1. ' SALEEM AKHTAR, J.--By this judgment all the four petitions will be disposed of as they have been directed against the-judgment of the Special Military Court by which the accused in respect of which petitions have been filed, were sentenced to imprisonment, fine and properties were confiscated. A consignment of rice was exported by Sunny Enterprises from Karachi to Dubai where large quantity of charas was recovered from it. On 22-4-1986, F.I.R. No,21 of 1985 was lodged by Syed Meraj Rasool the Assistant Director of respondent No,3 against one Abdul Samad of M/s. Sunny Enterprises and others under section 10 of the Dangerous Drugs Act II of 1930 read with section 156(1)(8) of Customs Act, 1969 and Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
2. Order 1979. The F.I.R. Reads as follows: 'Brief facts. -- On receipt of credible information that malpractices allegedly occurred in the Export of Consignment to WRSM Trading Co; Dubai, supplied by Rice Export Corporation of Pakistan through an Agent namely M/s. Sunny Enterprises, Hakimsons Bldg. , West Wharf Road, Karachi. The consignment in question was apprehended at its destination at Dubai. From the consignment prohibited material was discovered which was reportedly contraband Narcotics substance recovered in some of the rice packets of Rice Export Corporation of Pakistan.
3. ' On receipt of above information enquiry No,13/85, dated 17-4-1985, F.I.A., E.E. Wing Karachi was registered.
4. ' During the preliminary enquiry the facts revealed that 90 Tons of packed rice in 4500 cartons were shipped vide Bill of Lading No,1, dated 1-4-1985 (Shipping Bill No,49752 dated 14-3-1985) in favour of M/s. WRSM Trading Co. Dubai, per m.v. 'COMPANIA'. On arrival of consignment at Dubai, some packets of contraband Narcotics substance were detected by Du bai Authorities.
5. ' The above facts disclosed offence under section 10 Dangerous Drugs Act (Act II of 1930), read with section 3/14 Prohibition of Hadd Ordinance, 1979 and 156(1)(8) of Customs Act, 1968.
6. ' Hence registration of this case. I am investigating the case.
7. (Sd.)
8. Syed Meraj Rasool, Asstt. Director, EE/FIA, Karachi 22-4-1986'
9. ' The Investigating Officer of the F.I.A. Submitted interim charge sheet No,24 of 1985 on 9-5-1985 alongwith brief facts of the case in the Court of Special Judge, Customs and Taxation Karachi. In this interim charge sheet the following were named as accused:
(1) Abdul Saeed of M/s. Sunny Enterprises of Karachi.
(2) Haji Behram Khan of Karachi.
(3) Haji Khan of Bara Market.
(4) Akhtar Jamali, S.P.O. Custom House, Karachi. The facts as stated by the prosecution are as follows: ' "Brief facts of the case are that on receipt of credible information that malpractices allegedly occurred in the export of WRSM Trading Company, Dubai, supplied by M/s. Rice Export Corporation of Pakistan Ltd., Karachi through their Agent namely M/s. Sunny Enterprises, Hakimsons Building, West Wharf Road, Karachi. The consignment in question was apprehended at its destination at Dubai. From the consignment prohibited material was discovered in some of the rice packets of Rice Export Corporation of Pakistan Ltd., Karachi.
10. ' On receipt of above information enquiry No,13/85, dated 17-4-1985, F.I.A., E.E. Wing was registered.
11. During the preliminary enquiry the facts revealed that 90 M. Tons of packed rice crop 1984-85 in 4500 cartons were shipped vide Bill of Lading No,1, dated 1-4-1985 (Shipping Bill No,49762, dated 14- 3-1985 in favour of WRSM Trading Company, Dubai, per m.v. "COMPANIA". On arrival of the consignment some packets of contraband narcotics substance were detected by Dubai Authorities.
12. The above facts disclosed offence under section 156(1)(8) of 'Customs Act, 1969, read with section 10 of Dangerous Drugs Act (Act-II, 1930) and section 3/14 Prohibition of Hadd Ordinance, 1979.
13. Hence, this case was registered vide case F.I.R. No,21/85 dated 22-4-1985 and investigation started.
14. ' Strenuous efforts were made to trace out Abdul Saeed stated to be the Proprietor of M/s. Sunny Enterprises, Karachi but upto writing of this report, he is absconding and still not traceable. He has gone underground.
15. ' During the course of investigation, it is learnt that M/s. Shakil & Sons located at IV-B-2/9, Nazimabad, Karachi, also indented from M/s. Rice Export Corporation, Karachi for export of Basmati Rice Crops 1984-85 (18 M. Tons packed in 900 cartons) which was shipped vide Bill of Lading No,3, dated 18-3-1985 (Shipping Bill No,49987, dated 16-3-1985) per m.v. "CONCIENCE" through M/s. Shahzad Enterprises, 112, Commerce Centre, Karachi, the Handling Agent of M/s. Rice Export Corporation of Pakistan Ltd. , Karachi, to M/s. Star Board Ltd., London. During the investigation it transpired that accused Shakil Ahmed had rented Bungalow No,43, Street No,17, Khayaban-e- Mujahid, Phase-V, Defence Housing Society, Karachi, from its landlady Razia Khanam through broker Muhammad Shafi under arranged deed, while he (accused Shakil Ahmed) was accompanied by accused G.M. Haleem. The contraband narcotics were brought to and stored in the same bungalow by accused Syed Shakil Ahmed. On 17-3-1985 accused Hazrat Saeed, owner of Truck No,LS-4779 driven by Sher Afzal son of Abdul Rasheed brought the truck to the above said bungalow loaded with 300 cartons of R.E.C.P. Basnati Rice, where accused Hazrat Saeed and Chowkidar Syed Aftab Shah son of Muqaddar Shah at the bungalow unloaded sixty Master Cartons of rice and substituted the same by sixty other cartons, containing narcotics. The truck was driven away to Keamari Harbour by Driver Sher Afzal accompanied by accused Hazrat Saeed. Driver Sher Afzal drove the truck to Keamari where it was unloaded and put in the Container Yard. The cartons containing narcotics were got stuffed in the containers of W.R.S.M. Trading Company, Dubai and shipped by m.v. "COMPANIA". At Dubai the contraband narcotics were intercepted by Dubai Authorities from the Rice consignment received from Pakistan.
16. ' Accused Ghulam Muhammad, M. Ashraf and Muhammad Rafiq are employees of Sunny Enterprises, Karachi owned by absconding accused Abdul Saeed. They indent rice from R.E.C.P. For shipment to Dubai for WRSM Trading Company, Dubai.
17. ' Accused Nooruddin and Choudhry Muhammad Afzal have abetted the offence by printing R.E.C.P.
