KARIMULLAH DURRANI, J.-This Constitutional Petition has been moved by Haji Gula Khan son of Zanjir Khan, Qambar Khel Afridi, resident of Khajuri, Khyber Agency and six others named in the heading of the petition, in the following circumstances:- That on 16-1-1978, Mr. Mumtaz A.I Khan, Deputy Superintendent, Customs lodged a report in Police Station, Lachi, District Kohat for the registration of a case against the petitioners and others under sec--tions 156(1)(8)(89) of the Customs Act, 1969, and section 4 of the Prohibition Act, read with sections 17 and 30 of Dangerous Drugs Act, 1930. The first information report. Bearing No. 77/78 dated 16-1-1978, was registered on 25-6-1978 and the case was referred on the basis thereof to the Martial Law Authorities for trial. The Martial Law Administrator, Zone 'B', Peshawar convened a Special Military Court No. 8 presided over by Lt. Col. Zafarullah Khan and 2 other members, out of whom one was a Magistrate of the Ist Class for the trial of the petitioners. On 14-3-1979, a charge- sheet was served on the petitioners by one Captain Muhammad Iqbal and the petitioners were directed to appear before the Court on 5-5-1579. The Special Military Court examined all the prosecution witnesses in the presence of the petitioners and the trial was concluded on 12-7-1979, when the learned counsel for the petitioners also submitted his closing address. The Special Military Court forwarded its findings to the Confirming Authority and in the meanwhile released the petitioners on bail. While the petitioners were awaiting the announcement of the order they, on 3- 2-1980, were served with a charge-sheet drawn by the same Officer, who had drawn the earlier charge--sheet and the petitioners were directed to appear before respondent No. 1, the Special Military Court No. 18, D. M. L. A. Headquarters Mall Road, Peshawar Cantt. On 13-2-1980, when the prosecution evidence was to be, recorded. It has transpired from the comments of the respondents that the Confirming Officer did not confirm the findings of the Special Military Court and passed the following order on 13-12-1979 when the proceedings were sent to him under section 119 of the Pakistan Army Act, 1952:- "I do not confirm the findings of the Court on all the charges."
This order was promulgated on 3-2-1980.
2. The petitioners instead of appearing before the said Court on the fixed date moved this petition to the High Court on the plea that the retrial of the petitioners by respondent No. 1 was without jurisdiction, being in violation of section 126 of the Pakistan Army Act read with the rules framed thereunder and read with M. L. O. 4 and the instructions thereunder. It has further been contended in the petition that under section 126 of the said Act, the confirming authority can only either confirm the finding or order for the revision of the case by the said Court and that too once only and that there does not exist any provision of relevant law for a second trial or retrial of the petitioners. A further ground, was taken in the petition but not pressed during the hearing, was that amalgamation of sections 17 and 30 of the Prevention of Smuggling Act, 19,77, with substantive offences under the Customs Act, 1969, rendered the entire proceedings illegal and null and void as the sections mentioned earlier contemplated entirely different procedure and forum and could not be lumped together with the latter mentioned sections. It was prayed that the retrial of the petitioners may be declared without lawful authority and of no legal effect. On 17-2-1980, this petition was admitted to full hearing and because of its admission further proceedings against the petitioners in the Special Military Court No. 18 were ordered to be stayed.
