1. ANWARUL HAQ, C. J-This judgment will dispose of Criminal Petitions for Special Leave to Appeal bearing Nos. 26-P and 72-P of 1978.
2. On the 6th of July, 1977, at 10-30 a. m. a dacoity took place at the Saleh Khan Branch of United Bank, in the jurisdiction of Police Station, Pabbi in the Peshawar District, during the course of which one Chowkidar of the Bank, by the name of Fatehullah, was killed as a result of fire-arm injury. Another employee of the Bank, named Muhammad Anwar, was also injured. He made the First Information Report at the police station at 12-15 p. m. The same day. It was alleged that six unknown persons, armed with pistols and guns, had entered the Bank premises for the purpose of looting the same, and that as a result of their firing the two casualties already mentioned took place. The robbers then decamped from the spot, taking with them the money, which was lying outside the safe---as well as the licensed gun of the Bank Chowkidar. As a result of Police Investigations one Safir Khan was made approver, and the remaining five persons were put on trial before the Special Military Court, Peshawar. During the trial the President of the Military Court granted pardon to one other accused person, namely, Wadan Gul, with the result that the trial proceeded against four persons only. The two petitioners Zahir Shah arid Abdul Vakeel as well as the third accused Qamar Gul were convicted on various counts, and the two petitioners were awarded death sentence on charges of dacoity. The fourth accused Rasool Shah was acquitted.
3. During the pendency of the case before the Special Military Court the petitioners had invoked the Writ Jurisdiction of the Peshawar High Court to question the validity of the trial on the grounds that the Special Military Court was not following the rules of evidence as prescribed by section 102 of the Army Act ; that there was a violation of rule 23 of the Pakistan Army Act Rules inasmuch as no summary of evidence was given to the accused or their counsel, and the counsel for the petitioners was not allowed to inspect the proceedings as permitted by rule 83. Another contention raised before the High Court was that the President of the Military Court bad no power to grant pardon to Wadan Gul, and as a result this man was not competent to give evidence against the petitioners as he continued to be an accused person. These contentions were repelled by a Division Bench of the High Court by its order, dated the 4th of April, 1978.
4. Criminal Petition for Special Leave to Appeal bearing No. 26-P of 1975 is directed against this judgment of the High Court delivered in Writ Petition No. 258 of 1978. As in the meantime the trial before the Special Military Court had concluded, the petitioners had been convicted and sentenced as stated above, and the petitioners had filed another writ petition in the same High Court we consider that Petition for Leave to Appeal bearing No. 26-P of 1978 has become infructuous, as the same contentions were raised in the subsequent writ petition. We would, accordingly, dismiss Criminal Petition forLeave to AppealNo. 26-P of 1978 as having become infructuous.
5. After the Special Military Court had recorded convictions and sentences against the petitioners, they filed Writ Petition No. 605 of 1978, but the same was also dismissed by a Division Bench of the Peshawar High Court by its judgment dated the 26th of September, 1978. Criminal petition for leave to appeal bearingNo. 72-P of 1978 is directed against this judgment.
6. It was contended in the High Court that the judgment of the Special Military Court was based on no evidence; that by transfer of the case from the ordinary Criminal Court to the Special Military Court the petitioners were deprived of the right of appeal which was a vested right; and that a sentence of death could not be awarded by the Military Court. All these contentions were repelled by the learned Judges, observing that they had examined the record of the trial and found that as many as 43 witnesses were produced by the prosecution, including the two approvers who had attributed to the petitioners' effective role in the commission of the crime ; that no body had a vested right in choosing the forum for his trial and as the Military Court had been set up under a valid law, it had the jurisdiction to try the petitioners; and that the petitioners having been tried for murder and dacoity, sentences of death could be passed for these offences.
7. Leave to appeal is sought on the following grounds:
(a) That the offences committed by the petitioners were under the ordinary law of the land and not under any Martial Law Order or Regulation, and, therefore, the trial by a Special Military Court was illegal and without jurisdiction;
(b) That even if the case had been validly withdrawn under the provisions of Martial Law Order No. 4 read with the amending Martial Law Order 37, the trial stood vitiated for the reason that under the unamended Martial Law Order No. 4 only a case pending before an ordinary Criminal Court could be transferred to a Military Court, but there was no power to transfer a case directly to the Military Court at the investigation stage ;
(c) That during the trial the Special Military Court acted with material illegality inasmuch as it declined to give to the petitioners a copy of the summary of evidence as required by rule 23 of the Pakistan Army Act Rules, 1954, and that the Special Military Court had no power to grant pardon to accused Wadan Gul under sections 337 and 338 of the Criminal Procedure Code, or any provision of the Pakistan Army Act; and
(d) That the counsel for the petitioners having withdrawn from the trial as a measure of protest at the action of the Special Military Court in not providing them with copies of the summary of evidence and also in granting pardon to accused Wadan Gul without lawful authority, it was the duty of the Military Court to appoint a counsel at State expense to defend the petitioners who were facing serious charges involving the possibility of death sentence.
8. Mr. Muhammad Sardar Khan, the learned Advocate-General of the North-West Frontier Province, submits In reply that the case had been competently withdrawn under Martial Law Order No. 4 as amended by Martial Law Order No. 37, as the amending order had been given retrospec--tive effect from the 5th of July, 1977, even though it was promulgated on the 19th of February, 1978, with the result that power had been conferred on the Martial Law authorities to transfer cases directly to the Military Court even though they were not pending before the ordinary Criminal Courts at the relevant time ; and that, in any case, the present trial commenced on the 1st of March, 1978, i. e., after the original Martial Law Order had been appropriately amended on the 19th of February, 1978.
9. The learned Advocate-General further submits that although it is true that there is no specific provision in the Pakistan Army Act or the rules empowering the President of the Special Military Court to grant pardon to an accused person, yet we should give the status of a Sessions Court to the Special Military Court for the purpose of applying section 338 of the Criminal Procedure Code.
10. He submits that as copies of statements of the witnesses recorded under section 161 of the Criminal Procedure Code had been supplied to the petitioners, there was no reason for supplying them the copy of the summary of evidence, and the non supply of this copy has not caused any prejudice to the petitioners. As to the withdrawal of the learned defence counsel during the trial before the Special Military Court, the learned Advocate-General submits that, in the first place, they should not have withdrawn ; and, in the second place, they or the petitioners should have asked the Court to arrange for a new defence counsel, but no such request was made.
11. After hearing the learned counsel for both sides, we are of the view that the contentions raised urged on behalf of the petitioners raise important questions of law, touching the validity of the trial of the petitioners by the Special Military Court. We would, accordingly grant leave to appeal.
12. The appeals shall be heard early preferably, during February, 1979, on the present record. The entire Police record of the investigation as well as the record of the Special Military Court should be made available at the hearing of the appeal.
13. During the pendency of this appeal the death sentence awarded to the petitioners shall not be executed.