1. MUHAMMAD HALEEM, J. This order will govern Civil Petitions Nos. 51-R to 54-R of 1980. The first two are directed against the order of the High Court of Baluchistan, Quetta, dated 28th of April, 1980, and the other two against the order of the same High Court dated 29th of April, 1980.
2. The petitioner in Civil Petition 51-R of 1980 held the office of an Executive Engineer while the petitioner in Civil Petition No. 52-R of 1980 was posted as Divisional Accountant in the Gwadur Coastal Irrigation Division. As there were allegations of misappropriation of funds, expenditures without administrative and financial sanction and "very heavy lop-sided and suspicious booking of expenditure", the competent authority, namely the Martial Law Ad--ministrator, Zone `D' under Martial Law Order No. 17, ordered for an enquiry into these allegations against the petitioners, Idrees Ahmad Malik a former Superintending Engineer, and Ghulam Nabi, an Assistant Engineer. A Board of Enquiry was constituted under this Martial Law Order which comprised of Lt.-Col. Saleem Nasir as its President ; Mr. Atta Muhammad Jaffar, a Superintending Engineer and Major Abdul Aziz, as Members. On the objection of Idrees Ahmad Malik that he had a dispute with Mr. Atta Muhammad Jaffar, he was dropped and a fresh Board of Enquiry was re--constituted which comprised of Lt: Col. Aziz-ul-Mulk, as President and Major Iftikhar Baig and Mr. Naeem Khan Tareen, S. D. O., as Members. Muhammad Sabir Ali challenged the legality of the enquiry through Consti--tutional Petition No. 256 of 1978. After the proceedings were concluded, a report was submitted to the competent authority under para. 9(2) of the Order whereafter a notice was issued to Muhammad Sabir Ali to show cause against his dismissal and finally he was dismissed from service on 4th of June, 1979. He, accordingly, filed an amended petition to challenge the order of his dismissal as well. Notice to Ali Hadi Adney was issued on 5th of February, 1979, to show cause against his dismissal and on 23rd of June, 1979, he was also dismissed whereafter he filed Constitutional Petition No. 159 of 1979 to assail it. Subsequently, by a Notification dated 22nd of October, 1979. The petitioners were ordered to be tried by the Summary Military Court in terms of para. 9(3) of Martial Law Order No. 17 which action was again impugned by amendments in the petitions by both the petitioners. There were as many as 6 amendments of Martial Law Order No. 17.
3. Before the High Court the learned counsel for the petitioners challenged the legality of the dismissals and the Jurisdiction of the Board of Enquiry. After examining the relevant provisions of Martial Law Order No. 17, as originally promulgated, and Martial Law Order No. 71, the High Court held : "The Board of Enquiry, when it was constituted and conducted itself was so constituted without lawful authority and acted so. In such circum--stances even a curative legislation of the proper type could not have been able to cure such a defect. The explanation added by Martial Law Order No. 71 is least able to meet such a defective situation."
4. The High Court further held that in the instant case even the Constitution of the Board of Enquiry was not proper as its members did not fulfil the qualifications laid down for the members of a Commission of Enquiry under Martial Law Order No. 19. The High Court also took note of the fact that the Advocate-General "candidly conceded that a Board of Enquiry is com--pletely foreign to the provisions of Martial Law Order No. 17" and, therefore, it was not validly constituted. In regard to the allegations made concerning the conduct "of some of the members of the Board of Enquiry and the manner in which the proceedings were held", the High Court observed :- "In view of the jurisdictional defects in the constitution of Board of Enquiry as well as the oppressive manner in which some of the members conducted themselves during the course of enquiry there can be no hesitation to declare that the Board was initially constituted without lawful authority and its proceedings anti actions suffered from the same infirmity."
5. Having held so, the High Court nonetheless observed that the Notification issued under Para. 9(3) of Martial Law Order No. 17, as reconstituted, ordering the trial of the petitioners by a Summary Military Court was valid. The High Court further placed reliance on para. 10 of Martial Law Order No. 17 which provides that dismissal, or removal from service or reduction in rank or premature retirement of a person under paragraph 9 shall not absolve such person from the liability for an offence in any law committed by him while in service. Finally, the High Court dismissed both these petitions. The petitioners then filed review petitions which too were dismissed.
6. The learned counsel for the petitioners contended: firstly, that the High Court had erroneously upheld the dismissals of the petitioners after having concluded that not only was the Board of Enquiry not competent to enquire into the allegations but also because the proceedings were held in an oppressive manner and, therefore, its deliberations were illegal. Secondly, it was contended on the language of para. 9(3) of Martial Law Order No. 17 a reconstituted, that unless there was a valid dismissal, the petitioners could not be tried for an offence by a Summary Military Court. The first contention appears to us to have substance, for, on the findings reached by the High Court, the dismissals of the petitioners could not be upheld ; and as for the prosecution of the petitioners for criminal offences committed while in service, the petitioners cannot take exception to it, for, apart from the provisions of para. 9(3) which was held to be applicable by the High Court, they are liable to be tried under the laws of Pakistan ; and if, therefore, they had been arrested for being tried by a Military Court, no exception can be taken to it. On this view of the matter, it is not necessary to examine the applicability of para. 9(3) of Martial Law Order No. 17. We are also of the view that para. 10 of this Martial Law Order independently makes them liable for trial for the embezzlements or other misconduct committed by them. Accordingly, we would grant leave to appeal to the petitioners to consider the question of the legality of the dismissals as upheld by the High Court.
7. As Civil Petitions 53-R and 54-R of 1980 are mainly confined to the application of para. 9(3) of Martial Law Order No. 17, against which we have refused to grant leave in the main petitions, those have become infructuous and are dismissed as such.