1. HAMOODUR RAHMAN, C. J. -These are two review petitions filed on behalf of the appellant in Criminal Appeal No. 69 of 1972 and the added respondents in Criminal Appeal No. 61 of 1972 for the review of a judgment of the Full Bench of this Court reported as State v. Zia-ur-Rahman and others PLD 1973 SC 49.
2. By this judgment, the above-mentioned criminal appeals were disposed of along with three other appeals. Criminal Appeal No. 69 of 1972 arose out of Writ Petition No. 625 of 1972 filed on behalf of the petitioner in Review Petition No. 2 of 1973, Mohammad Mukhtar Rana, to challenge the validity of an order of a Special Military Court passed on the 10th of April 1972 fn respect of an offence under the Martial Law Regulations.
3. The High Court, by a majority, took the view that orders, which were without jurisdiction or coram non judice or vitiated by malice were not protected under the aforesaid Article, but, since the petitioner, Mohammad Mukhtar Rana, had not even alleged any male fides in his writ petition, his conviction for an alleged objectionable speech at a public meeting at Layallpur on the 14th of March 1972 by the Special Military Court under the Martial Law Regulations Nos. 16-A and 89 could not be interefered with.
4. Mohammad Mukhtar Rana came to this Court in appeal by Criminal Appeal No. 69 of 1972. This Court, however, also held that the "validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in the exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or male fide".
5. Then it went on to examine whether the proceedings before the Military Courts challenged in the High Court were either coram non judice or without jurisdiction or mala fide, and came to the conclusion, agreeing with the High Court, after re-examining the grounds set out in the writ petition filed by Mr. Mohammad Mukhtar Rana in the High Court, that since no grounds of mala fides were alleged, the High Court had rightly dismissed his writ petition. The proceedings before the Special Military Court were also not found to be coram non judice or without jurisdiction.
6. The proceedings taken against the said Muhammad Mukhtar Rana and one Mohammad Riaz Shahid under sections 307/452. P. P. C. And 148, P. P. C. Along with Martial Law Regulations Nos. 16-A and 89 were, however, found both by the High Court and by this Court to be mala fide because the Military Court appeared to have "acted with an improper haste" not only "in clear disregard of the undertaking given to this Court but also in disregard of the rules of procedure prescribed in the Pakistan Army Act itself. The appeals of the Government, namely; Criminal Appeals Nos. 63 and 64 of 1972, against the order of the High Court were, accordingly, dismissed by this Court.
7. So far as the petitioners in Review Petition No. 1 of 1973 are concerned, this Court after examining the records of the proceedings before the Military Courts came to the conclusion that the proceedings taken against them before the Military Courts were "neither without jurisdiction nor coram non judice nor vitiated by mala fides either in fact or in law", yet, this Court did not allow the Criminal Appeals Nos. 61 and 62 of 1972 filed by the Government, but dismissed them on the ground that they had become infructuous because the learned Advocate-General for the Province of Punjab had in clear terms stated that the Government seeks no relief against the respondents in those appeals and had no intention whatsoever of even collecting the fines which had been imposed by the Military Court.
8. It may be mentioned here that the sentences of imprisonment had already been remitted by the Government before the appeals came up to this Court.
9. On behalf of the petitioners in Review Petition No. 1 of 1973, however, it is now urged that the finding that the proceed--ings against them in the Military Court were neither without jurisdiction nor coram non judice nor vitiated by malice had been made without giving the said petitioners a proper hearing as their learned counsel, being under the impression that the State was not pressing the appeals, had not advanced full arguments in that behalf. This finding ought to be reviewed after full hearing, for, otherwise it might affect other proceedings pending in the High Court which have been filed by these petitioners to call in question certain orders passed by the Government in relation to their publications the monthly "Urdu Digest" and the weekly "Zindagi".
10. At the very outset, we mast make it absolutely clear that no opinion has been expressed in the judgment of this Court now sought to be reviewed in respect of the action taken by the Government concerned against the said publications edited or published by these petitioners. The finding recorded is only with regard to the proceedings before the Military Court for the offences for which they were tried and convicted, namely, the publication of certain allegedly offensive materials in the said publications.
11. As for the other contention that the learned counsel appearing for them at the time of the hearing of the appeals did not make any elaborate arguments because of the concession made by the Government, it must be pointed out that the learned Advocate-General only said that the Government had already remitted the sentence of imprisonment and had also no intention of collecting the fines, but he did challenge the jurisdic--petition of the High Court to interfere with or call in question the orders of the Military Court as this Wes a question common to all the appeals Bud pressed for a decision thereon. The learned Advocate General could not, therefore, have conceded that the appeals had become infructuous. Therefore, if the learned counsel, under a misconception, did not press his arguments it was his own fault and a review cannot be granted on that account, particularly, since this Court has very fully protected the rights of these petitioners by not allowing the Government's appeals but dismissing them on the ground that they had become infructuous. The Review Petition No. 1 of 1973 is, therefore, in our view, misconceived and is, accordingly, dismissed. No order adversely affecting the rights of these petitioners had been made by which they could be legitimately aggrieved.
12. The question of limitation, if raised, was not also seriously pressed. In any event since the appeals were in fact dismissed no question of review-on this ground now arises.
13. So far as the Review Petition No. 2 of 1973 is concerned, the learned counsel points out that the reasons which impelled the Court to dismiss the Government's Appeals Nos. 6 3 and 64 of 1972 applied with equal force to the appeal of the said petitioner; namely, Criminal Appeal No 69 of 1972.
14. We are unable to agree with the learned counsel because this appeal arose out of a Writ Petition (No. 625 of 1972) which had been filed to challenge the validity of an entirely different proceeding and had nothing whatever to do with the other proceedings. The convictions which were challenged in the High Court by Writ Petitions Nos. 223 and 335 of 1972 and from which Criminal Appeals Nos. 63 and 64 of 1972 arose were recorded on the 4th April 1972 whereas the conviction that was sought to be challenged by Writ Petition No. 625 of 072 was recorded on the 10th of April 1972.
15. The main reason on which the proceedings of the Military Court were held to be vitiated in the other cases (Criminal Appeals Nos. 63 and 64 of 1972) was that the Military Court had attempted to violate an undertaking given to this Court. There was no such undertaking given to this Court in respect of the proceedings from which Writ Petition No. 625 of 1972 arose nor was there any evidence that any date had been advanced hurriedly in this case. Therefore, the two cases did not stand on the same footing and each case had to be decided on the basis of its own facts. In Writ Petition No. 625 of 1972, we are satisfied that there was no allegation of any improper or hasty action or of any malt fides and, therefore, that writ petition and Criminal Appeal No. 69 of 1972 arising therefrom were rightly dismissed.
16. The Review Petition No. 2 of 1973 is also without any substance and is, accordingly, dismissed.