18. Master Cartons and one K.G. Packets, respectively for accused Shakil Ahmed. The cartons and packets printed by them resembled the cartons and packets of the Rice Export Corporation of Pakistan without any order or authority from the R.E.C.P.
19. ' The gang of smugglers involved in this case is linked to international narcotics smugglers. Huge quantity of more than one ton of narcotics has been smuggled in the instant case from Pakistan to Dubai. The investigation in the present case is very tedious as some accused have gone underground. Investigation is also to be conducted at Dubai to connect the links properly.
20. ' Accused Hazrat Saeed and Syed Aftab Shah have confessed their guilt before 1st Class Magistrate.
21. ' As the investigation has not so far been completed, Interim Charge Sheet is being put up as from the facts so far collected it appears that an offence punishable under section 156(1)(8) of Customs Act, 1969 has been committed by the accused.
22. ' Final charge sheet shall be submitted in the case as soon as the investigation is completed.
23. (Sd.) (9-5-1985)
24. (Syed Meraj Rasool), Assistant Director, F . A , E.E. Wing, Karachi.
25. ' A list of the following accused was filed with the Special Court of Customs and Taxation:
(1) Syed Shakil Ahmed
(2) G.M. Haleem.
(3) Syed Aftab Shah.
(4) Syed Hazrat Shah.
(5) Ghulam Muhammad.
(6) Muhammad Ashraf.
(7) Muhammad Rafique.
(8) Nooruddin.
(9) Ch. Muhammad Afzal.
(10) Noor Ahmad Abbasi.
26. ' These persons were arrested on various dates between 23-4-1985 and 30-4-1985 under No,21 of 1985 which was transferred for trial before the Special Military Court No,18 on 3-4-1985. Respondent No,3 submitted the final charge sheet before the Special Military Court in which the names of Noor Ahmad Abbasi S.P.O. Customs, Malik Manzoor Ahmed Inspector, R.E.C.P., Nazir Ahmad Inspector R.E.C.P. At Karachi, Muhammad Alam proprietor of Shazad Enterprises the handling agent of R.E.C.P., Muhammad Sharif the clerk of Premier Mercantile Service were added as accused. The names of Abdul Saeed Proprietor of Sunny Enterprises and Ghulam Muhammad and Muhammad Ashraf who were its employees were dropped from the charge-sheet. Another charge-sheet, dated 19-10-1985 was submitted by F.I.A. Before the Special Military Court in which the names of Gerald Nazreth, Karachi, Sabur-ur Rehman and Syed Shamim Shah were mentioned for the first time. Out of 18 accused only seven were shown in list as persons sent for trial. Before the Special Military Court only charge-sheet No,21 of 1985 was presented under the Authority of Martial Law Administrator. In this charge sheet the following six persons were made accused:
(1) Sabur-ur-Rehman petitioner in Petition No,1219/88.
(2) Syed Shakil Ahmed. (Petition No,309/88).
(3) G.M. Haleem (Petition No,1633/87).
(4) Syed Aftab Shah.
(5) Syed Hazrat Shah.
(6) Syed Nasim Shah (Petition No,193/89).
27. ' The charges framed against the accused persons were as follows: CHARGE SHEET ' Civilian accused (1) Sabur-ur-Rehman s/o Habibur-Rehman, (2) Syed Shakil Ahmed s/o Muhammad Ahmed, (3) G.M. Haleem s/o A.B. Haleem, (4) Syed Aftab Shah alias Juna s/o Muqadar Shah, (5) Hazrat Syed Shah s/o Ayub Shah, (6) Syed Nasim Shah s/o Hassan Shah all residents of Karachi are jointly charged with: {{TABLE}} First charge under section 10 Illegal export of dangerous of Dangerous Drugs Act 1930 drugs out of Pakistan, in that r/w CMLO-77 (Against Accused they, Nos.1 and 2 only)
28. On or about 17 March, 1985 at Karachi in collaboration of each other and with abetment of the co- accused and others illegally exported 1045 Kgs. Dangerous drugs/others to Star Board Company, London by substituting the dangerous drugs in the consignment of packeted rice, loaded in vessel m.v. (COMPANIA) which consignment was apprehended at Dubai on 13 April 1985 and thereby committed the aforesaid offence. {{TABLE}} Second charge under section 21 of Dangerous Drugs Act 1930 r/w CMLO-77 and MLR-36 (Against Accused No,3 only) Abetment of illegal export of dangerous drugs; in that he, ' On or about 17 March 1985 at Karachi in collaboration with accused 1 and 2, and others abetted commission of illegal export of dangerous drugs by procuring charas, hiring Bungalow No,43, 17th Street, Khayaban-e-Ntujahid, Phase-V, D.H.S. Karachi for accused No,2 and took necessary steps to facilitate its eventual illegal export hence committed the aforesaid offence. {{TABLE}} Third charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,4 only)
29. ' On or about 17 March 1985 at Karachi in collaboration with accused 1 and 2 and others abetted the commission of illegal export of dangerous drugs by packing in the packets and loading the same in truck owned by accused No,5 after substituting the same with packeted rice at B.No,43, 17th Street, Khayaban-e-Mujahid Phase-V, D.H.S. Karachi thus,' facilitated its eventual illegal export hence committed the aforesaid offence. {{TABLE}} Fourth charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,5 only)
30. ' On or about 17 March 1985 at Karachi with collaboration of co-accused and others abetted the offence of illegal export of dangerous drugs/charas by accused Nos.1 and 2, by providing him transport, loading of charas from B. No,43, 17th Street, Khaban-e-Mujahid Phase-V, D.H.S. Karachi by substituting with the packeted rice, getting the same transported to Karachi Port thus facilitated its eventual illegal export hence committed the aforesaid offence. {{TABLE}} Fifth charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,6 only)
31. ' Between 1983-1985 at Pakistan, UK. And Dubai abetted by planning, financing, supervising and facilitating the eventual illegal export of 1045 Kgs. Dangerous drugs/charas out of Pakistan hence committed'the aforesaid offence. {{TABLE}} Sixth charge under section Smuggling narcotic/charas out 156(1) (8) of Customs Act 1969 of Pakistan; in that they, r/w CMLO-77 (against Accused Nos.1 and 2 only)
32. ' On or about 17 March 1985 at Karachi in collaboration with each other and with active abetment of the co-accused and others smuggled out of Pakistan 1045 kgs. Charas from Shakil and Company Pakistan to Star Board Company, London by substituting the charas in the consignment of packeted rice loaded in vessel m.v. "COMPANIA" which consignment was apprehended at Dubai on'
33. 13 April 1985 hence committed the aforesaid offence.