3. Mr. Zahurul Haq, Bar-at-Law, assisted by Mr. Tariq Pervez Advocate argued the case on behalf of the petitioners and Mr. Inayat Elahi Khan the learned Advocate-General appeared on behalf of the respondents. The learned counsel for the petitioners had made it clear at the very outset of the hearing that as the petitioners have already once submitted to the jurisdiction of the Special Military Court, he would not challenge the competency of the said-Court in regard to his trial rather he would confine his arguments to non-availability of any legal sanction for the retrial or the second trial of the accused petitioners by any outer Court than that which had already tried them and had returned his finding to the confirming Authority. The contention of the learned counsel is that on the conclusion of the trial a finding of fact as to the accused being guilty or not guilty has to be returned to the confirming Authority by a Special Military Court under section 119 of the Pakistan Army Act, 1952. On receipt of such a finding the confirming Authority under the provisions of section 126 of the same Act, has the power either to confirm a finding or not to confirm a finding and in case the confirming Authority does not confirm a finding it has a further option to order the revision of the case by the same Court for once and if he deems it necessary can order for the recording of the additional evidence. The learned counsel contends that in this case the Martial Law Administrator, Zone `B', who happens to be the confirming Authority was, on the receipt of the finding, pleased not to confirm the findings and as he has not further ordered the revision of the case, the proceedings have come to an end and the further steps taken by the Special Military Court No. 18 by serving afresh charge-sheet on the petitioners and by expressing its intention to record fresh evidence was without lawful authority. According to the learned counsel the effect of the non-confirmation of the proceedings without any order for revision would be the acquittal of the accused petitioners. In support of this contention the learned counsel for the petitioners has taken us to the entire field of the relevant law on the subject as laid down by the Pakistan Army Act, 1952 (hereinafter called the Act), the Pakistan Army Rules, 1954 (hereinafter called the Rules), Martial Law Order No. 4 (hereinafter called the M. L. O.) and the instructions thereunder in a strife to establish that apart from section 126 of the Act and rule 57 no other powers are available in the scheme of law to the confirming Authority. Section 126 of the Act reads as under:- "126. Revision of finding and sentence.-41) Any finding or sentence of a court-martial which requires confirmation may be once revised by order of the confirming Officer, and, on such revision, the Court, if so directed by him, may take additional evidence.
(2) The Court, on revision, shall consist of the same Officers as were present when the original decision was passed unless any of those Officers are unavoidably absent.
(3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, if a general court- martial, it still consists of five officers, if a field, general or district court-martial, of three Officers."
Rule No. 57 of the Pakistan Army Act rules reads as under:- "57. Revision.-(1) Where the finding or sentence is sent back for revision under section 126, the Court shall re-assemble in closed Court, but if the Court is directed to take fresh evidence on revision such evidence shall be taken in open Court and in the presence of the accused.
(2) When the Court are reconsidering their finding the Judge Advocate, if any, shall not be present.
(3) Where the finding is sent back for revision and the Court do not adhere to their former finding, they shall revoke the finding and sentence, and record a new finding and if such new finding involves a sentence, pass sentence afresh.
(4) Where the sentence alone is sent back for revision, the Court shall not revise the finding.
(5) After revision, the President shall date and sign the decision of the Court, and the proceedings, upon being signed by the Judge Advocate, if any, shall be at once transmitted for confirmation.
(6) Upon receiving the proceedings of a general or district court-martial, whether original or revised, the confirming authority may confirm or refuse confirmation, or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings."
4. It has to be noted at this stage that petitioners are civilians, who are not under the army discipline and the Act and rules have been made applicable in their case by virtue of M. L. O. 4 whereunder the Summary Court and the Special Military Courts were set up to try and punish the offenders of the Martial Law Regulations or of the Pakistan Penal,Code or under other penal laws, which was later on confined to only those laws, which are mentioned in paragraph 2(i) of the M. L.
O. By the amending Order (M. L. O. 27 of 1979). Under para. 3 of the M. L. O., the Martial Law Admi-- nistrator of the Zone may order for the transfer of a case pending before an ordinary criminal Court to a Military Court, if he is of the opinion that it is necessary for maintenance of law and order or public tranquillity or for expedi--tious disposal of any case in public interest and on the making of such order the case stands transferred to the Military Court. The provisions of the Act and the rules have been made applicable subject to such modifications or adaptations as the Chief Martial Law Administrator may specify under para. 5(A) of the M. L. O. Which reads as under:- "5-A. Notwithstanding anything contained in the Pakistan Army Act, 1932, or the rules made thereunder or in any other law for the time being in force, the Provisions of the said Act and the rules shall, subject to such modifications or adaptations, if any, as the Chief Martial Law Administrator may specify, apply to the promulgation and execution of sentences passed by Military Courts and to the exercise of power of pardon, commutation, remission and suspension of sentences by the competent Authorities under the said provisions."
5. It was, therefore, under the order of the Martial Law Administrator, Zone 'B' that the case was transferred to the Special Military Court No. 8 for trial which culminated in the sending of the findings of not guilty on all charges by the Court under section 119 of the Act to the Confirming Officer, who happens to be the Martial Law Administrator of the Zone himself, for confirmation. The Confirming Officer, as said earlier was pleased to withhold the confirmation. This non-confirmation was promulgated at Peshawar on 3-2-1980.
