Z. A. CHANNA, J.-This Constitutional Petition seeks to challenge the legality of an order passed on 13th August, 1978 by the Martial La`: Administrator, Zone `C', directing the transfer of Case No.230/1977. Under section 304-A, P.P.C. Against the petitioner, from the Court of the learned 6th Additional City Magistrate, Karachi, where it was the:: pending, to a Summary Military Court.
2. The circumstances in which this Constitutional Petition has beers filed, briefly stated, are that on 6November, 1977, at about 9-30 p. m. The petitioner is alleged, while overtaking the car driven by Lutufurd Rahman alias Latafi, dashed his car against a parked car, in consequence of which an occupant of that car, by name Anis Zaman, sustained serious head injuries and fracture of the leg bone. The petitioner is alleged to7 have made good his escape by switching of the lights of his car.
How--ever, the number of his car is stated to have been noted down by Lutufur Rahman. Injured Anis Zaman was removed to the Civil Hospital from where he was later shifted to the Jinnah Hospital, where he ultimately succumbed to his injuries on the 17th of November, 1977.
3. The F. I. R. Of the incident was lodged on 7th November, 1977 at 2 a. m. And the case was ultimately challaned, upon completion of the Police investigation, before the learned 6th Additional City Magistrate, Karachi one eye-witness, by name Qazi Anwar Ahmad, was examines by the learned Magistrate on 13th February 1978. Thereafter, on 15th August 1978, an order was passed by the Martial Law Administrator, Zone 'C', transferring the case from the Court of the learned Magistrate for trial by a Military Court. The said order, which has been signed by a Colonel on behalf of the Martial Law Administrator, reads as follows;-th "Subject: Transfer of Case Crime No. 129/77 under section 304-A, P.P.C. Vide Challan No. 230/77 dated 06 December, 1977, Police Station New Town State' v. Meraj Ahmad Junejo, son of Muhammad Khan Junejo.
1. Miraj Muhammad Khan Junejo met a mechanical transport accident on 06 November 1977. The above mentioned case is registered with Additional City Magistrate, 6-East Karachi under your office.
2. It has been decided that the above case would be tried by Military Court. Therefore, please transfer the case to Deputy; Martial Law Administrator Sector-1, with an intimation to thE6 Headquarters."
4. The case, in view of the aforesaid order, was proceeded with before the Summary Military Court No. 1, and it is understood that the --entire evidence has been recorded in the case, and it is now only fixed for Judgment, which cannot be announced in view of the stay order granted by this Court, vide its order dated 7December, 1978. Mr. Rashid Akhund, the learned counsel for the petitioner, challenged the vices of M.L.O 9 on the grounds that it was not only in conflict with Article 143 of the Constitution but further was in conflict with the provisions of the Laws (Continuance in Force) Order, L977. We do not propose to con--sider this contention as in our opinion the petition can be disposed of on a different point, namely, whether the order of transfer of the case from a civil Court to a Summary Military Court is legal and covered by any provision of law. It was contended by Mr. Abdul Sattar Shaikh, the learned counsel for the State, that the impugned order is authorised both by M.L.O. No. 9 issued by the Martial Law Administrator, Zone `C and also Martial Law Order No. 4 as amended by M.L.O. No. 37, issued by the Chief Martial Law Administrator, M.CO.
No. 9 of the Zonal Martial Law Administrator was issued on July, 23, 1977 and reads as follows:-- "In pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of the powers conferred by Martial Law Order No. 3 issued by the Chief Martial Law Administrator, the Martial Law Administrator, Zone 'C' is pleased to make the following Martial Law Order:--
(i) Contravention of the provision of any law relating to traffic offences for the time being in force shall be checked and dealt: with on the spot by mobile team consisting of Magistrate and. Such members of the Military Police and Traffic Police as are included in the team: Provided that the traffic offences involving death shall be tried by a Military Court.
(2) In addition to any punishment under paragraph 1, the route permits of the vehicle and driving licence of the driver of the vehicle shall lx liable to cancellation."
5. It will be seen that the aforesaid M. L. O. Merely provides for traffic offences involving death to be tried by a Military Court. It make no provision for transfer of cases which are pending before a civil Court to a Military Court. , Furthermore, it does, not even provide that the Military Courts shall have exclusive jurisdiction to try all traffic offences involving death. It was stated by the Additional Advocate-General that only about 10 such cases are pending before the Military Courts. Since there are hundreds of such cases. It is obvious that it is not possible for the Military Courts to try all such cases nor is it the intention of this M. L. O. That all such cases should be tried by Military Courts, otherwise exclusive jurisdiction should have been given to the Military Courts td, try such offences.
The fact that only a few of such cases are being tried by the Military Courts indicates that even the Military Authorities have construed this M.L.O. As merely permitting the trial of such offences by the Military Courts and not conferring exclusive jurisdiction upon them to try such cases, to the exclusion of the normal Courts.
6. Them is, however, a more fundamental objection to construing the impugned order of transfer as having been issued in exercise of the powers under M.L.O. 9 of the Zonal Martial Law Administrator. This un-surmountable obstacle is M.L.O. 4 as amended by M.L.O. 37 issued by the C.M.A. Originally, the said M. L. O. 4 authorised a Martial Law Administrator to transfer any case pending before .a criminal Court to a Military Court, without assigning any reasons for the transfer.th However, the said M.L.O. Was amended by M.L.O. No. 37 issued by the C.M.L.A. Which runs as follows:- "1. This Martial Law Order shall come into force at once and shall be deemed to have taken effect on the fifth day of July, 1977.
