' A case was registered against the petitioners vide F. I. R. No, 122 dated 2-4-1978 under section 302/307/34, P. P. C. On account of having fired and killed Muhammad Afzal Javed, a friend of the complainant on 1st of April, 1978 at about 10-00 p.m. In front of the post office near Fawwara Chowk, Faisalabad. According to the F. I. R. Recorded by Muhammad Nawaz, he and the deceased along with Mumtaz Ali came to the shop of Muhammad Sadiq, a Cigarette vendor in Chowk Fawwara, Faisalabad at about 10-00 p.m. On the aforesaid date in a car belonging to the deceased. The petitioners Shaukat Anwar and his brother Muhammad Ashraf were already present at the shop.
The complainant as well as the deceased both purchased betel leaves from the shop. Muhammad Afzal deceased offered one betel leaf to Shaukat Anwar who refused to take it by saying that he would not like to take such a dirty thing which is usually taken by bad characters. This led to exchange of hot words between the deceased and both the petitioners. According to the F. I. R. The complainant as well as Mumtaz Ali, his companion both intervened and separated the quarrelling parties from each other. However, both the petitioners while going away threatened the deceased that they would teach him a lesson for the disgrace caused to them. According to the F. I. R. After the betel leaves had been taken from the shop the deceased in the company of the complainant and Mumtaz Ali left by his car to see another friend of his, living near the post office. When they reached near the post office they saw both the petitioners suddenly coming out there from.
Muhammad Ashraf petitioner was armed with '12 bore gun. He fired at the car. At this the car was stopped by the deceased. Muhammad Afzal and the complainant came out of the car while Shaukat Anwar petitioner asked Muhammad Ashraf petitioner to shoot at them as they were coming out of the car. Muhammad Ashraf at this fired at them many a time injuring both of them.
In spite of this they both proceeded towards the assailants shouting that they should not be fired at. Muhammad Afzal and the complainant both fell on the ground at a short distance on account of injuries. Some persons were attracted to the scene on account of the incident. They prevented the assailants from firing at them. Both of them went inside the post office and started firing from its roof top. In addition to the injuries caused to the deceased as well as all the complainant, the car was also damaged on account of use of fire-arm. Both of them were removed to the hospital at Faisalabad where Muhammad Afzal expired.
2. Mst. Sughra Bibi, sister of the deceased moved an application before the Martial Law Administrator Punjab Zone 'A' for trial of the petitioners by the Special Military Court mainly on the ground that they posed terror to the inhabitants of the locality for their activities by extracting money and other belongings from them. They were Goondas and were involved in many criminal cases and being rich persons nobody dared to depose against them. It was further alleged that if the case was ,tried by an ordinary Court nobody would come forward to depose against the petitioners. Respondent No, 1 Martial Law Administrator Zone 'A' passed an order on 3rd of April, 1978 on this application to the effect that the matter may be gone into again and the culprits be tried by Special Military Court.
3. The present writ petition was filed by the petitioners on 5-3-1979 challenging their trial by the Special Military Court on various grounds. It was dealt with by this Court for the first time on 10-3- 1979 calling for report and parawise comments and with a further direction that if the final order had been passed the same would not be executed meanwhile. It is admitted that both the petitioners were later on sentenced to death by the Special Military Court and the case was sent to the higher. Martial Law Authorities for confirmation of the sentence. The trial before the Special Military Court concluded on 12-7-1978 while the death sentence was announced on 15-3-1979 after the filing of the writ petition. In view of the announcement of the sentence the petitioners amended their writ petition.
4. They were found guilty under section 302/307/34, P. P. C. The Special Military Court for trial of the petitioners was constituted by respondent No, 1 on 8-6-1978. Challan in this case was submitted to P. D. S. P. On 14-4-1978. According to the petitioners it remained with him for some time but it is not known as to when he submitted the same before the Special Military Court. According to them they however, have been appearing before the Magistrate on different dates who used to remand their custody to judicial lock-up. According to the record maintained by the Special Military Court both the petitioners appeared before it on 28-6-1978 for trial purposes when they were given the charge-sheet along with the summary of evidence to be produced against them. The case was adjourned to 1-7-1978 when the prosecution evidence was partly recorded. According to the petitioners they both are public servants. Petitioner No, 1 Shaukat Anwar is sub-post-master at Faisalabad while the other petitioner Muhammad Ashraf is tube-well operator. Nothing has been brought on record to show that they are previous convicts or have been the source of trouble to the residents of the locality as alleged by the sister of the deceased in her application to the Martial Law Administrator, Punjab Zone 'A'.