6. The respondents in their parawise comments to the Writ Petition have taken the stand that it was a case of non-confirmation of the earlier proceedings that the petitioners were now being subjected to a fresh trial by Military Court No. 18. It has further been contended on behalf of the respondents that section 126 of the Act and rule 57 are not applicable on the case. While alleging the non-applicability of the said provisions of law the respondents have not referred to any other provision of law, whereby the Authority for the retrial of the petitioner by another Special Military Court has been derived. The learned Advocate-General has also not cited at the Bar any relevant provision authorising the retrial or fresh trial of an accused in case of non-confirmation of the proceedings. According to the learned Advocate-General this power has to be read in law as inherent power of the Martial Law Authorities. Before entering into discussion on this controversy, it would be fruitful to make a reference to the provisions made under the Act and the Rules for the trial of the offences.
7. Under section 80 of the Act four kinds of courts-martial have laid down, which are general, district; field general courts martial and the summary courts-martial. By the M. L. O. The said Special Military Court has been equated to the Field General Court Martial while a Summary Military Court has been made equal to the Summary Court Martial. Powers to convene the courts martial and the composition thereof have been conferred on the Martial Law Administrator of the Zone for the cases governed under the M. L. O. Section 90 of the Act, prohibits the second trial for the same offence. This section reads as under :- "90. Prohibition of second trial.-Where any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal Court or has been summarily dealt with for an offence under section 23, he shall not be liable to be tried again for the same offence by a court-martial or be dealt with summarily in respect of it under the said section."
Section 91' of the Act lays down three years as period of limitation for the trial for certain offences of the persons on whom the Act is applicable. The Supreme Court of Pakistan has held in one of- its decisions that the period of limitation of three years laid down under this section is not available to the civilians tried under the Act by virtue of martial law orders so this section would not be applicable in the present case. The next relevant provision of law would be section 96 of the Act, which is a bar to the sub--sequent trial by criminal Court of a person who is acquitted or convicted of an offence by a court-martial. By section 96-A, 97 and 98 of the Act, the courts-martial of the different kinds or for the matter of that a Special Military Court, as set up under M. L. O., has been given powers to try any person subject to the Act, for any offence made punishable thereunder and to pass any sentence authorised by the Act, then come the sections which are procedural and are applicalbe to the trial by these Courts.
8. The finding and the sentence of the Courts are subject to the confirmation as provided by the Act, under section 119 ibid. Vide section 121 of the Act, an officer having power to convene a general court martial or an officer empowered in this behalf by warrant of any such officer is specified as a confirming authority. Section 122 places limitations on the power of the confirming authority to act within the limits of the warrant of its appointment. This is followed by another relevant section 123, whereunder the finding and sentence of a field general court martial may be confirmed by the convening officer or if the convening officer so directs by an authority superior to him. Section 124 empowers the confirming authority to mitigate, remit, or commute sentences. Section 125 deals with the confirmation of finding and sentence on board a ship. Then follows the provisions of law relevant to the case in hand i. e. Section 126 of the Act, which is reproduced above. Another provision of law, which allows the retrial of an accused person is section 130 of the Act, which deals with the cases of lunatics. It has been provided in their case that the confirming authority may order for the retrial of the case of the lunatic on the grounds given thereunder. Section 131 provides for the submission of a petition before the confirming authority and other officers named therein by any person subject to the Act, considering himself aggrieved by the findings and sentence of the Courts martial. Vide section 132 of the Act, the Federal Government or the Commander-in-Chief or any prescribed officer confirming officer in the instant case) may annul the proceedings of any court-martial on the ground that they are illegal and unjust. The chapter on the topic under discussion ends with section 133 which bars appeals against the decisions of the courts-martial or for the matter of that of a Special Military Court.