34. ' Seventh charge under section 156(1) (8) of Customs Act 1969 r/w CMLO-77 and MLR-36 (against Accused No,3 only)
35. ' Abetment of smuggling of , narcotics out of Pakistan; in that he, ' On or about 17 March 1985 at Karachi in collaboration with co-accused and others abetted the commission of offence of smuggling by procuring charas, hiring Bungalow at Defence Housing Society (B 43, 17 Street, Khayaban-e-Mujahid Phase V, D.H.S. Karachi) for accused Shakil Ahmed and taking necessary steps to facilitate its eventual smuggling hence committed the aforesaid offence. {{TABLE}} Eighth charge under section Abetment of smuggling of 156(1) (8) of Customs Act 1969 narcotics out of Pakistan; in r/w CMLO-77 and MLR-36 that he, (against Accused No,4 only)
36. ' On or about 17 March 1985 at Karachi in collaboration with co-accused and others abetted the smuggling of narcotics by packing charas in Bungalow No,43, 17 Street, Khayaban-eMujahid Phase-V, Defence Housing Society, Karachi and loading the same in truck of accused No,5 by substituting the same with packeted rice thus facilitated its smuggling hence committed the aforesaid offence. {{TABLE}} Ninth charge under section Abetment of smuggling of 156(1) (8) of Customs Act 1969 narcotics out of Pakistan; in r/w CMLO-77 and MLR-36 that he, (against Accused No,5 only)
37. ' On or about 17 March 1985 at Karachi abetted the commission of offence of smuggling by accused Nos.1 and 2 and others by providing his transport, loading the charas from Bungalow No,43, 17 Street, Khayaban-e-Mulahid Phase-V, D.H.S. Karachi by substituting with the packeted rice, getting the same. Transported to the Karachi Port thus facilitated its eventual smuggling hence committee the aforesaid offence.
38. ' Tenth charge under section 156(1) (8) of Customs Act 1969 r/w CMLO-77 and MLR-36 (against Accused No,6 only)
39. ' Abetment of smuggling of narcotics out of Pakistan; in that- he, ' Between 1983-1985 at Pakistan, UK and Dubai, abetted by planning, financing, supervising and facilitating the eventual smuggling of 1045 kgs. Charas out of Pakistan hence committed the aforesaid offence.
40. ' The Special Military Court No,18 was constituted by the Martial Law Administrator Zone 'C' under MLOs 266, 274 and 283 which tried all the six accused jointly. The trial commenced on 3-11-1985, the sentence was pronounced on 19-12-1985 and promulgation of sentence effected from 28-12-1985.
41. Out of 84 witnesses cited by the prosecution 45 were examined. It has been alleged that confession of the accused implicating himself and other accused was obtained by coercion and threat. The accused however filed a written statement before the Special Military Court retracting from the confession. During the trial the Martial Lain Administrator Zone 'CI passed an order, dated 8-12-1985 making applicable the provision of Article 11 of the President's Order No,4 of 1982 to the proceedings of the present case. This order was passed in exercise of power under CMLO 4(5) as amended by CMLO 97. It has been alleged that this order is mala fide, unconstitutional, illegal and void. A joint application to the Special Military Court pointing out the 'illegality and inapplicability of Article 11 was filed and it was requested that the matter may be referred back to the Convening Authority under Rule 141 of the Army Rules but the Court refused to do so. The prosecution concluded its evidence on 11-12-1985. On that date the Court ordered that the accused can examine their witnesses provided they were present in Court on 12-12-1985. According to the petitioners this action was against the principle of natural justice as no opportunity to defend was provided to the accused. The Special Military Court assembled on 18-12-1985 and deliberated on the findings. It unanimously observed that F.I.A. Had committed irregularities during investigation.
42. However on 19-12-1985 the President of Special Military Court announced decision convicting the accused as follows: ' 'The Court now sentence civilian accused No,1 Sabur-ur-Rehman son of Habibur Rehman as under:
(a) Suffer rigorous imprisonment for 14 years (fourteen years)
(b) Confiscation of all movable and immovable property.
(c) Fined Rs,5,00,000 (Rupees five lac only) in default to suffer rigorous imprisonment for two years.
43. ' The Court now sentence civilian accused No,2 Shakeel Ahmed son of Muhammad Ahmed as under:--
(a) To suffer rigorous imprisonment for 14 years (fourteen years)
(b) Confiscation of all movable and immovable property.
(c) Fined Rs,2,00,000 (Rupees two lac only) in default to suffer rigorous imprisonment for one year.
44. ' The Court now sentence civilian accused No,3 G.M. Haleem son of A .B.A. Haleem as under:--
(a) To suffer rigorous imprisonment for fourteen years.
(b) Confiscation of all movable and immovable property.
(c) Fined Rs,5,00,000 (Rupees five lac only) in default to suffer rigorous imprisonment for two years.
45. ' The Court now sentence civilian accused No,4 Aftab Shah June son of Muqadar Shah as under: ' To suffer rigorous imprisonment for 5 years (five years).
46. ' The Court now sentence civilian accused No,6 Nasim Shah son of S.Hasan Shah as under:
(a) To suffer imprisonment for life (25 years).
(b) Fined Rs,20,00,000 (rupees twenty lac only).
(c) Confiscation of all movable and immovable property."
47. ' We have heard Mr. I.A. Hashmi, Mr. Rashid Akhund, Mr. Mujib Pirzada, and Mr. Mukhdum Ali Khan Advocates for the petitioners and Mr. Umer Qureshi Advocate and Mr. Muhammadally A.A.-G. For the respondents.
48. ' Before dealing with the contentions raised by the learned counsel for the petitioners we may observe that the petitioners have challenged conviction by Special Military Court which was passed before lifting of the Martial Law land was saved by Article 270-A. The grounds for challenging such order and conviction have been set out in Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 where it was observed as follows: 'Taking into account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'constitutional deviation., it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not takd away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide.
49. For this purpose it is unnecessary to draw a distinction between malice in tact and malice in law.'
50. ' While holding that Martial Law Order 107 cannot be treated as one possessing the status of an extra constitutional legislation, it was observed: "In my opinion, for the disposal of the issue before us nothing turns on the omission of the word 'duly' or addition of the word 'properly' in paragraph 4, ibid. A careful reading of this paragraph would show that the words 'previous operation' as occurring therein furnish the test for determining the kinds of acts, actions, obligations, liabilities, penalties, punishments or proceedings which fall within its ambit. Acts, actions or proceedings which could not be treated as relatable or having nexus with the 'previous operation' of the Martial Law Orders and Regulations would hardly fall within the protection offered by this paragraph. As observed by Kaikaus, J., in Abdur Rauf v. Abdul Hamid Khan PLD 1965 SC 671 no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute. Apart from that, in view of the assurance given to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or were coram non judice could not conceivably be regarded as done, taken or held in connection with the previous operation of a Martial Law Regulation or Martial Law Order. It is also doubtful if the said assurance could be circumvented by ex post facto sub-constitutional legislation by validating acts or proceedings which were patently illegal at the time they were performed. It is difficult to believe, in the absence of clear words to the contrary, that by paragraph 4 it' was intended to legalise them also."