5. -Mr. Rashid Aziz Khan, learned Assistant Advocate-General, Punjab, while appearing on behalf of the respondents has contended that since Military Court has 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 and the Special Military Court having been validly constituted, trial and sentence awarded to the petitioners by the same cannot be challenged by invoking extraordinary jurisdiction of this Court. He has specifically referred to sub-para. (2) of para. 2 of Chief Martial Law Administrator's Order No, 37 laying down procedure for taking cognizance of an offence, upon receiving a complaint of facts, upon a report in writing of such facts made by any public Officer or any Officer of the Armed Forces or upon information received from any person other than a Police Officer or an Officer of the Armed Forces or upon its own knowledge Or suspicion about the commission of the offence. It is contended that since the challan in the case was directly submitted by the Police Official concerned before the Special Military Court, therefore, cognizance of the offence committed by the petitioners was validly taken. It is contended that even if the order passed by respondent No, 1, Martial Law Administrator Zone 'A' is ignored, the fact remains that challan was submitted straightaway by the police in the aforesaid Court, which authorised the Court to take cognizance of the offence. According to him no exception can be taken to the jurisdiction of the Special Military Court for having tried the petitioners in the given circumstances. He has submitted that the ingredients as set out in para. 3(1) of Order 37 are not relevant so far as taking cognizance of an offence by a Military Court under sub-para. 2 of para. 2 of the order is concerned. According to him the case in question being an exceptional one has been rightly tried by the Special Military Court. Its trial is in public good and for the maintenance of law and order. An innocent person without any valid cause was killed by the petitioners and -as such their trial was necessitated by the Military Court under the relevant provisions of law.
' In reply to the arguments put forth by Mr. Rafiq Ahrnad Bajwa learned counsel for the petitioners, the learned A. A.-G.-has contended that adequate and reasonable opportunity was granted to the petitioners to prepare their case. They appeared before the Special Military Court on 28th of June, 1978 and the case was adjourned to 1st of July, 1978 for recording the prosecution evidence. They were given more than 24 hours as required by law for the preparation of their case.
6. Mr. Asif Sajjad Jan, Advocate while appearing on behalf of the complainant has argued that public interest and legal necessity demanded the trial of the case by the Military Court. According to him it was a brutal murder of a young man who had come from United Kingdom to see his relations at Faisalabad. He was murdered without any valid cause. He has placed on record some of the local newspapers containing news items demanding trial of the case by the Military Court.
According to him since the deceased was brutally murdered, therefore, it involved law and order situation and as such the petitioners were rightly tried by the Military Court.
7. Mr. Ratiq Ahmad Bajwa, learned counsel for the petitioners has raised many contentions apart from those relating to legal necessity, maintenance of law and order, public tranquillity and expeditious disposal of the case in public interest. All these contentions have not been referred to and disposed of in the present judgment as the case can be decided otherwise without referring to them.
8. As provided in the Laws (Continuance in Force) Order 1 of 1977, issued on 5-7-1977 by the Chief Martial Law Administrator, all Courts in existence immediately before the commencement of the Order shall continue to function and exercise their respective 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 in a normal manner. As such cognizance of an offence under a law other than the Martial Law Regulations or Orders by Military Court under sub-para. (2) of para. 2 of Martial Law Order No, 37 issued by the Chief Martial Law Administrator has to be examined in context of the provision as contained in Order 1 of 1977 issued on 5-7-1977. It will have to be determined that when the ordinary criminal Courts have been allowed to function and exercise their jurisdiction whether cognizance can be taken by the Military Courts of the offence, under a law other than Martial Law Regulations and Orders indiscriminately or very sparingly. The contention that since . M. L.
