IMAM ALI KAZI, The present petition under Article 199 of the Constitution arises out of the following facts:--
2. The petitioner was involved in a case registered under Section 156 (1) (8) of the Customs Act, 1969 under F.I.R. No. 323/82 registered by F.I.A. Passport Cell Karachi on 18th March, 1982. The petitioner was one of the seven accused persons named in that F.I.R. It appears that this case was referred to Martial Law Authority for transferring it to a Military Court. The case was transferred for trial to a Military Court. The petitioner was not arrested and therefore could not be produced before the Military Court for trial. The Deputy Martial Law Administrator, Karachi, then published a notification in Sindh Government Gazette, extraordinary issue of 15th July, 1982 requiring the petitioner and three others to appear before the Summary Military Court, M.P.A.'s Hostel, Karachi within 15 days after publication of the notice in the Gazette and it was also noted that on their failure to be present as directed they will be tried in absentia for contravention of Martial Law Order No. 6 as punishable under Martial Law Regulation No. 31. The petitioner did not appear in pursuance of that notice and was tried for non-compliance of the directions in absentia.
3. The Commanding Officer of the Summary Military Court No. VII held the trial of the petitioner in absentia, convicted him to undergo rigorous imprisonment for one year and imposed a fine of Rs.5,00,000 (Rupees Five lacs only) and in default of the payment of fine, the fine was recoverable as arrears of land revenue. The conviction and the sentence were approved by the Deputy Martial Law Administrator Zone "C".
4. After a period of 5 years the petitioner was arrested on 22nd June, 1987 by some officer of the Federal Investigating Agency when he was informed that he was being arrested as he was convicted by Summary Military Court No. VII, Karachi for undergoing that sentence. The petitioner filed his representation to the Governor Sindh without any relief. He has now filed this petition questioning the validity of sentence passed by the said Military Court.
5. Mr. Khalid M. Ishaque, the learned Advocate for the petitioner contended that the petitioner is a permanent resident of a house bearing No. B-238, Block "L", North Nazimabad, Karachi whereas the Notification published in the Sindh Government Gazette requiring him to be' present before the Summary Military Court and the summons issued for the purpose by the Court itself shows his residential address to be House No. B-238/4, Nazimabad, Karachi. Due to misdescription of the address of the petitioner in the Gazette notification and the summons the petitioner could not have even thought that he was the required person. Under such circumstances the petitioner committed no offence and his conviction is patently without jurisdiction. As the decision is without jurisdiction it will be not covered by the provisions of Article 270-A of the Constitution. To support his such arguments he has pointed out the mis-description in the address of the petitioner mentioned in the Gazette notification Annexure 'B-3' of the petition and a summary of evidence recorded by the Summary Military Court also shows that officers required to serve the summons went in presence of witnesses to the address mentioned therein. They did not find the petitioner at that address they therefore pasted the process at the door of that house.
6. Mr. Zaheeruddin Khan Advocate appearing for the Government of Pakistan and Mr. K.M. Nadeem for Government4 of Sindh and their officers impleaded as respondents in the petition stated that as correct name was mentioned in the Gazette Notification and the notice issued for service against the petitioner was in sufficient compliance of Martial Law Order of No. 6 and Martial Law Regulation No. 31 no exception can be taken merely on the ground of incorrect address of the petitioner mentioned therein.
The Martial Law Order No. 6 is reproduced herein below:-- "1. Any Martial Law Authority, may by notification published in the official Gazette and in such manner as may be considered suitable to make it widely known:-
(a) Declare any person, who, being required by such authority for the purpose of any investigation, inquiry or other proceedings connected with an offence under Martial Law Regulations to report to such authority at the time and place required by such authority, fails to so report, or with the intention of avoiding to so report, goes and stays abroad, to be an absconder, and
(b) Direct such person to appear before such authority within such period as may be specified in the notification or, in the case of a person staying abroad on the date of publication of such Notification within a reasonable period from such date.
