' This judgment will also dispose of Writ Petition No, 968/79, as similar questions of law and facts are involved in both the cases.
2. The occurrence in this case took place at 10-30 a. m. On 26-10-1978 in Rail Bazar, Gojra, Faisalabad. According to the petitioner in Writ Petition No, 1292/79, his brother Muhammad Naeem was going to a laundry, situated in Rail Bazar, Gojra when all the eight persons, namely, by Haq Nawaz, Ali Asghar, Akbar, Riaz, Mahmood, Shaukat Mahmood, Irfan Mahmood and Nawaz, who were sitting in a tonga, armed with fire-arms attacked him. According to him, Ali Asghar, Haq Nawaz, Riaz and Irfan Mahmood were armed with revolvers while Mahmood Ahmad, Akbar and Nawaz with '12 bore guns. On seeing Muhammad Naeem, Mahmood Ahmad raised lalkara that Naeem should not be spared. Irfan Mahmood fired at him with his revolver, which hit his left arm. Haq Nawaz also fired at him with his revolver, which hit left side of his chest. Shaukat Mahmood is alleged to have fired at him hitting him below his nose. Muhammad Naeem, according to the petitioner in exercise of his right of self-defence fired at Irfan Mahmood and Muhammad Nawaz, injuring both of them.
Muhammad Naeem was rescued by Ghulam Rasool, Akhtar Zaman etc.
3. Thereafter, according to the petitioner, he was removed to Civil Hospital, Gojra in injured condition where he was admitted and his medico-legal report was drawn up by the Medical Officer on the same date. The Police was informed accordingly and Mr. Khizar Hayat S. I., P. S. Gojra, who reached the hospital immediately, recorded his statement. According to the petitioner, the aforesaid S. I. After having recorded Muhammad Naeem's statement requested the Police Station concerned to permit him to start investigation of the case, which according to him fell under section 307/ 148/149, P. P. C. Copy of the statement so recorded by Khizar Hayat, S. I. Has been appended with the petition as Annex. 'A'.
4. It is submitted that no case was registered on the statement of Muhammad Naeem in spite of the fact that his statement so recorded was forwarded to the Police Station for that purpose. Case relating to the same incident was recorded vide F. I. R. No, 345 dated 26-10-1978 at 11-45 a. m. At the instance of Ch. Muhammad Bakhsh, Inspector Police, Gojra, who recorded the statement of aforesaid lrfan Mahmood. According to this F. I. R., Irfan Mahmood, aged about 21 years, a student of third year, Government College, Gojra had gone to Rail Bazar of the town at about 10-30 a.m.
Alongwith his great maternal wide Ch. Sana Ullah when he saw Muhammad Naeem, Ilyas, Azam and Saeed,'all real brothers, armed with pistols and guns. According to his version, Ilyas raised lalkara and fired at him with his pistol which hit his abdomen. He was again fired at with pistol by Saeed which hit his arm. Muhammad Naeem also fired at him which hit his wrist. According to him, another unknown person also fired at him, but he was not hit by his fire. According to the F. L.R., in exercise of right of self-defence, he fired at the assailants with the pistol belonging to his maternal grandfather. According to the F. I. R., cause of the incident was that a month prior to the incident, Irfan Mahmood's brother Shaukat Mahmood was fired at by Azam in the premises of the Punjab University, Lahore. A case was registered against him under section 307, P. P. C. Which was under investigation at the time when the present incident took place. Since the case was being pursued by Irfan Mahmood and his other family members, therefore, it had caused grievance to the assailants.
5. Yet another case vide F. I. R. No, 346 dated 26-10-1978 was lodged at the same Police Station at 12-15 p. m. Against Azam, Saeed and Ilyas at the instance of Ch. Muhammad Bakhsh, Inspector Police, on the basis of the statement of Muhammad Nawaz, recorded by him. According to that F. I.
R. Muhammad Nawaz was coming from his village to Gojra at about 11-30 a. m. On the day of occurrence. When he reached near old Octroi Post, he saw Azam, Saeed and Ilyas alongwith three other persons going towards Gojra. Azam was armed with gun while others with pistols. On seeing the informant, Azam raised lalkara that Muhammad Nawaz should be killed. He fired at him with his gun which hit his right side of the body. The other assailants also fired at him, but since at the first fire the horse of the tonga ,being frightened started running fastly, therefore, his life was saved. He reached the hospital for treatment.
