' QAZI MUHAMMAD JAMIL, J.--The petitioners in this Constitutional petition assail the findings of the Special Military Court No,88, in convicting and sentencing petitioner Mst. Sardari Begum under section 302/109, P.P.C. To imprisonment for life and fine and other petitioners to death with fine under section 302/148/149, P.P.C. The Military Court also came to a finding that two of the petitioners were guilty of committing rape as well.
2. On 24th September, 1985, one Subcdar Dost Muhammad of Dharam Pani, Police Station, Havelian, District Abbottahad, reported to the police that in the early hours of 24-9-1985, his daughter-in-law alongwith some of her children and a niece was found dead in their beds. Two of the girls were found suffering from grievous injuries. The death and injuries were caused by blunt weapons. He suspected no one and charged none. The incident created sensation and N.-W.F.P. Police found at their hands a case of so-called "Hathora Group" blown out of proportion in their Province. Their anxiety to trace the culprits is apparent from the reading of the record. However, the main obstacle in their way was that no one in the neighbourhood had anything to say about the occurrence. The maker of the F.I.R. Was later on so convinced about the false involvement of the present petitioners that he was prevented from appearing as a witness and did not appear in the witness-box. A man of straw who had his own problems with the police being of questionable character and a street vendor was ultimately procured and made an approver. He too admits that he remained in police custody for a considerable period of time. The other accused involved by him were arrested, kept in custody without obtaining an order of remand, tortured and their so-called confessions were allegedly recorded. This was the state of evidence when the case was placed before the Special Military Court. The learned counsel for the petitioners states that the prosecution case could not have stood the scrutiny of an ordinary criminal trial. A charge-sheet was prepared on the 18th of November, 1985 and the D.M.LA. Ordered that the case be tried by the Special Military Court No,88, C.A.D. Havelian. The said Court was presided over by an Army Lt.-Col. And its other two members were an Army Major and an Extra Assistant Commissioner. No judicial officer was present. An application for making the Sessions Judge as a member in accordance with the Manual of Pakistan Military Laws was turned down. The trial was conducted, despite defence counsel's objection at odd hours within the protected area of the Ordinance Factory/Depot. On 1st of December, 1985, when the defence witnesses were to be produced including those abandoned by the prosecution they were obstructed by the police to do so. The defence counsel moved an application complaining about the aforesaid obstruction but finding no response they walked out of the Court. In their absence two of the defence witnesses, namely, Dost Muhammad and Sarwar were called before the Court. It was found that they were not allowed to enter the Court premises by the guards. Later on a counsel was provided to the accused by the District Magistrate who prepared their defence in writing. The accused did not have a counsel of their choice at this stage.
The proceedings were completed in haste after the defence counsel left the scene and within three days i.e, 5th of December, 1985 sentences were handed over by the Special Military Court. They were duly confirmed by the higher martial law authorities. There was no appeal as the convicts tried by a Military Court even if condemned to death, had no right of appeal.
3. The learned counsel for the petitioners have challenged the trial of the petitioners by the Special Military Court and its verdict mainly on the grounds that arbitrary selection of the petitioners for trial by Special Military Court was not justified while similar offences as the one allegedly committed by the petitioners were triable and were being tried by ordinary Courts; that prosecuting the petitioners was mala fide both in law and in fact; that there was no evidence before the Court to proceed against the petitioners and ultimately convict them and, as such, the very jurisdiction of the said Court, if at all it had any, suffers from serious defects; that the decision to arraign the petitioners as accused before a Military Court had no nexus with the limited objectives of martial law. They have also questioned the trial of the petitioners by Military Court and its verdict thereto on the touchstone of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. They argued that this Court has the jurisdiction to entertain their Constitutional petition for the purpose of determining the afore-said challenge made to the convictions and sentences passed by the Special Military Court in view of the judgment of the Supreme Court in Begum Nusrat Bhutto's case (PLD 1977 SC 657) notwithstanding Article 270-A introduced in the Constitution. They also relied on Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) in this respect.
4. Muhammad Aslam Khan Tanoli, the learned Assistant Advocate-General, appearing for the respondents, inter alia, objected to our jurisdiction to interfere with the findings of the Military Court.
He referred to Article 270-A of the Constitution which according to him has shut our doors to the petitioners. He was, however, aware of the judgment of the Supreme Court in Federation of Pakistan v. Ghulam Mustafa Khan cited above. He was also conscious of the interpretation placed on the afore-said Article of the Constitution by the Supreme Court. He accordingly conceded that we can review the proceedings and the decision of the Military Court "which suffered from defect of jurisdiction or coram non judice or were mala fide".