9. Similarly, the finding and sentence by the courts-martial and the confirmation thereof are dealt with under rule 50 to rule 61 of the Rules. Rule 52 deals with the finding of not guilty and requires the Court to at once sign and record the date and the finding and on being signed by the Judge/ Advocate to transmit at once the finding for confirmation. The rest of the rules excepting rule 57 reproduced above, deal with the cases. Where the finding returned is of guilty in that rule 53 lays down the procedure on the finding of conviction, while rule 54 governs the sentence and rule 55 the Mercy petition. Rule 56 is similar in nature with rule 52, and governs the cases where the sentence is awarded by the Court. Rule 57 is the only rule, which deals with the cases of non- confirmation of the finding and provides as stated earlier for the revision once only on the direction of the confirming authority. Under Rule 58 promulgation of the order of the confirming authority has been made compulsory. Rule 59 authorises the confirming officer to mitigate the sentence when the sentences is awarded on finding of an accused guilty on some but not on all charges. Rule 60 is a curing rule against informality in, or excess of punishment in awarding a sentence by the Court.
Rule 61 debars the member of the Court to or prosecutor to confirm the proceedings.
10. After fully examining the relevant provisions of the Act and the rules, one has to reach to the inescapable conclusion that the Pakistan Arm Act or the rules made thereunder nowhere allow for the trial, fresh trial o second trial of an accused, who has been found not guilty of the charges by the Special Military Court except of course when the confirming authority forms an opinion that the Court who has returned the finding may be asked to revise the same on the existing evidence or after recording additional evidence. The retrial has only been provided in case of lunatics in the circumstances mentioned therein by section 130 of the Act in a case where an accused is found lunatic by the Court and a finding to this effect is returned to the confirming authority or in the case of a court-martial whose finding does not require confirmation to the prescribed officer. The confirming officer or to whom the case is reported under the said section may if he does not confirm the finding take steps to have the accused persons tried by the same or another court- martial for the offence with which he was originally charged. The modifications in the applicability of the Act and the rules have been provided in para. 5 of the M. L. O. Which reads as under :-- "A Special Military Court shall be convened and constituted in the same manner, and shall exercise the same powers and follow the same procedure as that of a Field General Court Martial convened and constituted under the Pakistan Army Act, 1952 and the provisions of that Act and rules made thereunder shall apply to and govern all such proceedings : Provided that :-
(a) Any person exercising the powers of a Magistrate of the First Class or of a Sessions Judge may be appointed a member of the Court ;
(b) The Court may pass any sentence authorised by law or by these Regulations ;
(c) All sentences of death and amputation of hand shall be confirmed by the Chief Martial Law Administrator ;
(d) Recording of a summary of evidence, if deemed necessary, may be dispensed with in a case and in lieu thereof an abstract of evidence may be recorded ;
(e) It shall not be necessary that the prosecutor be a person subject to the Pakistan Army Act, 1952.
Any Officer of the Armed Forces of Pakistan, or of Police Force or a public prosecutor or a lawyer may be appointed as a prosecutor."
The above reproduced paragraph of tire M. L. O. Would show that in cases of sentences passed by the Military Courts, a departure has been made from the Act and the Rules in that the Courts have been made competent to pass the sentence authorised by law or by the Martial Law Regulations. It would simply mean that the Courts are not required to submit the finding of guilty to the confirming authority before passing of the sentence. Another departure is in that the sentence of death and amputation of hand would be subject to the confirmation of the Chief Martial Law Administrator. Then follows provisions for the appointment of a lawyer etc. As a prosecutor, which is again a departure from the provisions of the Act and the Rules.
11. The combined effect of the Act, the Rules and the M. L. O. Would, therefore, be that no specific provision has been made for further proceedings in case when the finding of not guilty is returned by the Court and the confirmation thereof is either refused or withheld by the confirming authority.
The learned Advocate-General contends that in case where a finding of not guilty is returned by the Court and the finding is not confirmed by the confirming authority the fact would be that the accused neither stands acquitted nor convicted and, therefore, with the non-confirmation of the finding, the trial does not come to an end. The culmination of a trial could only be either by the award of sentence against an accused on having been found guilty, or in case found not guilty, he is acquitted of the charge. The learned counsel for the respondents has therefore, contended that this being the position, it would be open for the Military Court to proceed again with the trial of the accused as if it was the first trial as the earlier proceedings by the Military Court because of non- confirmation thereof and come to naught..