0. 37 gives jurisdiction to Military Courts to take cognizance of an offence under any law, therefore, no exception can be taken to such cognizance with regard to cases falling under P. P. C. Or such other law has no force in the given circumstances. If such argument is accepted then the very authority vesting in the ordinary criminal Courts as provided by the Laws (Continuance in Force)
Order 1 of 1977 would become meaningless. The language as used in Order 1 of 1977 clearly envisages that ordinary criminal Courts would continue to function and no interference will be made in exercise of their respective powers and jurisdiction. If each and every type of criminal case taking shelter under M. L.
0. 37 is forwarded to or otherwise taken cognizance of by the Military Courts then the very purpose of Order 1 of 1977 would be defeated, so far as functioning of ordinary criminal Courts is concerned.
Keeping this fact in view the Chief Martial Law Administrator issued directions to all Presidents of Military Courts to take cognizance of only such cases which created commotion or sensation in the society or shook the conscience of the public or created sense of insecurity in the public or reflected open defiance of the Government. It was further elucidated that the cases of habitual offenders and cases involving serious moral turpitude, theft. Robbery, dacoity etc. Should be tried by the Military Courts. It was stated, in the directions that this was necessary to avoid indiscriminate selection of cases for trial by. The Military Courts. The aforesaid directions may be binding for the Military Courts but cognizance of an offence under any law by the Military Courts can be judicially reviewed by the superior Courts in context of the categories of various types of permissible actions spelt out by the B Supreme Court of Pakistan in its two famous judgments in the cases of Begum Nusrat Bhutto v. Chief of Army Staff(1) and Mr. Zulfiqar Ali Bhutto v. State (2). It can be examined whether the impugned order passed or cognizance-taken
(1) PLD 1977 SC 657 (2) PLD 1978 SC 40 by any Martial Law Authority reasonably falls within any of the categories enumerated by the Supreme Court in the aforesaid two cases. The following categories have been enumerated in the said two judgments :
(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 of restoration of democratic institutions under the 1973 Constitution.
9. It was held by the Supreme Court after having examined the entire circumstances of the case in context of the aforesaid categories that Post-Proclamation Presidential Orders Nos, 3, 4 and 5 clearly fell within the objectives for which Martial Law was imposed in the country on the 5th of July, 1977 to ensure the restoration of democratic institutions under the Constitution. It is correct that the Supreme Court in the same judgment has held that the responsibility for the relevant action, its methodology and procedural details, must rest on the authority making that action. However, it was also held that the superior Courts were competent to examine whether such acts fell reasonably within any of the categories enumerated above. It can be argued that the cognizance taken by the Special Military Court in the present case falls under 'a', 'b', 'c' and 'd' categories and as such validity of the same cannot be challenged. I am afraid this contention has no force in the given circumstances. The present case is not of an exceptional nature even according to the directions issued by the Chief Martial Law Administrator. Both the petitioners are not habitual offenders. Nothing has been brought on record to show that they are previous convicts or were ever involved in criminal matters. The case does not involve serious moral turpitude such as robbery or decoity, as mentioned in the directions of the Chief Martial Law Administrator. As such it cannot be said that the incident created any commotion or sensation, sense of insecurity in the public or reflected open defiance of the Government. It was an ordinary case of murder which every day happens in our society. The occurrence may be sad resulting in the death of a young man who had come from United Kingdom to meet his relations. The fact however, remains that this sad incident was confined only to the parties concerned and nobody else was involved. It never created any law and order situation, and as such question of restoration of law and order and normalcy in the locality did not arise. If there had been commotion or feeling of insecurity or open defiance of the Government then cognizance by the Military Court may have been justified. In the absence of that 1 am afraid such cognizance cannot be said to have advanced or promoted the good of the people nor it was required for ordinary orderly running of the State. Such steps can be taken only if there is serious law and order situation or as mentioned above great commotion or sense of insecurity" prevails on account of such incidents. Such being not the position I am afraid cognizance of the offence involved in the present case by the Military Court cannot be justified under any of the categories of various types of permissible actions spelt out by the Supreme Court in the aforesaid two judgments.
10. So many murder, take place every day in the country, how many of them are taken cognizance of by the Military Courts. After all what is the standard by which it can be judged that trial of a particular criminal offence is justified by the Military Court. Cognizance of criminal cases falling under the Penal Code indiscriminately by the Military Courts cannot be held to be legal or justified being against the Supreme Court verdict in the aforesaid two judgments as well as the provision as contained in Laws (Continuance in Force) Order 1 of 1977 whereby ordinary criminal Courts have been permitted to exercise their jurisdiction in a normal manner.