6. A third case was registered against Muhammad Naeem, under section 13 of Act XX of 1965 (Arms Act) on the same date vide F. I. R. No, 347 at the same Police Station:
7. It is admitted on record that challans in all the three cases were submitted in the Court of the Resident Magistrate, Gojra. They remained pending there for some time. Respondent No, 1, M. L. A., Zone 'A', Punjab, Lahore by his order dated 8-1-1970 directed that all the three cases pending in the Court of the Resident Magistrate, Gojra should be tried by a Special Military Court.
8. Writ Petition No, 1292/79 has been filed challenging the validity of the aforesaid orders transferring the case, to the Military Court for trial purposes while Writ Petition No, 968/79 has been filed for a direction to respondent No, 1 to register case at the instance of Muhammad Naeem, who was allegedly injured in the aforesaid occurrence at the hands of Irfan Mahmood.
9. Martial Law Order No, 4, issued by the Chief Martial Law Administrator, as amended by Martial Law Order No, 37 provides that Martial Law Administrator of a Zone, if he is of the opinion that it is necessary for maintenance of law and order or public tranquillity or for expeditious disposal of any case in public interest, may within the Zone concerned order that any case pending before an ordinary criminal Court be transferred to a Military Court and dealt with as provided for in sub- para. (1) of para. 2 of M. L.
0. 37 and on the making of an order under this paragraph such case OA stand so transferred forthwith. Sub-para. (I) of para. 2 of Martial Law Order 37 provides that a Military Court shall have the power to try and punish any person under Martial Law Regulations or Orders or under any other law for the time being in force.
' The provision as contained in the aforesaid Martial Law Orders is to be applied in the given circumstances after having weighed the pros and cons of every case. It cannot be applied mechanically, as it envisages certain prerequisites to be fulfilled before any order can be passed under this provision. This view has already been taken by me in Haji Abdur Rashid and others v.
State and 2 others (1).
10. In the present case, Martial Law Administrator, Zone 'A' passed his order transferring all the three cases, pending against the petitioner as well as his three brothers before the Resident Magistrate, Gojra to a Special Military Court for trial purposes without giving any reason for the transfer. As mentioned above, a criminal case already pending adjudication in an ordinary criminal Court can be transferred only if it is necessary for maintenance of law and order or public tranquillity or for expeditious disposal in public interest. Nothing has been brought on record to show that any of the aforesaid prerequisites was duly considered while passing the order how and under what circumstances the three cases pending in the ordinary criminal Court were considered to be involving maintenance of law and order or public tranquillity or otherwise they were required to be disposed of expeditiously in public interest. It is admitted that the occurrence took-place on 26-10- 1978, challans in all the three cases were submitted in December, 1978 while the order transferring the cases was passed on 8-1-1979. Did any law and order situation actually arise on account of this occurrence in Gojra town, or was any demand made by the residents of the city being interested for the sake of public tranquillity for trial of the accused persons by the Military Court ? Nothing. Has been brought on record by the respondents in this behalf. There is not even a word in the impugned order passed by respondent. No, 1, transferring the cases to Special Military Court, that their trial by that Court is necessitated for maintenance of law and order, public tranquillity or for the sake of expeditious disposal in public interest. The order, as such, has been passed in a mechanical manner.
11.
11. As provided in the Laws (Continuance in Force) Order 1 of 1977, j issued on 5-7-1977, all Courts in existence immediately before the commence merit of the Order shall continue to function and exercise their respective) (1) PLD 1979 Lab. 274 powers and jurisdiction. It means that jurisdiction of ordinary criminal Courts in relation to cases registered under the Pakistan Penal Code has not been taken away and they are allowed to function and exercise their respective powers and jurisdiction. As such, any order under Martial La Order 37, transferring a case to a Military Court for trial purposes has to be passed sparingly in very exceptional circumstances only in context of the prerequisites mentioned in paragraph 3(1) of Martial Law Order 37. I am of the view that mere mention in the transfer order that trial of the case b a Military Court is necessitated for maintenance of law and order or expeditious disposal in the public interest would not be sufficient to give jurisdiction to a military Court, unless it is specifically brought out in the order as to how and under what circumstances, facts of a particular case so require) Every citizen of this country has a vested right to be tried by the ordinary Courts, as laid down in the Constitution as well as C. M. L. A's Order No, 1 of 1977, referred to above. If such right is to be taken away, it can only be done in very exceptional circumstances justifying the trial of a civilian by a military Court.