12. The position taken by the learned Advocate-General does not seem to us tenable. The rules of the interpretation of the Statutes warrant that when specific provisions are available in a matter the general provision could not be applied. What the learned Advocate-General wants us to agree to is that the refusal to confirm the finding of not guilty, the general provisions in regard to the initial trial of an accused by these Courts would still applicable. Had this been the case the Legislature would not have made a special provision where the retrial of an accused was required t be taken in hand. Under section 130, when the trial Court finds that the accused is a lunatic person or that the act done was during the period of lunacy, it returns its finding to this effect to the confirming authority and the confirming authority, if so desires, orders for the retrial of the accused by the same or another Court. In such a case, the trial of the accused in the light of the arguments of the learned Additional Advocate-General, ha not culminated because no finding of guilty or not guilty has been returned by the trial Court. The only finding in that case is of the fact of the lunacy of the accused. In such a situation the law specifically provides further trial. Another provisions for the retrial is made in case of an officer of the Armed Forces, who due to the reasons recognised by law ask for retrial eve after the award of the sentence. In view of the above-stated provisions of la for retrial or second trial of - an accused, unless a specific provision is available in law, authorising the commencement of afresh trial of an accused who has been found not guilty by the trial Court on the refusal of the confirming authority to confirm the proceedings, the general authority to retry an accused cannot be read in law. The only provision of law, as very correctly pointed out by the learned counsel for the petitioners, in such a case would be section 126 of the Act and read with rule 57 of the Rules, which empowers the confirming officer to order the Court to revise their finding on the basis of the same evidence or after taking additional evidence if such taking of evidence is specifically ordered. This revision too, is to be resorted to in the case of an accused for once only.
Apart from this, the only power, according to the scheme of law, available to the convening authority or the ultimate military authorities mentioned there is of the annulment of the proceedings under section 132 of the Act. Section 126 therefore, cannot be read independent of section 90 of the Act, which a reproduced above very clearly prohibits the trial again of an accused whether acquitted or convicted of an offence. The words used in this connection are very significant, which are "shall not be liable to be tried again." The E expression 'tried again' is very wide in its scope. It covers the second or an subsequent trial of an accused once found guilty or acquitted of the charge. It also brings within the purview of its prohibitory bar the second trial irrespective of the fact it is called a fresh trial or retrial.
13. Whether the trial becomes complete or not with the finding returned by the Court or the such finding is a final order was considered in case of Mukhtar Rana by the Supreme Court of Pakistan (PLD 1973 SC 49). The facts of that case were that Mukhtar Rana was sentenced by the Special Military Court for a term of 5 years' R. I., in spite of the fact that the High Court had stayed the proceedings before the Military Court. The finding of guilty and sentence passed against the petitioner Mukhtar Rana even not by then confirmed by the confirming officer. A plea was taken before the High Court and thereafter before the Supreme Court on behalf of the Province of Punjab by the learned Advocate-General that the order of the Military Court for the lack of confirmation was not a final order, as the sentence passed by the Special Military Court had yet to be confirmed and then promulgated and until that was done the order, it was contended could not be termed as 'final'.
13-A. This argument did not find favour with the Supreme Court of Pakistan, which held that so far as the Special Military Court was concerned it had certainly recorded its "final order" in accordance with the Rules and its own Procedure (as was done in the case in hand by recording of finding of not guilty). After recording of sentence the Military Court, it was held becomes functus officio and unless its finding and sentence were sent back for revision under section 126 of the Act, the Special Military Court could not reassemble.
14. Mr. Justice Hamoodur Rehman, C. J. As be then was, while deliver--ing above-mentioned judgment for the Court, while dealing with rule 58 of the Rules held further :- "The last sentence of this rule is also significant for, it shows that the promulgation, though necessary for the completion of the confirmation was not a necessary part of the sentence. This reads as follows :- 'Until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated.
This clearly indicates that promulgation is necessary for the completion of the act of the confirming authority but not of the Military Court. Therefore, the work of the Military Court ends with the recording of the finding and the sentence, and so far as that Court is concerned, that is the 'final order'. It cannot, therefore, be said that no 'final order' was passed in this case by the Military Court."