51. ' The learned counsel for the petitioners contended that as the Special Military Court was not properly constituted the entire proceedings were corum non judice. The question before us is whether the Special Military Court was constituted under MLO 4 or President's Order 4 of 1984. MLO 4 was promulgated on 5th July, 1977 by the Chief Martial Law Administrator which established Military Courts of Criminal Jurisdiction viz. (1) Special Military Courts, and (2) Summary Military Courts.
52. Under para. 2 the Military Courts were vested with jurisdiction to try and punish any person for offence under any Martial Law Regulation, Martial Law Order or under any of the specified laws including the Customs Act 1969, Dangerous Drugs Act.. 1930 and Drugs Act 1976. The Martial Law Administrator was empowered to convene and constitute Special Military Courts. The constitution of Special Military Court is provided by para. 5 which runs as follows:-
(5) A Special Military Court shall be convened and constituted in the same manner, and shall exercise the same powers and follow the same procedure as that of a Field General Court Martial convened and constituted under the Pakistan Army Act, 1952, and the provisions of that Act and Rules made thereunder shall apply to and govern all such proceedings: ' Provided that--
(a) Any person exercising the powers of a Magistrate of the first class or of a Sessions Judge may be appointed a member of the Court;
(b) The Court may pass any sentence authorised by law or by these Regulations;
(c) All sentences of death and amputation of hand shall be confirmed by the Chief Martial Law Administrator;
(d) Recording of a' summary of evidence, if deemed necessary, may be dispensed with in a case and in lieu thereof an abstract of evidence may be recorded.
(e) It shall not be necessary that the prosecutor be a person subject to the Pakistan Army Act, 1952.
53. Any officer of the Armed Forces of Pakistan, or of Police Force or a public prosecutor or a lawyer may be appointed as a prosecutor.
(f) Where in a case, a Martial Law Administrator deems expedient, he may, by order in writing, direct that the provisions of Article II of the President's Order No,1V of 1982 shall apply to such case with effect from the date as specified in' the order whether preceding or succeeding the date of that trial."
54. ' The Special Military Court is to be constituted in the same manner as the Field General Court Martial is constituted under the Pakistan Army Act 1952. We now refer to the relevant provisions of the Army Act which are reproduced as follows: "Section 87. Composition of Field General Court Martial.--A Field General Court Martial shall consist of not less than three officers."
55. ' The word 'officer' has been defined by section 8(12) as follows: -- "Section 8(12): 'officer' means a person commissioned, gazetted or in .Pay as an officer of the Pakistan Army and includes:--
(i) an officer who being a citizen df Pakistan holds a commission in Her Majesty's Land Forces, but does not include a junior commissioned officer; and
(ii) in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the Pakistan Navy and an officer of the Pakistan Air Force."
56. By referring to the aforesaid provisions the learned counsel for the petitioners have contended that the Special Military Court, should consist of at least three Officers of Pakistan Army but as it consisted of only two officers of Pakistan Army and one Magistrate of the 1st Class, the constitution was not proper. Mr. Umer Qureshi the learned counsel for respondent No,2 contended that the proviso to para.5 permits the appointment of a Magistrate of First Class or of a Sessions Judge as a member of the Special Military Court. There is no dispute that the Special Military Court consisted of two Officers of Pakistan Army and one Magistrate of the First Class. A perusal of para.5 makes it clear that in terms of section 87 of the Army Act the Field General Court consists of not less than three Army Officers but by virtue of the proviso the Martial Law Administrator while constituting Special Military Court may appoint a Magistrate of the First Class or a Sessions Judge as a member of the Court. This proviso therefore, contemplates a change in the constitution of the Court to the extent that a Magistrate of 1st Class can be appointed as a member of the Court and therefore to that extent it varies from the constitution as provided by section 87 of the Army Act. Mr. Makhdum Ali Khan has contended that wherever it is intended to amend the constitution of Military Court as provided by the Army Act it is specifically mentioned in the Order. In this regard the learned counsel has referred to para. 7 of MLO which provides that section 88 of the Army Act which relates to the constitution of the Summary Military Court shall not apply. It is true that by para.7 of the provision of Army Act has not been applied but by para. 5 amendment has been made to the extent that a Magistrate of the 1st Class or a Sessions Judge may be appointed as a member of the Court. The option was left entirely to the Martial Law Administrator to appoint him or not as a member of the Court. The Special Military Court was therefore properly constituted. For the 1st Class Magistrate it was not necessary that he should be vested with power under section 30, Cr.P.C. MLO 4 and P.O. 4 of 1982 are two parallel legislations providing for trial by Courts constituted under them. The latter does repeal the earlier legislation expressly or impliedly. Similar question came up for consideration in C.P. No,D-1121/1987 Sadiq v. Government of Pakistan before a Division Bench of our Court where it was observed as follows:-- "We are inclined to hold that M.L.O. 4 is independent from President Order 4 of 1982 and, therefore, it was open to the Prosecuting agency to have invoked either M.L.O. 4 or President Order 4 of 1982 for the trial of the petitioners. The mere fact that President Order 4 of 1982 provides the trial of certain offences which include the offences triable under M.L.O. 4 would not exclude the application of the provisions of M.L.0.4. It is not uncommon that an offence is triable by more than one forum. In the absence of express or implied exclusion of the jurisdiction, the other forums retain the jurisdiction, for example, a murder case could have been tried by a Sessions Court as well as by a Special Military Court. The mere fact that a murder case was triable by a Special Military Court would not have excluded the jurisdiction of the Sessions Court. The prosecution had the option to initiate the proceedings either before the Special Military Court or before a Sessions Court in accordance with law."
57. ' The contention that Special Military Court was constituted under President's Order 4 of 1982 does not seem to be correct. The Special Military Court No,18 was constituted by Martial Law Order No,274 and reconstituted under MLO No,283 issued under MLO 4 and not under President's Order 4 of 1982.
58. It is true that if the Special Military Court which tried the case had been constituted under President's Order 4 of 1982 then it would not have been a properly constituted Court as Article 4 of the said Order provides that Special Military Court shall consist of (1) an Army Officer not below the rank of Lieutenant Colonel who shall be the President of the Court; (2) a Magistrate of the First Class exercising power under section 30 of the Code of Criminal Procedure, and (3) an Army Officer not below the rank of the Major. The Special Military Court No,18 did not have as its member a Magistrate of the Ist Class exercising power under section 30, Cr.P.C. However as in our view the Court was constituted under Martial Law Order 4 there is no discrepancy in the constitution of the Court.
