(1) Rao M. Hashim Khan, (2) Mazhar Hussain, (3) Muhammad Amir, (4) Muhammad Abdullah and
(5) Rao Jamshed Ali were tried by Summary Military Court No. 30, Sahiwal, for the violation of Martial Law Regulation No. 13. All these petitioners were convicted by the said Military Court vide its order, dated 18th October, 1978, and sentenced to various terms of imprisonment.
Rao M. Hashim Khan was sentenced to 1 year's R.I.
Mazhar Hussain was sentenced to 1 year's R.I. Plus 10 lashes.
Muhammad Amir was sentenced to 1 year's R.I. And 10 lashes.
Muhammad Abdullah was sentenced to 1 year's R.I. And 10 lashes.
Rao Jamshed Ali was sentenced to 1 year's R.I.
Five lashes of Mazhar Hussain, Muhammad Amir and Muhammad Abdullah were remitted by order, dated 29th October, 1978 of Deputy Martial Law Administrator, Multan.
2. Petitioners have assailed their conviction and sentence by means of this Writ Petition. This judgment will dispose of the same.
3. The petitioners were charged under Martial Law Regulation No. 13 for attempting to excite disaffection towards the Armed Forces. It was alleged that they had raised slogans in public on 15th October, 1978 at Pakpattan. The slogans were to the following effect:-- (1)Mulak Key Ghaddaroon Ko Aik Aur Dhakka Do; (2)Martial Law Tha; (3)Yaqub Pervaz Khokhar, Aziz Malik and Abdul Rashid Ka Rasta Hamara Rasta Hay; (4)Maan Key Qaddmoon Talay Janat Hay; (5)Suno Aaj Maan Jal Rehi Hay
4. Prosecution produced Manzoor Ahmad, P.W. 1, Muhammad Zahoor, P.W. 2; Ghulam Muhammad S.H.O., P.W.3, and Muhammad Afzal Moharrir Head Constable, P.W. 4, to prove its case against the petitioners.
5. The petitioners denied the allegations against them. They maintained that they had not raised any slogans against the Armed Forces of Pakistan and had not attempted to excite disaffection towards Armed Forces in any manner whatever. They also stated that according to the F.I.R. a case under section 16 of Maintenance of Public Order Ordinance had been registered against them and that even according to the Investigating Officer the case under Martial Law Regulation No. 13 was not made out against the petitioners. They pointed out various inconsistencies and discrepancies in the statements of prosecution witnesses and maintained their innocence. They also stated that the alleged eye-witnesses i.e. Manzoor Ahmed, P.W. 1, and Muhammad Zahoor, P.W. 2, were highly interested and inimical and that they could not be relied upon. They also maintained that Muhammad Zahoor, P.W. 2 was involved in abduction and corruption cases and was a man of low character and very much under the influence of police. They also stated that police arrested them from the house of Ghulam Farid Chishti on-15th October, 1978 and not in tile manner as alleged by the prosecution witnesses. They led no evidence in defence. They, however, produced one document Exh. 'E/7' which is a certified copy of the plaint of a civil suit titled Shah Muhammad v.
Manzoor son of Bakhshaya. This document was filed in order to show that M. Naeem Hashim Khan, Advocate, son of Rao Hashim Khan, Petitioner No. 1, appeared for the plaintiff in the said civil suit against Manzoor Ahmad. P.W. 1, and it was for this reason that the said Manzoor Ahmad had deposed against Rao Hasham Khan.
6. Manzoor Ahmad, P.W. 1, stated that on 15th October, 1978 at about 3 p.m. He saw all the 5 petitioners coming in a car bearing registration No. LEU 4021. They stopped near Chatti Kaber, Pakpattan. They had placards and banners in their hands except Rao Hasham Khan. He was leading them. The accused were raising slogans already mentioned above. Police reached at the spot and arrested them. It is interesting to note that although this witness had described slogans, he had not described a particular slogan or was carrying a particular banner. This witness admitted that he was once a servant of Diwan Sahib. He also admitted that Rao Hasham Khan, Petitioner No. 1, had contested election against Diwan Sahib and that Diwan Sahib lost. He refused to admit that Naeem Hasham Khan, Advocate son of Rao Hasham Khan was counsel for Shah Muhammad in a civil suit against this witness. As discussed above, this fact stands proved by the document Exh. 'E/7'. In cross-examination he admitted:-- "I do not remember that which of the accused was carrying which of the banners, but definitely all the four accused Mazhar Hussain, Muhammad Amir, Muhammad Abdullah and Rao Jamshed Ali were having placards in their hands at the place of occurrence. I could not read what was written on the placards."
Muhammad Zahoor, P.W. 2, narrated the version of occurrence given by Manzoor Ahmad, P.W. 1 above. He could not remember, however, as to who was driving the car as according to him, he had seen the car from a distance of 200 yards. He is alleged to have signed the recovery memos.
With regard to banners and placards alleged to have been recovered from the petitioners. In the cross-examination, he admitted that he was apprehended for corruption. He also admitted that he was involved in an abduction case.