11. A Military Court can take cognizance of an offence upon receiving a complaint of facts, upon a report in writing of such facts, made by any Public Officer or an Officer of the Armed Forces; or upon information received from any person other than a Police Officer or Officer of an Armed Forces. As discussed above jurisdiction given in this behalf to the Military Courts is not sacrosanct. Its exercise can be judicially reviewed as permitted by the Supreme Court. In the present case occurrence took place on the night of 1st of April, 1978, while an application was submitted to respondent No, 1, Martial Law Administrator Zone 'A', by a sister of the deceased on 3rd of April, 1978, for trial of the petitioners by the Special Military Court on the ground already mentioned in para. 2 of the judgment. Respondent No, 1, Martial Law Administrator Zone 'A' without applying his mind and without knowing the real facts of the case in the absence of the challan having been submitted by the police agency passed an order for the trial of the petitioners by the Special Military Court. There is no Martial Law Regulation or Order justifying such an order. It has been argued by the learned A.
A.-G. That irrespective of the order of respondent No, 1 challan of the case was submitted after due investigation by the Police Agency to the Military Court as provided by M. L.
0. 37, therefore, trial of the petitioners cannot be challenged. The fact remains that in view of the aforesaid order of respondent No, 1 no free hand was given to the Investigating Agency. It is admitted by P. W. 16 that investigation at one stage was entrusted to the Crimes Branch at the instance of the petitioners under the orders of Inspector-General of Police, Punjab, and without awaiting for the result of that investigation, challan was submitted to the Special Military Court. It is clear from the above discussion that criminal cases falling under the ordinary law cannot be indiscriminately referred to the Military Courts for trial purposes. When an order was passed by respondent No, 1 for trial of the present case by the Special Military Court no discretion was left with the Investigating Agency but to comply with the same. If the Investigating Agency or the Crimes Branch which was also entrusted with the investigation, as the case may be, had been given free hand then it could not be said that the case of the petitioners had been prejudiced by the aforesaid order of respondent No,
1. In this view of the matter the proceedings held by the Special Military Court against the petitioners cannot be justified under the law.
12. Mr. Asif Sajjad, Advocate, learned counsel for the complainant has placed on record photostat copy of representation alleged to have been signed by many persons of the locality demanding trial of the petitioners by the Military Court for committing this brutal murder. He has also filed copies of the news items appearing in most .Of the local papers at Faisalabad demanding trial of the case by the Special Military Court. It is admitted on record that this material was never considered by respondent No, 1 while passing his impugned order, and as such cannot have any bearing upon the facts of the case at this stage. Even if the aforesaid material had been considered by respondent No, 1 while passing his impugned order, its validity was liable to be examined by this Court by way of judicial review. Further the material referred to above was never produced before the Special Military Court in order to show that occurrence in question had created commotion, sensation in the society or sense of insecurity. I have examined the entire evidence produced on record by the prosecution. It does not contain a word about this aspect of the case. There is no doubt that the alleged eye-witnesses have deposed as to how the incident occurred but none of the P. Ws. Has uttered a word that commotion or sensation prevailed in the locality on account of this incident. In the absence of that act of respondents Nos, 1 and 2 in trying the petitioners by the Special Military Court does not fall under any, of the aforesaid categories spelt out by the Supreme Court.
13. I have refrained myself from making any observation with regard to the facts of the case, so that it may not be construed wrongly. It will be for the learned trial Court to look into every pros and cons of the case and decide the same strictly in accordance with law after hearing the parties.
Consequently the proceedings taken by the Special Military Court under the orders of respondent No, I against the petitioners and the death sentence so awarded to them are hereby set aside being without jurisdiction and of no legal effect. The record of the case which is already in this Court will now he sent to the learned Sessions Judge, Faisalabad, who will try and decide the case himself. The challan in this case will be deemed to have been submitted on the date when it was submitted before the Special Military Court at Faisalabad and the date of hearing will be accelerated accordingly.
14. Writ petition stands accepted without any order as to costs.