The following extract from the notes on section 90 of the Act, as appearing in Manual of Pakistan Military Law, published by the Ministry of Defence, Government of Pakistan in 1958, would be relevant on the topic under discussion :- "It is a general principle of law that it does not permit a man to be tried twice in respect of the same offence ; but the application of the rule is not always , easy. Where the same incident, or set of incidents, gives rise to two trials, the test of whether the offence is 'the same' offence would appear to be this ; Could the accused have been lawfully convicted at the first trial upon the charge-sheet then before the Court of the offence charged at the second trial ? If so, the second trial is illegal and void . . . . . . . . . "
15. It is interesting to note that all the commentary on the retrial of an accused contained in the said book, pre-supposes the return of the verdict of guilty by the Court. In a situation where the verdict is of 'not guilty' the commentary is absolutely silent. The Supreme Court of Pakistan in the same decision, which is quoted above reiterated the well-established rule of interpretation in the context of the Act, and the Rules that "where in a statute there are both general provisions as well as special provision for meeting a particular situation, then it is the special provisions which must 'be applied to that particular case or situation instead of the general provisions". Applying this principle of generalia specialibus non derogant, the special provisions being available under section 126 of the Act on the confirmation of a finding of the Special Military Court, no generality can be brought as applicable in the case.
16. The question, which arises for determination from the, above discussion, is as to what would be the position which emerges from with--holding confirmation or from the refusal to confirm a finding of not guilty of an accused made subject to the Act and the Rules by transfer of the case under the M. L. O. For trial by a Special Military Court. The learned Advocate-General- has pressed into service a Single Bench decision of the Lahore High Court in Abdur Rashid v. Special Judge, Central and another (PLD 1977 Lah. 145), wherein it was urged on behalf of the petitioner that after holding proceedings under section 28(1) of the Income-tax Act against the petitioner, the criminal prosecution lodged under the Income-tax Act was not permissible as it would be against the rule of bar of double jeopardy of an accused as envisaged under Article 13 of the Constitution. The question arose as to whether the proceedings before the Income-tax Authorities under the section was prosecution itself, the learned Judge interpreted the word "prosecuted" in the following manner "The word "prosecuted" must mean not only that a prosecution was initiated or started but also that it must have reached the culmination stage resulting in either acquittal or conviction. What is contemplated in Article 13 is a complete prosecution. Viewed in this light it will be clear that Article 13 embodies not only the principle of autre fois convict but also the principle of autre fois acquit.
The Supreme Court of Pakistan in a recent decision namely Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121), also dealt with the maxim of autre fois convict and autre foil acquit in the context of Article 13 of the Constitution as under :- "The important word in Article 13 is "prosecution". According to Corpus Juris Secundum the term "prosecution" has different meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law-maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for tile protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding in Court ; the following up or carrying on of an action or suit already commenced until the remedy be attained ; the institution and carrying on a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word 'prosecution' appears to have been used in Article 13 of the Constitution. Significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred. Stroud's Judicial Dictionary explains the term "prosecution" amongst others in the following manner :- The 'prosecution' of an action ends with the final judgment therein (Home v. Druyff, L R 8 Exh. 214).
The word 'prosecution' is derived from a Latin word and signifies not only 'to follow', but to follow intensively" without intermission ; thus, to follow or pursue with a view to reach, execute or accomplish."
With due deference, the law laid down by their Lordships in the above--cited cases would be applicable on all fours on the question in hand. As the confirming authority in the instant case has refused to confirm the proceeding the prosecution of the petitioner has not come to an end although the trial by the Special Military Court has ended and at the same time the said) Military Court to whom the case was referred has become functus officio . The case does not remain pending before them. We are fortified in this view of the matter by Muhammad Din and others v.
The State (PLD1977SC52), which was also a case of non-confirmation of the finding of the Special Military Court :-- " . . . . There is no substance in the argument that until the confirmation of findings and the sentences of the Special Military Courts, the proceedings must be treated as 'pending' so as to fall within the ambit of Article 3. It cannot be gainsaid that so far as the Special Military Courts were concerned, they had done all what they were required to do under the Act before these Courts ceased to function with the revocation of Martial Law. Indeed, it was held by this Court in Ex- Captain Muhammad Akram Khan v. Pakistan that after a Special Military Court has rendered its findings and recorded sentence and forwarded the case for confirmation it becomes functus officio. This view was followed in the case of Sheikh Karamat A.I."
The petition is therefore accepted in the above terms with no order as to costs.