Ghulam Muhammad S.H.O. Pakpattan, P.W. 3, stated that he had received information about the PPP procession near Town Hall and he reached there alongwith other police officials when at about 3.30 p.m. The petitioners came out from car No. LEU 4021. All of them except Rao Hasham Khan were carrying banners and placards in there hands with the following slogans: "Yaqoob Pervaiz Khokhar, Aziz Malik, Abdul Rashid Ijaz Ka Rasta Hamara Rasta Ha; Mulak Ke Ghaddaroon Ko Aak Dhaka Aur Dhoo; Maan Ke Kadoom Me Janat Ha Aur Man Jal Rahi Hai; Quaid-e-Awam Janab Bhutto Ko Reha Karo; Martial Law Tha."
He arrested the petitioners there and then and registered the case. Exh. 'N' was formal F.I.R. This witness admitted in cross--examination that he did not cite any witness from the adjoining shops near the place of occurrence. He also admitted that a case was registered under section 16 of Maintenance of Public Order Ordinance.
Muhammad Afzal Moharrir Constable, P.W. 4, had recorded the formal F. I. R. Exh. 'N' on the basis of the report received from Ghulam Muhammad P.W:
3. He admitted that the case was registered under section 16 of the Maintenance of Public Order Ordinance.
7. Record of the case has been produced by Mr. Khalil-ur-Rehman's Ramdey, and the same has been perused with the help of the learned counsel for the parties and arguments heard.
8. Learned counsel for the petitioners has vehemently argued that apart from the merits of the case, the petitioners have already undergone substantial portion of the sentence and that they are likely to be released within the next few weeks.
9. Prosecution has relied upon the testimony of two witnesses namely, Manzoor Ahmad, P.W. 1, and Muhammad Zahoor, P.W.2, to establish its case against the petitioners. Both these witnesses are interested and inimical towards the petitioners. Manzoor Ahmad P.W. Was a servant of Diwan Sahib who had contested election against Rao Hasham Khan petitioner and lost. Besides, Mr. M. Naeem Hashim Khan, Advocate, a son of petitioner No. 1, was appearing against this witness in a civil case titled Shah Muhammad v. Manzoor, etc. Which was pending in the civil Court at Pakpattan. Certified copy of the plaint of the civil Court (Exh.E/7) was produced by the petitioner to establish this fact.
Manzoor Ahmad had denied this fact during cross-examination. A witness who does not accept an established fact and deliberately denies it cannot be trusted. Besides, he had not stated that which of the 5 petitioners were carrying particular banners or were raising particular slogans. He could not even read what was written on the placards. Similarly is the case with regard to the testimony of Muhammad Zahoor, P.W.
2. He was under the influence of police. He was involved in two cases-- one of corruption and other of abduction--and these cases were still pending at the time he appeared in this case as a prosecution witness. He was obviously under the influence of the police and would not dare to depose against the prosecution. No other independent person has come forward, apart from these two interested and inimical witnesses to support the case of the prosecution. The occurrence is alleged to have taken place near Town Hall Pakpattan which is a very busy place. Ghulam Muhammad S.H.O. P.W. 3 admitted that he did not cite any witness from the adjoining shops in this case.
Occurrence in this case is alleged to have taken place near the Town Hall which is a congested place yet no public witness has been examined by the prosecution in this case. Only partisan and interested witnesses have been examined. Adverse influence can naturally be drawn against the prosecution for the non-production of non-partisan and natural witnesses in the case. No doubt Ghulam Muhammad, S.H.O. P.W.3, is a public servant, but he is directly concerned with the success of the prosecution case and safely be termed as an interested witness.
Another feature of this case which must also be noted here is that the accused were charge- sheeted on 16th October, 1978 and they were convicted by the said Summary Military Court two days later. There was hardly any chance for them to adduce any evidence in their defence. Rule 23(2) of Pakistan Army Rules specifically lays down that summary of evidence shall be supplied to the accused as soon as possible and at least 24 hours before the trial. As stated above, the accused were charge-sheeted on 16th October, 1978. They were tried on the same day. Thus, this provision of law was not clearly complied with in the instant case. Rule 26 of the said Rules gives the power to an officer convening a Court Martial to dispense with the formalities of Rule 23 mentioned above provided he makes declaration to this effect specifying the nature of such exigencies or necessities under which he was forced to suspend the requirement of the said Rule.
There is no such order of the officer convening the Court Martial in the instant case. This is a serious irregularity. Learned Assistant Advocate-General was not able to controvert this factual position although four days' adjournment was allowed to him for this purpose.
It appears that the charge in this case was framed first and the F.I.R. Was lodged subsequently. The charge-sheet did not mention the specific place of occurrence. It merely mentioned Pakpattan while the F.I.R. Exh. 'N' mentioned that the place of occurrence was near Town Hall. It appears that the F.I.R. Was written subsequent to the charge--sheet.
10. In view of the above discussion, I hold that the conviction and sentence of the petitioners has been based upon highly inimical and interested evidence and that no reasonable person would convict the petitioners on the kind of evidence adduced by the prosecution in this case. This writ petition is accepted. The conviction and sentence of the petitioners is set aside. They are set at liberty forthwith unless they are wanted in some other case.
There would be no order as to costs.