Mahboob Masih petitioner was tried by Summary Military Court No. 39, Rawalpindi, for an offence under section 61 of Excise Act, 1914. He was convicted by the said Summary Military Court vide its order dated 27th November, 1978 and sentenced to six months' rigorous imprisonment. The petitioner has assailed his conviction and sentence by means of this writ petition. This judgment will dispose of the said writ petition.
2. It is alleged by the prosecution that the petitioner was found in possession of one bottle and two pitchers of wine near his residence in Gora Qabristan, Rawalpindi, without any permit on 22nd August, 1978, at about noon time.
3. Prosecution produced four witnesses in support of its case namely, Muhammad Sadiq, Sub- Inspector (P. W. 1), Khalid Mahmood (P. W. 2), Inayat Ullah (P. W. 3) and Muhammad Akram (P. W. 4).
4. The petitioner denied the allegation against him. He submitted that the bottle and pitchers of wine had been planted upon him by the Police. He further deposed that a criminal case has been registered against him due to the official position of Col. S. K. Tressler. He submitted that he was occupying a property belonging to the Christ Church, Rawalpindi, and that the new Pastor wanted him to vacate the premises, He refused to do so and thereafter he had been involved in a number of criminal cases with the help of Col. S. K. Tressler who is the Station Commander, Rawalpindi Cantt. He also stated that his wife was manhandled and injured on 22nd August, 1978 by Ch. Muhammad Sadiq, S. H. O. (P. W. 1). He went to the Police Station to lodge a report but the Police Officer Incharge of the Police Station refused to do so. Thereafter his wife sent complaints to S. S. P.
Rawalpindi, D. I. G. Rawalpindi as well as to the Chief Martial Law Administrator. The Chief Martial Law Administrator's Secretariat informed the wife of the petitioner that S. S. P., Rawalpindi, has been directed to look into the matter. He went on to say that a large number of criminal cases had been concocted against him by the S. H. O. And Col. S. K. Tressler. He pleaded innocence but led no evidence in defense.
5. The record has been produced by Mr. M. Asif Jan, learned Assistant Advocate-General, and the same has been perused with the help of learned counsel for the parties.
6. Muhammad Sadiq Sub-Inspector (P. W. 1) stated that on 22nd August, 1978 when he was on a patrol duty along with Constables at Lal Kurti Chowk, he received information that the petitioner was selling illicit liquor at Rs. 50 per bottle and if raided can be caught red-handed. A raid was accordingly organized on Gora Qabristan (graveyard). Petitioner was caught near the main gate of the graveyard. At that time he was in possession of two pitchers and one bottle of wine. He took specimen from each container for Chemical Examiner's report. He arrested the petitioner and registered the present case against him.
7. Khalid Mahmood (P. W. 2), is a Taxi Driver. He supported the version given by P. W. 1 above. Inayat Ullah (P. W. 3), was present at the time of the recovery of pitchers of wine. Muhammad Akram, (P. W.
4), is the gardner of Gora Qabristan. He too supported the version of occurrence as given by the other P. Ws.
8. Learned counsel for the petitioner has taken a preliminary objection during hearing of the case that this case was pending before Mr. Khair Muhammad Tiwana, Magistrate ist Class, Rawalpindi, when it was transferred to Summary Military Court. A report was accord--ingly sent for from the said Magistrate to ascertain whether cognizance of the case had in fact been taken by the said Criminal Court. This report was still being awaited when the learned counsel for the petitioner submitted that the cognizance of the case had in fact not been taken by the Criminal Court and proceeded to argue the case as the petitioner had already undergone major portion of the sentence.
9. Mr. M. Asif Jan, learned Assistant Advocate-General, placed an intimation from the office of Headquarters D. M. L. Sector 5, Rawalpindi, to show that this was a case of direct cognizance by the Summary Military Court and that this was not a transfer of a case pending in ordinary criminal Court.
10. Learned counsel for the petitioner has assailed the conviction of the petitioner on the ground that this was an offence under the ordinary law and the Summary Military Court has no jurisdiction to try the case. According to the learned counsel for the petitioner, Summary Military Court can only try cases relating to the offence against the Martial Law Regulations or Orders and cases relating to offences of ordinary law have to be tried by the ordinary criminal Courts. According to the learned counsel, the petitioner was convicted and sentenced under section 61 of Punjab Excise Act, 1914 which prohibits the use or possession of any intoxicant without any permit or licence. This offence is triable by ordinary criminal Court and is punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees, or with both.
11. It has been held in Muhammad Niaz v. Martial Law Administrator (t), that trial of citizens for offences other than offences created by M. L. Rs. Or M. L. Os. Cannot take place before Military Courts unless such offences are committed while resisting the Martial Law itself. The same view has been taken by a learned Judge of this Court (Zaki-ud-Din P.1 J.) in Writ Petition No. 4304 of 1978 which was decided by the learned Judge on 9th of December, 1978. The pertinent observations relevant for this purpose are reproduced below :- "Application of M. L. O. 37 for transfer of criminal cases pending in the ordinary Courts to Military Courts is not a mechanical process as envisaged by the M. L. O. Certain prerequisites have been laid down therein and in the absence thereof no case can be transferred to Military Court for trial.
The power given under M. L. O. 38 to the Martial Law Administrators has to be exercised with due care. A case already pending before an ordinary Court cannot be transferred without application of mind to the given circumstances. All the pros and cons of the case in context of the aforesaid pre--requisites have to be weighed before passing an order for transfer. It is admitted that so far as some of the penal offences are con--cerned concurrrent jurisdiction vests in the ordinary Courts as well as the Military Courts. The ordinary Courts have been allowed to perform their functions. It means that ordinarily a case registered under the provisions of Penal Code should be tried by the criminal Court except in exceptional circumstances as mentioned in M. L. O.
37. Sub- pares 2 (1) and (2) (A) M. L. O. 37 confer powers on Military Courts to try and punish any person foe an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force, upon receiving a complaint of facts, upon a report in writing of such facts made by any Police Officer or any Officer of the Armed Forces and upon informa--tion received from any person other than a Police Officer or an Officer of the Armed Forces. This provision should not be read in isolation of the provision as contained to pare. 3 (1) of M. L. O.
37. Apart from the cases registered under M. L. Rs. Or M. L. Os. Other cases cannot be tried or transferred to a Military Court unless the prerequisites as mentioned above laid down in pare. 3 (PLD 1979 Quetta 179) of M. L. O.
37 are fulfilled, otherwise working of ordinary civil Courts would come to stand still which is not warranted by law."
Thus the view taken by this Court is in consonance with the view taken by a Division Bench of the High Court of Quetta. The afore--mentioned view is further fortified by the following observations of the Supreme Court of Pakistan in Begum Nusrat Bhutto's case (PLD 1977 SC 657) at p. 717 :- "Lastly, the Court is bound to take dote of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, make full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the Civil Court regarding the same dis--putes. The necessity which justified the Proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Court."
12. Respectfully following the aforementioned view of law I hold that the trial and subsequent conviction of the petitioner by the Summary Military Court for an offence which was triable by an ordinary criminal Court is illegal and without lawful authority. His conviction and sentence is set aside. He shall be released forthwith if not required in any other case.
13. This writ petition is accepted without any order as to costs.