59. ' Mr. I.A. Hashmi contended that by virtue of application of Article 11 of President's Order 4 of 1982 to the proceedings of the case the Special Military Court shall be deemed to have been constituted under President's Order 4 of 1982. In this regard he pointed out that by an order of the Martial Law Administrator Zone 'C' dated 8-12-1985, passed under paragraph 5(f) of MLO 4 as amended by MLO 97, Article 11 of President's Order 4 of 1982 dealing with special rules of evidence was made applicable to the case with effect from 17-3-1985. According to Mr. I.A. Hashmi as special rule of evidence provided under Article 11 applies to the Special Military Court constituted under President's Order 4 of 1982 the Court which tried the case should be deemed to have been constituted under the President's Order. The learned counsel further contended that the word 'Court' occurring in Article 11 of P.O. 4 of 1982 refers to Special Military Court as defined in the President's Order 4 of 1982 therefore the same meaning shall be carried wherever it is made applicable. We are unable to agree with these contentions of the learned counsel. The order, dated 8-12-1985 made Article 11 of President's Order 4 of 1982 applicable to the case and proceeding. Article 11 is a procedural provision which was lifted from Presidents Order 4 of 1982 and applied to the proceeding before the Special Military Court. Furthermore, Special Military Court No,18 was constituted much before the order applying Article 11 was passed. The trial had commenced in October 1985 much before the Article 11 was applied. Therefore mere lifting special procedure of rule of evidence and applying it to a pending case before a Court will not change the constitution of the trial Court.
60. ' The learned counsel for the petitioners contended that the accused have been convicted without any evidence on record to support the prosecution. In Petition No,1219 of 1988 and Petition No,208/1987 the entire evidence of 45 witnesses recorded by the Special Military Court has been produced which runs in 242 pages. Mr. Rashid Akhund the learned counsel has referred to Nasreen Fatima v. Bolan Medical College Quetta PLD 1978 Quetta 17 where it was observed as follows: "The next point that deserves consideration is whether the impunged orders are liable to be interfered with by the Court in exercise of powers under Article 199 of the Constitution. We are conscious of the legal position that this Court does not normally undertake appraisal of evidence nor does it readily displace findings of fact. A traditional slowness of the High Court to disturb findings of fact has become a succinct rule governing the exercise of powers in these cases.
61. However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case-law is available on the point. There have been instances when the High Courts have travelled into the realm of facts in exercise of its constitutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable views on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure such helplessness on the part of the superior Courts was not contemplated by the vast body of case-law that has come to occupy the field over the years."
62. ' He has also referred to Arshad Ahmed v. The Settlement Authority Punjab 1981 SCMR 758 where it was observed as follows: "There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is well established that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard of material evidence, then it can be set aside. Now, in the instant case, the facts and circumstances were such that no useful purpose would have been served by the High Court remanding the case to the Deputy Settlement Commissioner for determining these two questions. From the report of the Settlement Inspector it did become clear that the respondent Sain Miraj Din was asserting his possession over a portion of the plot."
63. ' Before entering into the question whether there was evidence to justify the conviction it is necessary to first advert to the question what jurisdiction High Court can exercise under Article 199 of the Constitution in such circumstances. The question has to be approached in a limited manner to consider whether the impugned order is without jurisdiction. Where evidence has been recorded it will be necessary to examine it to pin-point whether there is no evidence to support the impugned order. Such examination cannot be made in the same manner as in the case of an Appellate Court. The jurisdiction of this Court in this regard is now well defined and well-settled. In District Magistrate Lahore and another v. Syed Raza Kazim PLD 1961 SC 178 the question arose whether the Licencing Authority had exercised its discretion in an arbitratory manner. It was observed as follows: "It is not for us in proceedings of this nature to substitute our decision for the decision of the public officer or authority concerned. The Courts cannot dictate by mandamus as to the manner in which the discretion or power conferred by law should be exercised or any matter decided nor can they go into the merits of a case and decide the questions involved as if sittinig in appeal."
64. In this case refusal to grant an arms licence was challenged which power was discretionary with the licensing Authority. Reference can also be made to Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner Lahore and others PLD 1964 SC 260 where it was observed as follows: "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
65. In Nawaza v. The Additional Settlement and Rehabilitation Commissioner Gujrat and another PLD 1970 SC 39 while exercising Writ jurisdiction the learned Single Judge in the course of examination of record called for from the Central Record Room noted certain questions of fact. Those questions had not been considered and decided by the Rehabilitation Authorities but the learned Single Judge decided those questions which were confirmed by the Letters Patent Bench. The Supreme Court observed that: 'The High Court, in the exercise of its Writ jurisdiction, in a case like this, does not act as a Court of facts and ought not to enter into and decide dispute questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence."
66. ' In Shabbir Hussain v. Muhammad Afzal 1972 SCMR 47 it has been held that: "under Article 98 of the Constitution of 1962, the High Court has no jurisdiction to substitute its own decision for the decisio,n of the inferior authority, because the decisions of the inferior 'authority are not subject to the High Court's appellate jurisdiction. Where it is found that questions of fact have not been properly decided, the appropriate procedure is to set aside the impugned order of the authority concerned and send the case back to the same authority for decision in accordance with law."
67. ' In reaching this conclusion the Hon'ble Supreme 'Court has relied on Rahirn Shah v. Chief Election Commissioner PLD 1973 SC. 139, Zulfikar Khan A wan- v. Secretary Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 SCMR 530 and Begum Wazir Ahmad Industrial Home v. Niaz Begum PLD 1976 SC 214.
68. ' In Abdul Rehman v. Sultan and another PLD 1981 SC 522 it was observed as follows: "The legal position in respect. Of the limits of High Court's Constitutional jurisdiction in cases where the order or judgment has been passed by the final Tribunal or' Court having jurisdiction is quite clear from the above-mentioned judgments. We may observe that all that the High Court can do while interfering in such matters is to see whether the Tribunal or the Court in question has acted without jurisdiction or acted in violation of the relevant statute or the law as laid down by the superior Courts.
69. ' Considering the judgment of the learned Single Judge in the present case in the light of the aforementioned principles, it is evident that it was not competent for the High Court to have interfered in and set aside the judgment of the final Court, for the reasons given by it, because it is evident from a reading of the impugned judgment that the learned Judge had embarked upon a reappraisal of the evidence on the record and proceeded as if he was hearing an appeal from a subordinate Court."
70. ' From the aforestated authorities principles can be deduced that the High Court in exercise of jurisdiction under Article 199 will not enter into and decide disputed questions of fact, nor will it reappraise the evidence on record as an appellate Court and substitute its finding. The Court is however competent to examine evidence to find out whether the impugned order is based on no evidence or on a complete misreading of evidence. Where the Court comes to the conclusion that there is no evidence to support the impugned judgment or it is a result of misreading of evidence, it will not hesitate to interfere.