12. The Supreme Court has, in Mr. Zulfikar All Bhutto v,. The State (1) spelt out following categories of various types of permissible actions laying down that such actions would be considered or must be deemed to be necessary in the interest of the welfare of the people and the State :--
(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 the State ; and
(d) All such measures 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 democratic institutions under the 1973 Constitution.
' Power has been given to the superior Courts by this judgment as well as the judgment in Begum Nasrat Bhutto's case to review the aforesaid acts judicially in context of the State or civil necessity.
13. It can be argued that the impugned order passed by respondent No, 1 transferring the cases to a Military Court for trial falls under (b), (c) and (d) categories and, therefore, the order is justified on the ground of State necessity. I am afraid, this contention cannot have any force in the given circumstances. Trial of civilians at this stage, when no part of the country is faced with any serious law and order situation, by the Military Courts for offences other than those covered by Martial Law Regulations of Orders will not tend to advance or promote the good of the people, nor such trial will be for the sake of ordinary orderly running,. Of the State. The main objective to be achieved by the imposition of Martia Law is the restoration of law and order and normalcy in the country an earliest possible holding of free and fair elections. It cannot be denied that law and order situation in the country, at present, is quite normal, which can be said to be congenial for holding free and fair elections. Trial PLD 1978 SC 40 civilians by the Military Courts in very exceptional circumstances may b justified, if the country is faced with serious law and order situation, so as to keep calm and tranquillity. This being not the position, I don't find any justification, irrespective of the fact that jurisdiction has been conferred upon the Military Courts to try civilians for offences under Martial Law Regulations D or Orders, or under any other law for the time being in force, for trial of the civilians for offences other than those covered by Martial Law Legulations or Orders. Such trial would not be justified under the doctrine of "State Necessity", as spelt out in the aforesaid judgments.
14. The circumstances, which led to the occurrence in the present case have been discussed above in detail, as given in the respective F. I. R's. As well as in the statement of Muhammad Naeem, brother of the petitioner. It is true that it did involve law and order question for a moment, but such situation did not last for a long time as circumstances of the case show. The rival groups did not clash with each other and as such public tranquillity E was never disturbed. Therefore, at the time when the transfer order was passed by the Martial Law Administrator, Zone 'A' question of maintenance of law and order or public tranquillity on account of the aforesaid occurrence did not arise and consequently expeditious disposal of the case in public interest was not required. As such, the impugned order dated 8-1-1979, passed by respondent No, 1 cannot be maintained.
15. The learned Assistant Advocate-General filed a miscellaneous application on 4-6-1979, after the arguments in the main case were closed by the learned counsel for the parties, alleging that the petitioner as well as his three brothers being involved in as many as 28 criminal cases, in some of which punishment had been awarded to them, were rightly sent for trial by the Special Military Court, It was also alleged in the application that the petitioner and his brothers bring habitual offenders and source of trouble in the area should be tried by the Military Court.
' The learned counsel for the writ petitioner was heard at length on this application. He made statement at the bar, in the presence of the learned counsel for the respondents, that in first three cases, under sections 307, 395/ 397 and 332, P. P. C., petitioner Muhammad Ilyas and his brother Saeed had been found not guilty and acquitted ; in case at Serial No, 4 in the application, under section 458/355, P. P. C. Ilyas was held as a suspect and after investigation no challan was ever submitted. Regarding cases at Serial Nos, 5 and 6, under sections 354/302, P. P. C. And 307/448, P. P.
C. He stated that Ilyas petitioner was found not guilty and acquitted. He submitted that as regards the case at Serial No, 7, under section 457/380, P. P. C. Ilyas was held only as suspect and, therefore, no challan was submitted. So far as case at Serial No, 8, under section 429/459/307/460/302, P. P.
C. Is concerned, the learned counsel admitted that Ilyas was found guilty and sentenced to undergo 10 years' R. I. In 1960. According to him this sentence was upheld by the High Court in appeal. It was submitted that in case at Serial No, 9 under Sections 447/308, P. P. C. Saeed, brother of the petitioner was fined Rs,
100. In case at serial No, 10, under section 307/148/149, P. P. C. Saeed was found not guilty and acquitted. In case at serial No, 11, under section 380, P. P. C. He was held as supect and no challan was ever submitted against him. In case at Serial No, 12, under the Arms Act, Saeed was again found not guilty and acquitted. In case at Serial No, 13, under section 379, P. P. C.