2. Whoever, being directed by a notification under sub- paragraph (a) to appear before any Martial Law Authority fails to so appear without showing reasonable cause to the satisfaction of such authority shall be punished.
3. A person may be tried in absentia for contravention of this Martial Law Order."
The relevant portion of Martial Law Regulation No. 31 which prescribes procedure and provides punishment for violation of provisions of Martial Law Order No. 6 is reproduced herein as under:-- "1. This Martial Law Regulation shall come into force at once and shall be deemed to have taken effect on the fifth day of July, 1977.
2. A Martial Law Authority may, by notification published in the official Gazette and in such other manner as may be considered suitable to make it widely known-
(1) declare any person who being required by such authority of an Inquiry Officer or a Commission of Inquiry, under the provisions of any Martial Law Order or Regulation, for the purpose of any investigation, inquiry or any other proceedings, fails to so report at the required time and place or with the intention of avoiding to so report, goes and stays abroad or hides himself at any place within Pakistan to be an absconder:
(2) direct the said person to appear before such authority, Inquiry Officer or Commission of Inquiry within such period as may be specified in the notification or in the case of person staying abroad on the date of publication of such notification within a reasonable period from such date.
3. Whoever, being directed by a notification under paragraph 2 to appear before a Martial Law Authority, Inquiry Officer, or a Commission of Inquiry fails to so appear without showing reasonable cause to the satisfaction of such authority, Inquiry Officer or a Commission of Inquiry, shall be punished with rigorous imprisonment for a term which may extend to fourteen years and shall also be liable to fine and confiscation of such of his immovable and movable property as the Court may decide.
4. A person may be tried in absentia for an offence under this Martial Law Regulation."
7. The Martial Law Authorities could resort to action under Martial Law Order 6 and Martial Law Regulation 31 in case of persons accused of offences under Martial Law who absconded to avoid their such trial. The plain reading of Martial Law Order 6 and Martial Law Regulation 31 would indicate that where persons required for the enquiry, investigation or trial under Martial Law either avoided service or absconded could be served by way of publication in the Official Gazette and tried in absentia. It is only in cases where service by ordinary mode fails that resort can be had to substituted service such a cause is not unknown to ordinary Court of law. From the evidence brought on record of this petition effort was also made to serve the petitioner by the ordinary mode of service. The address given in both the summons and the Gazette notification was admittedly a wrong address. A counter-affidavit has been filed by one Masood Ali Inspector of F.I.A, at Karachi Airport who has stated that he had received the summons against the petitioner in the case and he could not locate the petitioner at the address given in the summons. He, therefore, made an enquiry from other police officers who provided him a guide to the house of petitioner in North Nazimabad. There he met a person claiming to be the brother of the petitioner but he refused to accept the summons and then he pasted the summons on the main gate of that house. We are not inclined to accept this changed stand taken and such a stand taken by the respondents at such a late stage particularly when the evidence led before the Military Summary Court as stated above is to the contrary. In a densely populated city of the dimensions of Karachi more than one person can always have common names. In such a situation it will be the vocation and address of a person that can establish his correct identity. In the circumstances of this case we are inclined to hold that the notification issued under Martial Law Order No. 6 and Martial Law Regulation No. 31 did not fully describe the petitioner. It cannot therefore be presumed that the petitioner stood duly served so as to attract penalty in consequence of his non-appearance before the Martial Law Authority.
8. For the foregoing reasons the conviction of the petitioner can only be declared to have been passed without any lawful authority. We had by our short order passed on 25th April, 1989 quashed the sentence passed against the petitioner by the Summary Military Court No. VII, Karachi with a direction that such a decision shall not affect the case against petitioner investigated under F.I.R.
194 of 1982 before the Special Judge (Customs, Excise and Taxation), Karachi.
9. The above are the reasons for passing of that judgment.