71. ' We have examined the evidence in the light of the above authorities and principles and are of the view that even after the exclusion of the confession, it cannot be said that there is no evidence to justify the impugned order. Nor the learned counsel for the petitioners have pointed out to the blatant misreading of evidence manifesting denial of justice. The learned counsel for the petitioners have contended that by applying Article 11, the statements of the accused which they had made before the Police were made basis for conviction. The evidence recorded by the Special Military Court consists of 45 prosecution witnesses in which they have tried to prove all the charges made against the accused persons. The statement of accused which was recorded by the Investigating Officer is not the only piece of evidence which has been made basis for conviction.
72. ' The learned counsel pointed out that the Special Military Court was of the view that there was no evidence at all but on reference being made to CMLA it was asked to convict the accused. In this regard reference has been made to the observation of the Special Military Court which reads as follows:-- 'It is submitted that the investigation conducted in this case has not been done as per laid down procedure in the Cr.P.C. It does not stand to reason that such an important case in which prestige of the country was involved and the President of Pakistan was himself interested to get the truth and punish the culprits, such negligence was done. The irregularities committed by F.I.A. Have already come on record of this Court through the statements of various P.Ws., e.g. P.W.14 Muhammad Sadiq very clearly tried to put the blame on Colonel Hassan President of Special Investigation Team that he did not know anything about the mandate of Special Investigation Team, but he was merely doing only what Colonel Hassan asked him to do as per his wishes. He got typed the exact ditto copy of P.W.19 Gerald Nazareth word by word from his written statement which he had given before the F.I.A., instead of recording P. W's actual statement, without even recording it, he signed it. This was confirmed in the Court. The reference about tape-recording of Gerald Nazareth's statement was not even mentioned anywhere, the cassette was neither sealed nor authenticated to say when it was recorded. It is true/likewise for many of the other job or officers recording statement/carrying out investigations.
2. There are so many of irregularities in seizure memo and recording of evidence for example Mian Habib seized two cars belonging to accused Shakeel's wife and his brother-in-law from the shop of Estate Broker an absolute illegal seizure, because those cars were neither involved in the commission of the crime, nor owned by the accused, nor recovered from the place of offence.
73. Though this seizure was made on 24-4-1985 and the seizure of office of Vakiluddin P.W.6 on 27-4- 1985 yet it had the same Mushir namely Arshad Ansari present at both the places on two different dates. It is interesting to note that the F.I.A. Did not release these cars when they came to know that these were illegally kept but they allowed Abdul Saeed of Sunny Enterprises who was accused No,1 in their own interim challan and also in Dubai F.I.R. To go on a personal bond after merely having stayed in the F.I.A. As on 29th June for an hour or so whereas he had been declared absconder almost two months ago, his car, house and office and had been seized on. 23 April, 1985 which have not been released till today. Mr. Abdul Saeed is still an absconder.
3. The entire case is based on the statement of driver Sher Afzal P.W.15 but the 1.0. Did not either corroborate his statement or establish his presence in house No,43 the seizure at House No,43 was defective. The accused were shown as present at House No,43. Street No,17 at 2105 hours and stayed there till 2230 hours as per statement of P.W.43 but they were shown as arrested at 2115 hours on the same day in F.I.A. By P.W.41. P.W.16 Muhammad Umer who was the Mushir in this seizure committed before the Court that the items produced in the Court for that seizure are not the same, but similar to the items which were seized. No evidence was produced to confirm that accused No,4 was actually present in the House on 17th March, 1985, whether the said house was in the actual possession of accused Shakeel. No evidence has been given to prove that Hazrat Saeed accused No,5 accompanied Driver Sher Afzal on 17th March, 1985. P.W.7 Haq Nawaz did not see him with the truck at departure of truck LS 4779 from Pipri Godown and P.W.19 or any one else see him at the Karachi Port with the truck, where the truck arrived later. No effort was made to confirm if 'Alrah' company is owned by accused 'No, 6 Nasim Shah. Accused No,1 Sabur-ur-Rahman as per his passport had visited Pakistan three times between 22nd April to 11th July, 1985, the date of arrest. He was in Karachi/Pakistan from 11th April, 1985 whereas G.M. Haleem/Shakeel were arrested on 23rd April, 1985. He left Pakistan on 29th April, 1985 and came back to Pakistan again on 8th May, 1985.
74. No effort was made by F.I.A. To check why was he in Pakistan? Did he meet G.M.Haleem/Shakeel to help them? Is it correct that he was visiting Pakistan in connection With his own business? If he was involved in the case, why did he come back to Pakistan after 29 April, 1985.
4. No effort was .Made to disprove the investigation report of the Dubai Police, which was received by F.I.A. In May/June 1985. Why F.I.A. Doubted that report is neither known nor brought on record.
75. F.I.A. Just presumed that the confession of Manager Saeed-ud-Din of WRSM is false and so is the investigation report of the Dubai Police. But the motive of Dubai Police to make such false report has not been indicated. No, effort was made to establish any link with the people who supplied Charas, so much so that as per seizure memo. Exhibit JJ at serial 19, recovery of 200 grams of suspected hasheesh (charas) from House No,43 on 23rd April, 1985 has been written but this was not produced in the Court. Therefore its non-existence actually on ground but mentioning it in the seizure memo. May well indiciate the intentions of F.I.A. The absconder accused Noor Ahmed Abbasi, who was the link between the supplier of charas and the accused in this case as per the story of F.I.A. Was granted bail by the Special Judge Customs on the recommendation of 1.0. P.W.41, who admitted in the Court that he made such recommendations on the orders of his superior officers. No effort was made to prove the financial connections/financial position of the so-called charas supplied by Behram Khel. It was only on the direction of this Court to P.W.41 on 8th December, 1985 that he supplied the Court with the Bank statements of Behram Khel and who introduced him as account-holder in the Bank. Behram Khel deposited/withdraw Rupees 8 lacs in the bank but there is no mention of Rs,4.5 lac in the Bank statement, the amount alleged to have been paid by accused Haleem to him. No effort was made to check/confirm this.
5. The Court can bring out many other findings of the F.I.A., but it is beyond the scope of this Court.
76. We just wanted to highlight the tragedy that the Special Military Courts are left at the mercy of Investigating Officers/F.I.A., who make their own theories and then like to justify these, by manufacturing evidence, because they know that if the accused get convicted or acquitted, they are not answerable. It is the reputation of Martial Law that is at stake and not their own reputation.
77. ' Signed at Karachi on 1Qth day of December, 1985.
78. (Sd.)
