AJMAL MIAN, J.-This petition is directed against the conviction of the Summary Military Court at Sanghar (i.e. Respondent No. 1) recorded against the petitioner under Martial Law Order 59 (IV) read with Martial Law Regulation 14 sentencing the petitioner to suffer R. I. For one year and to pay fine of Rs. 20 lacs. The petitioner has prayed for the following reliefs :- "(1) Petitioner prays for a declaration that the conviction and sentence of the petitioner under Martial Law Order 59 (IV) read with Martial Law Regulation 14 by the respondent No. 1 is illegal, unlawful, ab initio void, and of no legal consequence.
(2) Petitioner prays that the honourable Court be pleased to direct the respondents Nos. 1, 2 and 5 to set the petitioner at liberty as he is being detained by the respondents Nos. 1 and 5.
(3) The petitioner prays for a direction to the respondents Nos. 1, 4, 5, 6 and 7 restraining them from recovery of fine under the impugned conviction and sentence by the respondent No. 1.
(4) The petitioner further prays for exemplary costs to be awarded to him by the respondent No. 6 the Bank at whose instance the petitioner has suffered collosal loss in liberty, money and reputation."
2. The brief facts leading to the filing of the above petition are that the petitioner is the owner of a .Ginning Factory known as Messrs Magsi Cotton Ginning Pressing Factory, Sarhari, Taluka Shahdadpur, District Sanghar. The above factory had 2 bank accounts with Messrs Allied Bank Ltd.
Hereinafter referred to as the bank i.e. Current Account No. 1425 and Cash Credit Account No. 1484 and had a cash limit up to Rs. 50 lacs. The petitioner received Bank's letter dated 19-6-1979 showing debit balance of Rs. 69,18,642.10. In reply to which the petitioner through his letters dated 26.7-1979 and 7-7-1979 pointed out the various irregularities in the accounts maintained by the Bank. Further, correspondence was exchanged between the petitioner and the Bank on the above subject. Respondent No. 4, Assistant Sub-Martial Law Administrator, Sub-Sector D, Sanghar issued a notice dated 31-10-1979 followed by another notice dated 8-12-1979 threatening to recover the alleged dues under Martial Law Order 10. Against the above notice the petitioner filed C. P. No. 269/79, in this Court which was disposed of by an order dated 17-3-1980 on the basis of assertion of the learned Additional Advocate-General that the Military Authority had no intention to recover the above amount under Martial Law Order and that the papers were forwarded to F. I. A. For taking action as deemed fit by the latter. After that F. I. R. (Case No. 3/80) dated 7-2-1980 was lodged with F.
1. A. By Imdad A.I Shaikh a Vice-President of the Bank stating therein that the complaint had been received from D. M. L. A., Sector Hyderabad, respondent No. 3 for registration of the case showing the petitioner as one of the 5 accused, which included the petitioner's Factory Manager and also the Bank Officers. According to the averments in the petition after the lodging of the F.
1. R. The petitioner in adversely coercive circumstances made to enter into an agreement dated 19-2-1980, with the Bank, whereby the petitioner was made to accept the liabilities of Rs. 27,48,000 as on 31-12- 1979. However, the petitioner was summoned by D. M. L. A. Headquarter, Hyderabad and detained, and sent to the Sub-Jail, Sanghar. Whereupon the petitioner's uncle Haji Amir A.I filed Petition No. D- 546/80, which was admitted for regular hearing, but bail application was rejected on the statement of the learned A. A.-G. That the petitioner would be tried by a Military Court for offences under section 409/4061420, P. P. C. Thereafter, the petitioner was convicted as mentioned hereinabove.
3. The case came up for summary hearing on 26-8-1980, when the question arose as to whether the instant case is covered by the majority judgment of this Court given in C. P. No. 942/80 and others. Mr. Usman Ghani Rashid learned counsel for the petitioner's contention was that there were civil transactions between the petitioner and the Bank and, therefore, the Military Court could not have taken the cognizance of the instant case. Before dealing with the above contention, it may be pertinent to examine the ratio decidenti of the above Full Bench case. In this regard it may be pertinent to quote an extract from paragraph 33 of the majority judgment which reads as follows :- "First of all the cases which are tried by the Military Courts are far too few. Recently Martial Law Order No. 77 has been promulgated which limits the jurisdiction of the Military Courts to a limited class of cases. Such cases are of treason, subversion, sedition, sabotage, seducing members of the Armed Forces or persons in the employ of Government, murder, rape, unnatural offence, kidnapping, bribery, robbery, smuggling, black marketing and a few other cases. There is also no total ouster of the ordinary Courts in these cases because the civil Courts continue to function.
What is more that jurisdiction is ousted only when Martial Law Order 77 is fully complied with."
A perusal of the above-quoted extract from the judgment of the Full Bench indicates that even according to the majority view the ouster of jurisdiction of this Court its respect of those matters which are covered under Martial Law Order 77 is conditional, namely, upon fully complyin4A with Martial Law Order 77. It, therefore, follows that if a petitioner can show that a Summary Military Court has taken cognizance of a matte not falling within the compass of Martial Law Order 77 or that the provisions thereof have not been fully complied with, a writ petition will be competent.
4. The F. I. R. In the instant case a copy whereof is on the record (Annexure M to the petition) indicates that the accused mentioned therein including the petitioner were charged with under sections 409, 471, 477-A Section 5(2) of Act II of 1947 and Martial Law Order 59 of Zone `C', Martial Law Order 59 read as follows :- "Martial Law Order 59.-(1) No person shall-
(i) Offer or attempt to offer, accept or obtain or agree to accept or attempt to obtain from any person for himself or for any other person, any gratification other than legal remuneration or any valuable thing without consideration or for a consideration which he knows to be inadequate, as a motive or reward for doing or for bearing to show favour or disfavour to any person or for inducing by corrupt or illegal means or by exercise or personal influence any public servant to do or to forbear to-do any official act ; . or
(ii) Dishonestly or fraudulently misappropriate or convert for his own use any property entrusted to him or under his control as a public servant ; or
(iii) By corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage ;
(iv) Abet any offence mentioned above.
(2) An offence under this order may be investigated by Enquiries and Anti-Corruption Establishment or any other Agency so empowered under any law for the time being in force or members of Armed Forces appointed in this behalf."
It may be observed that under above-quoted clause l(iv) even an abetter of the offences mentioned in the above Martial Law Order can be charged An abettor under above Martial Law Order need not be a public servant. In the F.
1. R. The petitioner was charged alongwith the Bank Officer inter alia under Martial Law Order 59. Therefore, prima facie, it cannot be said that Martial Law Order 59 could not have been pressed into service. It may also be observed that the offences provided for under Martial Law Order 59 are covered by Martial Law Order 77. It follows that the Military Court was competent to try the alleged offences. In view of the above Full Bench case, this Court cannot sit as a Court of appeal and cannot examine the sufficiency of the evidence produced before the Military Court. It is true that there were civil transactions between the petitioner and the Bank, but according to the F. I. R. During these transactions, criminal offences inter alia covered by Martial Law Order 59 were committed.
Since the learned counsel for the petitioner was unable to show that the offence of which the petitioner was charged with did not fall under Martial Law Order 59 and/or Martial Law Order 77 or that any of the provisions of the latter was not fully complied with,, the result is that the petition fails therefor, the same is dismissed in limine.