us of the law which conferred such wide and sweeping powers to the police, but he was unable to refer us to any such law and merely submitted that the power of challah vested in the police. We do not think that it is for the police to decide, when there is equal evidence against two persons, to challah one and to let off the other. Article 4 of the Constitution confers right on citizens to be dealt with in accordance with law and the police is also required to act in accordance with law and not merely in accordance with their notions of what may or may not be appropriate in the circumstances of any individual case.
14. For the reasons stated by us above, we would allow the petition, set aside the convictions of the 3 convicts and direct that they should be forthwith set at liberty, if not required in any other case.