He was held as suspect and after investigation no challan was submitted against him. The same position obtained in case at Serial No, 14, under section 457, P. P. C. In the cases at Serial Nos, 15 to 18, under sections 395/397/307, P. P. C. ; 307, P. P. C. And 302, P. P. C. Respectively, petitioner Ilyas and his brother Saeed were found not guilty and acquitted. The case at Serial No, 19, under section 302/307/148, P. P. C. Is still pending adjudication against Ilyas. Similarly, cases at Serial Nos, 20 and 21 under sections. 392/307/352, P. P. C. And 307/353/354, are still pending adjudication against Saeed. In cases at serial Nos, 22 to 24, under sections 307/302/511/ 109, P. P. C. ; 302/24, P. P. C. And D.
P. R., Saeed, Azam, Naeem and Ilyas, who were involved therein, were not found guilty and acquitted. Case at serial No, 25, under the Goondas Ordinance is pending adjudication against Ilyas and Saeed. Similar position obtains in case at Serial No, 26, under section 307, P. P. C. Pending against Azam. The cases at Serial Nos, 27 and 28, both under section 307/149, P. P. C., pertain to the present occurrence and all the four brothers are involved therein.
16. The above statement would show that except in one case, in which Ilyas petitioner was sentenced to undergo R. I. For ten years in 1960, in rest of the cases except those which are pending adjudication, the petitioner and/or his brothers were either held as suspects and if tried were found not guilty and acquitted. Nothing can be said about the fate of the cases which are still pending against them. As such, no exceptional circumstances have been brought on record against the petitioner and his brothers for their trial by the Military Court, particularly in the light of the discussion made above when the country is not facing any serious law and order situation.
17. The petitioner has invoked extraordinary jurisdiction of this Court under Article 199 of the Constitution for a direction to the Police Officer concerned to register case at the instance of his brother, Muhammad Naeem, with regard to the occurrence dated 26-10-1978 at Police Station Gojra. There is no doubt that a Police Officer is obliged under section 154, Cr. P. C. To register case if a cognizable offence is made out. He has no discretion or option, whatsoever, to refuse registration of case.
' It is admitted on record that Muhammad Naeem was medically examined in the hospital at 10-50 a. m. And immediately thereafter his statement was recorded by a competent Police official. He had explicitly named Muhammad Naeem son of Muhammad Yousuf as one of the assailants, who got F. I. R. No, 346 recorded on the same date at 12-15 p. m. With regard to another incident. F.
1. R. No, 345, as mentioned above, was recorded on the basis of the statement of Irfan Mahmood at 11-45 a. m. With regard to the same transaction. The Investigation Officer, who personally appeared in the Court to explain as to why case could not be registered at the instance of Muhammad Naeem, stated that after his statement was recorded by Khizar Hayat, S. I., the same was handed over to Ch. Muhammad Bakhsh, Inspector, Police Station Gojra, who was recording the statement of Irfan Mah mood in the same hospital. Both the statements were sent to the Police Staticn at 11-30 a. m. The relevant record produced by the Investigating Officer, however, did not contain any entry as to when the recorded statement of Muhammad Naeem was received at the Police Station. It was stated by the Officer that since F. I. R. On the basis of the statement of Irfan Mahmood had been recorded, therefore, second F. I. R. At the instance of Muhammad Naeem with regard to the same transaction was not recorded. He referred to Zimni No, 8 showing that the statement of Muhammad Naeem was handed over to him by Khizar Hayat,, S. I. In the hospital, which was kept by him with himself as he was busy in recording the statement of 'dam Mahmood. The relevant record produced by him also shows the statement of Safdar Ali son of Sardar Ali and Lal Din son of Ghulam Qadir, recorded under section 161, Cr. P. C. With regard to the same incident. No time has, however, been mentioned as to when the statements were recorded.
18. The relevant record also contains the statements of some witnesses produced by Muhammad Naeem during the investigation of the case registered vide F. I. R. No, 345 at the instance of Irfan Mahmood. It has been stated by the Investigating Officer that after due investigation he came to the conclusion that the version given by Irfan Mahmood was correct and as such he submitted challan on that basis in the Court of the Resident Magistrate on 1-12-1978.
' The explanation put forth by the Investigating Officer for not recording F. I. R. At the instance of Muhammad Naeem, though his statement was recorded earlier, is not convincing. The matter appears to be fishy. When Muhammad Naeem was medically examined at 10.50 a. m. As shown by his medico legal report and his statement was recorded immediately thereafter, there was no reason, whatsoo er, under the law to withhold that statement and not to record the F.