(2) In Martial Law Order No. 4, paragraphs 2 and 3 shall be sub--stituted as follows, namely:- 12.--(1) A Military Court shall have 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.
(2) A. Military Court may, for purpose of sub-paragraph' (1) take cognizance of an offence---
(a) Upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer or any Officer of the Armed Forces;
(c) upon information received from any person other than a Police Officer or an officer of the Armed Forces, or upon its own know--ledge or suspicion that such offence has been committed.
3.---(1) A 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-paragraph (1) of paragraph .2 and on the making of an order under this paragraph such case shall stand so transferred forthwith: Provided that the Military Court to which a case is transferred under this paragraph, shall not be bound to recall and rehear any witness who has already given any evidence and may act on the evidence given or produced before the criminal Court from which such case is so transferred.
(2) The provisions of this paragraph shall be in addition to and not m derogation of the provisions of paragraph 2."
7. It will be seen that the aforesaid M.L.O. Makes provision both for taking of cognizance of cases directly by a Military Court as well as transfer of cases to such Courts from the ordinary Courts. The direct cognizance by a Military Court of an offence can be taken upon sub--stantially the same conditions and circumstances as the taking cognizance of offences by Courts under section 190 (1), Cr. P. C. So far as the transfer of cases from a criminal Court to a Military Court is concerned, it can only be ordered if the Zonal Martial Law Administrator is satisfied that it is necessary.
(a) for maintenance of taw and order or public tranquillity;
(b) or for expeditious disposal of any case in public interest.
8. Before considering whether the Martial Law Administrator, Zone `C', was satisfied, while passing the impugned order, that any of the above conditions have been fulfilled, it is necessary to refer to M.L.O. No. 9 issued by the Chief Martial Law Administrator. It provides that in case of conflict between M.L.Os. Issued by the C.M.L.A. And M.L.Os issued by Martial Law Administrators, the former shall prevail. A comparison of the provisions of M.L.O. No. 9 by the Zonal Martial Law .Administrator with Martial Law Order No. 4 as amended by M. L. O. 37 7 issued by the C.M.L.A. Makes it evident that there is inconsistency between these Order and that quite clearly the latter Orders make detailed provisions both for the initial taking of cognizance of cases by Military Courts as well as the transfer of cases from ordinary Courts to Military Courts. The learned Additional Advocate-General conceded this position and accordingly submitted that the impugned order of transfer should be deemed to be under M.L.O. 4 as amended by M.L.O.
37. On our asking the learned Additional Advocate-General whether there was any material to show that the Martial Law Administrator had been satisfied that the conditions required for the transfer of cases under the aforesaid M.L.Os.
Were present in the instant case, and he bad taken due notice of such conditions, he submitted that there had been delay in the trial of the case before the learned Magistrate and since it was expedient in the public interest that the case should be expeditiously disposed of, and as it is well known that the trial before the Military Courts is concluded quickly, it should be presumed that the impugned order was made on the ground of expeditious disposal of the case in the public interest.
We regret that we see no substance in his contention. This is not what the impugned order states or even the noting on the basis of which the said order was passed. The learned Additional Advocate- General has placed before us the file, including the noting, on the basis of which the impugned order was passed. Nowhere in the noting or in the impugned order is there any reference to any delay in the disposal of the case or it being in the interest of the public on that account to transfer the case to a Military Court. The reasons given in the noting for the transfer of the case are that the father of the petitioner, who was an ex-Home Secretary in the Provincial Govern--ment, through his influence was in a position to tamper with the evidence. It has further been stated in the summary which was placed before the Martial Law Administrator that both the Investigating Officer as well a the doctor who had attended upon deceased Anis Zaman at the Jinnah Hospital had failed in their duty. It was on these considerations that the Martial Law Administrator had ordered the transfer of the case to the Military Court and not on any of the conditions specified in M.L.O. No. As amended by M. L. O. 37 issued by the C. M. L. A. The impugned order thus is not envisaged by the aforesaid Orders and accordingly we are of opinion that it is without any legal force or effect. We would accordingly set aside the said order and direct that the case should be re-transferred to the Court of the learned Magistrate who was dealing with the same before its transfer to the Military Court.
9. Before concluding this judgment we would like to state that it was submitted by Mr. Rashid Akhund, the learned counsel for the petitioner that though the offence alleged against the petitioner was a bailable one the Military Court, upon transfer of this case to it, had unauthorised cancelled the bail of the petitioner. We enquired from the learned Additional Advocate-General as to under what law the bail of the petitioner had been cancelled when he was charged with a non- bailable offence only. The learned Additional Advocate-General was unable to satisfy us on this point. Accordingly, and further as the case is being orders to be re-transferred to the Court of a learned Magistrate, we would set aside the order for the cancellation of the bail of the petitioner and direct that he should continue to be on the same bail as was granted to him by the learned Magistrate.
10. The petition is accordingly allowed. In the circumstances of the case we would make no order as to costs.
MUSHTAK ALI KAZI, J.--I agree.