79. Lieutenant Colonel President Special Milintary Court No,18 (Muhammad Shahbaz)
80. I concure I concure (Sd.)
81. Member Additional City Magistrate (Zaffar Ali Shar)
82. 19th December, 1985 (Sd.) Major Member, (Abdul Hameed Abbasi)
83. 19th December, 1985 ' This observation of the Court is not its decision but merely a comment on the irregularities committed during investigation.
84. ' The learned counsel for the petitioners contended that the rule of evidence applied by the Special Military Court was not according to law and therefore, the judgment and proceeding is not legal. In this regard reference has been made to an order, dated 8-12-1985 by which Martial Law Administrator Zone 'C' exercising power under sub-paragraph (f) of paragraph 5 of C.M.L.O. 4 as amended by C.M.L.O. 97 applied Article 11 of President's Order 4 of 1982 to the proceedings of this case with retrospective effect. The learned counsel has contended that such application was mala fide as it was made at the close of trial and further that Article 11 could not be applied in view of Article 165 of Qanun-e-Shahadat. The Qanun-e-Shahadat, Order 1984 was promulgated on 24-10- 1984. According to Article 1(2) it extends to whole of Pakistan and applies to all judicial proceedings in or before any Court including a Court martial, a tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator.
85. Although the term 'Court martial' has not been defined in the. Qanun-e-Shahadat Order, by its terminology it will include Martial Law Court as defined in the Pakistan Army Act which means Court Martial under, the said Act. The Special Military Court was established under Martial Law Order 4 which was empowered to exercise criminal jurisdiction in respect of offences under the laws mentioned therein. It was also empowered to record evidence and if necessary only extract of evidence could be recorded. Therefore the Special Military Court would fall under the definition of the word 'Court' as defined by Article 2(a) of the Qanun-e-Shahadat Order 1984. Article 165 of Qanun-e-Shahadat Order provides that the provisions of this Order shall have effect notwithstanding anything contained in any other law for the time being in force, The learned counsel have referred to Article 38 of Qanun-e-Shahadat Order which provides that no confession made to a police officer shall be proved as against a person accused of any offence. Therefore confession made before the Police Officer or Investigating Officer cannot be used as a proper and legal evidence against an accused. Article 11 of President's Order 4 of 1982 which has been made applicable to the proceedings of this Court provides special rules of evidence which reads as follows:
11. Special rules of evidence.--(1) The Tribunal or Court may receive in evidence, for such purposes as it may deem fit any statement recorded by a Magistrate made by any person who, at the time of the trial, is dead, or whose attendance cannot be procured without an amount of delay or expense which is unreasonable in the circumstances.
(2) The Tribunal or Court may receive in evidence.--
(i) any statement made by a person who is examined at the trial as a witness or as an accused person which may have been recorded by a Magistrate, or by an officer during the course of investigation of the case under trial or in the course of the investigation or any other criminal case;
(ii) any statement of a person recorded by an officer exercising the powers of a Magistrate of the first class or that person himself in his own handwriting or under his signatures; and
(iii) any tape-recorded speech or statement of a person, provided that the voice of the speaker or the maker of the statement has been identified by a competent witness.
(3) No objection to any document or property seized in the course of investigation being received in evidence shall be entertained on the ground that the same was not seized in accordance with the procedure, prescribed in law.'
86. ' The main thrust of attack has been on Article 11(2)(i) which makes admissible in evidence statement of accused which may have been recorded by Magistrate or by an Officer during the course of investigation during trial or in the course of investigation of any criminal case. Therefore in view of Article 11(2) on the basis of statement of accused made before a police officer during investigation he can be convicted. The provision of Article 11 to that extent is in conflict with Article 38 of Qanun-e-Shahadat Order. The Qanun-eShahadat Order being a subsequent legislation overrides all other laws contrary to it and applies even to the trial and proceeding before the Special Military Court. Article 11 (1)(2) of President's Order 4 of 1982 being in conflict with Article 38 of the Qanun-eShahadat Order cannot be applied to the proceeding of any Court including Special Military Court. The question therefore arises whether in such circumstances where admissible and inadmissible evidence have been taken into consideration for convicting an accused, will the order passed by the Court be illegal and without jurisdiction. The answer to this question lies in Article 162 of the Qanun-e-Shahadat Order which provides that improper admission and rejection of evidence shall not be a ground for a new trial or reversal of any decision if independent of the evidence objected to and admittedly there was sufficient evidence to justify the decision. The principle deduced from Article 162 is that where independent of the evidence objected to there is sufficient material to justify the decision mere admission of such evidence will not affect the validity of the decision. But where the conviction is based on evidence objected to and there is no other independent evidence to warrant such decision it can be set aside, reversed and retrial can also be ordered.
87. ' The learned counsel for the petitioners have contended that the order is without jurisdiction as the accused have been convicted of sentence which the Court had no jurisdiction to pass. From the record it is clear that first an interim charge sheet, dated 9-5-1985 was presented by Syed Mairaj Rasool, Assistant Director F.I.A. (E.E.Cell) Karachi before the Special Judge Customs/Taxation Karachi charging the accused of offence under section 156(1)(8) of Customs Act. Another charge sheet under Article 3/4 of the Prohibition (Enforcement of Hadd) Order of 1979 was submitted in the Court of Sessions Judge, Karachi. As the case was transferred to Special Military Court final charge sheet was submitted before the said Court in which charge under Article 3/4 of Prohibition (Enforcement of Hadd) Order was deleted. The charges framed against the accused have been re- produced in the earlier part of this judgment. It is clear from the charge sheet that certain provisions of law have been mentioned against such charges giving specific description. Sabur- ur-Rehman and Syed Shakil Ahmed have been charged o' illegally exporting 1450 Kgs. Of dangerous drug/charas to Star Board Company London and also smuggling narcotics/charas out of Pakistan. While other accused have been charged of abetment of this offence.
88. ' Mr. Hashmi has contended that in view of M.L.R. 36 G.M. Haleem and all other accused charged with abetment could not be convicted for more than 7 years. According to M.L.R. 36(1) and (2) any person guilty of offence of abetment of an offence punishable with death or imprisonment for life shall if no express provision is made under any Martial Law Regulation or Order or any other Law shall be liable to be punished with 7 years' rigorous imprisonment and fine and/or whipping. This provision will be applicable if there is no other provision under which punishment for such abetment has been provided. We have therefore to ascertain whether any other law or Martial Law Regulation or Order prescribes punishment for transporting charas/dangerous drug out of Pakistan. According to Mr. Hashmi the jurisdiction to try offences by the Special Military Court is specifeid in M.L.Os. 72 and 77 which do not include the offence of which Sabur-ur-Rehman and Shakil Ahmed have been charged and, therefore, the question of its abetment does not arise. This argument suffers from serious infirmities. Mr. Umer Qureshi has pointed out that in M.L.O. 77 offences under the Dangerous Drugs Act are triable by the Special Military Court. M.L.O. 72 conferred jurisdiction on Military Courts to exclusively try offences under the enactments mentioned in para. 2(1) which included Dangerous Drugs Act. M.L.O. 72 was cancelled and replaced by M.L.O.