1. R. According to his version. The conduct of the Investigating Officer in this behalf is not free from doubt.
19. However, in petitions invoking extraordinary jurisdiction of this Court as laid down in Ch. Shah Muhammad v. S. H.
0. City Police Station, Rahimyar Khan and 2 others (1) and Hall Muhammad Khan v. Ch. Khizar Hayat and 3 others (2) it is not necessary that in each and every case where there is omission to perform a statutory duty a direction must issue. The person aggrieved, first of all, has to satisfy that no adequate and efficacious alternate remedy is available to him under the law. Adequate remedy is provided to a complainant under section 190 read with sections 200 to 203, Cr. P. C. Section 190 provides that a magistrate may take cognizance upon receiving a complaint of facts which constitute such facts. It has been held in the aforesaid authorities that there may be cases where evidence to prove commission of an offence cannot be collected except through the police agency. The registration of a case can empower the police to collect evidence and submit report under section 173, Cr. P. C. On which the concerned Court may take cognizance of the case and try the accused. The objective of the private complaint or the registration of a case is to facilitate taking cognizance of an offence by the Magistrate so as to apprehend the offender to book. The only advantage that a complainant may have in the registration of a case over a private complaint is that complicated facts may be investigated, places or persons be searched and objectionable material seized, recoveries made and chemical or post-mortem examinations conducted through the agencies fully qualified for it and at the State expense. It has been held that if a complaint to be lodged involves any further investigation, collection of evidence, chemical examination of any article and post-mortem or medico legal examination, it will be desirable, in the interest of justice, to direct the police to register a case and proceed to investigate it in accordance with law. It has been further held that in cases where no such difficulties, as given above, are involved, this Court in exercise of its extra ordinary jurisdiction may not lend helping hand to the complainant.
' Otherwise, under the law, a held in M. Anwar, Bar-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore (3), Ch. Ata Ullah v. Ch. Mumtaz Ahmad Kahlon and 3 others (4), Nazir Ahmad v.
(1) PLD 1976 Lah. 1412 (2) PLD 1977 Lah. 424
(3) PLD 1972 Lah. 493 (4) 1973 P Cr. L d 69 Khushi Muhammad and 2 others (1) and Sawwa v. S. H.
0., Kasur etc. (2), registration of case under section 154, Cr. P. C. Cannot be refused by a Police Officer who is obliged under the law to register case as-and when information is laid before him.
20. In the present case, it is admitted that Muhammad Naeem, who has been allegedly injured at the hands of Irfan Mahmood etc. In the aforesaid occurrence has been medically examined and medico-legal report is already with him. The entire evidence leading to that occurrence can also be produced by him. He has already named some of the alleged eye-witnesses in the statement made before the Police Officer while in hospital on the same date. They can depose as to how and under what circumstances the occurrence took place. It is admitted in F. I. R. No, 345, lodged by Ch. Muhammad Bakhsh, Inspector on the basis of the statement of Irfan Mahmood, that he used pistol belonging to his maternal grandfather in self-defence and fired at Muhammad Naeem and others.
As such, recovery of weapon of crime from Irfan Mahmood is not required. The Court concerned can get the aforesaid pistol produced in the Court and get it examined by the Fire-arm Expert. As such the petitioner or his brother, has got adequate effective remedy by way of private complaint which can be tried by a competent Court of law.
' Consequently no direction is required to the respondent Police Officer concerned for registration of case in exercise of extraordinary jurisdiction under Article 199 of the Constitution. The prayer made in this behalf in Writ Petition No, 968179 is hereby refused to be granted and the writ petition is rejected without any order as to costs.
21. The cases registered against the petitioner as well as his three brothers at Police Station Gojra vide F. I. R. No, 345, dated 26-10-1978, under section 307/148/149, P. P. C. ; F. I. R. No, 346 dated 26-10- 1978 for offences under sections 307/34, P. P. C., against Muhammad Ilyas, Muhammad Saeed and Muhammad Azam ; and F.
1. R. No, 347 dated 26-10-1978 under section. 13 of Order XX of 1965 (Arms Ordinance), against Muhammad Naeem are hereby withdrawn from the Special Military Court. The record of these cases will be sent by the respondents to the learned Sessions Judge, Faisalabad for being entrusted to competent criminal Court, which will also decide the bail applications filed by the petitioner as well as his brothers in accordance with law after hearing the parties. Writ Petition No, 1292/79 is hereby accepted without any order as to costs and the order dated 8-1-1979 passed by respondent No, 1 is hereby set aside being illegal and without jurisdiction.