77. In this Order the offences were mentioned by description and not with reference to the enactments. One of the offences triable by the Military Court was smuggling. It did not include any offence by description relating to Dangerous Drgus Act. However M.L.O. 87 amended M.L.O. 77 and Clause (ii) in para. 3 was added which empowered the Chief Martial Law Administrator to declare by notification in the official Gazette any offence triable by the Military Court exercising power under this provision. A Gazette Notification was issued by the Chief Martial Law Administrator on 6- 2-1984 reported in PLD 1984 Central Statutes 70 which reads as follows: "Gazette of Pakistan, Extraordinary, Part 1, 6th February, 1984.
89. ' No,57/115-A/M.L.1A./84.--In exercise of the powers conferred by clause (ii) of sub-paragraph (3) of paragraph 2 of Martial Law Order No,77, the Chief Martial Law Administrator is pleased to declare an offence punishable under section 148 of the Pakistan Penal Code (Act XLV of 1860), the Foreign Exchange Regulation Act, 1947 (XII of 1947) and the Dangerous Drugs Act, 1930 (II of 1930), to be, an offence which may be 'tried and punished by a Military Court.".
90. ' Therefore offences under the Dangerous Drugs Act, 1930 can be tried by the Military Court. Section 13 of the Dangerous Drugs " Act reads as follows: "Section 13. Punishment for contravention of section 7.--Whoever, in contravention of section 7, or any rule made under that section, or any condition of a licence granted thereunder-
(a) imports into Pakistan, or
(b) exports from Pakistan,
(c) tranships, any dangerous drug, shall be punished with imprisonment for life or with imprisonment which is not less than two years, and shall also be liable to fine"
91. ' The accused Nos.1 and 2 were charged of substantive' offence of exporting 1450 k.g. Of charas from Pakistan to London. The punishment for this offence is life imprisonment as amended by Ordinance XXXIII of 1983. Mr. Hashmi contended that in the charge .Sheet section 13 has not been mentioned. In the charge after describing the offence the provisions of law have also been mentioned in the margin which does not refer to section 13 but has mentioned section 10 of Dangerous Drugs Act. Mr. Umar Qureshi has contended that section 10 was wrongly mentioned instead of section 13. According to the learned counsel this omission will not vitiate the trial. The charges were described elaborately and by refering to section 10 no confusion could be created.
92. The learned counsel has referred to Shamimul Haq and 2 others v. Government of Pakistan and another PLD 1978 Kar. 800 where show-cause notice was issued under section 156(8) but the Deputy Collector imposed punishment under section 156(9). It was observed: "If the facts alleged and proved constitute violation of a provision of law other than that with which a person may be charged, penalty provided under the former can to our mind be legitimately imposed unless of course it is shown that some substantial prejudice has been caused thereby"
93. ' This principle equally applies to the present cases as the petitioners have not been able to show that by imposing punishment under section 13 how any prejudice has been caused to them. It has thus been established that the accused Nos. 1 and 2 were charged of offence and punished under section 13 of Dangerous Drugs Act which provides life imprisonment. Mr. Hashmi has argued that the petitioners were charged of offence of smuggling only, an offence under section 156(1)(8) of the Customs Act which provides a punishment of 10 years. This argument as well as other connected arguments were based on the erroneous impression that offences under the Dangerous Drugs Act could not be tried by the Special Military Court. This not being the actual legal position, his arguments have no force.
94. ' The next question arises what would be the punishment for an offence of abetment of an offence?
95. Section 21 of the Dangerous Drugs Act provides that the punishment for abetment of any offence under the Act is the same which is provided for the offence itself. This provision has been made in supersession of section 116 of Pakistan Penal Code which provides a different sentence for the offence of abetment of an offence. Therefore a person who is guilty of abetment of an offence under the Dangerous Drugs Act will be liable to punishment which is provided for the offence itself.
96. In this view of the matter the provisions of M.L.R 36 which provided a lesser punishment for the offence of abetment cannot be applied because it is applicable if there is no other law applicable for offence of abetment of an offence.
97. ' Mr. Mujib Pirzada, the learned counsel for the petitioners contended that the trial and conviction is in violation of the Fundamental Rights of the accused. Mr. Pirzada further contended that his argument is in addition to the contention that Eighth Amendment is not legal and valid which he has reserved for raising in any other appropriate proceeding. He further contended that M.L.O. 107 is illegal and void as it was not incidental to the withdrawal of Martial Law and thus violates Article 8 and Article 25. The sentence was passed -before the lifting of Martial Law. Article 270-A has afforded protection to acts done, orders made or proceedings taken between 5-7-1977 and 30-12- 1985 by any authority under any Martial Law Regulations or Martial Law Orders. In view of Ghulam Mustafa Khar's case PLD 1989 SC 26 such orders and proceedings can be challenged provided the Tribunal is coram non judice or it suffers from, want of jurisdiction or mala fides. Therefore such orders can be challenged only on any one of these grounds specified in the aforestated judgment of the Supreme Court. Further the Fundamental Rights were restored after the sentence had been passed and it was a past and closed transaction. Therefore this contention does not seem to be correct. Reference can be made to Syed Abul Ala Maudoodi's case PLD 1964 SC 673 (785).
98. ' Mr. Rashid Akhund, the learned counsel for the petitioners contended that as no proper opportunity to defend the case was provided, the trial and sentence were illegal. On 10th December, 1985 the prosecution closed its side. The defence counsel were asked to submit a list of witnesses but they expressed their inability to do so. The counsel for Sabur-ur-Rehman did submit a list of witnesses two of which were in Dubai and six in London. The Court ordered all the accused to submit list of witnesses and bring the witnesses on 11-12-1985 failing which the statement of the accused would be recorded. It seems that statement of two defence witnesses and accused was recorded. The trial commenced on 3-11-1985 and the prosecution closed its . Side on 10-12-1988.
99. The defence had sufficient time to keep its witnesses ready for examination. In the facts and circumstances of the case proper opportunity had been given to the accused to defend themselves.
100. ' Mr. Pirzada contended that the impugned order suffers from male fides as conviction was made due to outside influence. To substantiate his contention the learned counsel referred to the observation of the Military Court reproduced earlier. As observed this was comment upon the irregularities in the investigation and at no point of time the Special Military Court had expressed its opinion in favour of acquittal. This observation does not prove any outside influence on the Military Court.
101. ' The petitions are therefore, dismissed.