5. We propose to dwell on this question of our jurisdiction as well. Martial Law is a term borrowed from the British experience and its exposition by the British. Jurists and their Courts of law. While considering this term, strictly within the narrow juristic compass without its political ramifications, martial law has been broadly divided into two forms; the set of commands issued by a commander of occupying forces in a foreign land and "a peculiar system of legal relation which arises between the military and the civilian subjects of the King in time of insurrection or civil war".
We are concerned with the latter form of martial law. Since the passage of Bill of Rights in 1988 England claims to have no martial law within the country itself but its imposition in Ireland and South Africa gave rise to certain difficult situations which the superior Courts tried to meet, especially when the Military Authorities stepped outside the normal legal standards and violated the ordinary rights of the citizens in their anxiety to quell insurrection or rebellion.
6. The Superior British Judiciary, therefore, left certain landmarks in this field. In R.(Grade) v.
Strikland (1921) 2 IR at page 329 Malony, C.J. Wrote, "We desire to state, in the clearest possible language that this Court has the powers and the duty to decide whether a state of war exists which justifies the application of martial law". As for the actions taken during martial law, when it was not possible for the Court to sit, it was universally recognised that affected subjects could approach a Court after the cessation of hostility. This in turn necessitated the passage of Indemnity Acts by the British Parliament invariably after every emergency to protect those acts of the armed forces which went outside the scope of their authority or the ordinary legal norms. But in this field too the well- known case of Wright v. Fitzgerald (1798) 27 St, Tr. 765, is cited as an authority for the proposition that even an "act of Indemnity is no defence when the conduct sought to be justified was not bona fide directed to the suppression of the insurrection".
7. British lawyers today have come to a stage when they claim that martial law is no law at all. They do not recognize. Military Courts established during the martial law dispensing justice amongst the civilians or between citizens and the State. The House of Lords in Clifford and O'Sullivan (1921) 2 AC 570 went so far as to call the Military Courts established during the emergency as no Court even as compared to a Court martial constituted under the regular Military Law. In the words of Viscount Cave, "The so-called 'Military Court', whose proceedings were in question before Powell, J., was not and did not claim to be a Court or judicial tribunal in any legal sense of those terms. It was not a Court Martial, that is to say, a tribunal regularly constituted under Military law, but a body of Military officers entrusted by the Commanding Officer with the duty of inquiring into certain alleged breaches of his commands contained in the proclamation, and of advising him as to the manner in which he should deal with the offences; and its `sentences', if confirmed, will derive their force not from the decision of the Military Court, but from the authority of the officer commanding His Majesty's forces in the field. Its true position was described by Lord Halsbury in Tilonko v. Attorney- General of Natal, (1907) AC 93, 94 in the following terms; 'The right to administer force against force in actual war does not depend upon the proclamation of martial law at all. It depends upon the question whether there is war or not. If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorise what are called "Courts" to administer punishments, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved. But to attempt to make these proceedings of so-called "Courts martial", administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of justice is quite illusory'.
8. The British judiciary, as such, refused to recognise the concept of martial law as a juristic concept but accepted the same as a state of affairs partially recognised by the Royal prerogative arising from an abnormal situation. At the same time, the Judges kept a watch on the excesses of martial law authorities. As stated above, they even penetrated through the Indemnity Act by declaring that the conduct sought to be justified was not bona fide directed to suppression of insurrection. They refused to be browbeaten by the proclamation of martial law as Maloni, C.J. In Wright v. Fitzgerald, cited above, spurned the suggestion that the Courts were sitting by leave of the military authority.
He declared that he "sat by virtue of king's command which no General could dispute".
9. The difference in jurisprudential norms of Pakistan and Britain is that Judges in Pakistan do nor sit by virtue of King's command but by virtue of a written Constitution. In Britain the actions of a military commander during martial law may be controlled by the concept of meeting force with force as a matter of necessity or such Statutes as Restoration of Order in Ireland Act but no place has been given to the concept of martial law, as such, in the Constitution of Pakistan. When General Zia proclaimed martial law in Pakistan, the Supreme Court gave its raison d'etre strictly within the narrow confines of its objectives, namely, the restoration of a normal state of affairs, conducive for a Constitutional Government. The case reported as Begum Nusrat Bhutto v. The Chief of the Army Staff etc. PLD 1977 SC 657 is no ordinary case. The Supreme Court did not recognise extraordinary measures taken by the Chief of the Army Staff as to be constitutional but applying the views of the great British Jurist, Professor S.A. De Smith in his book, Constitutional and Administrative Law allowed a lease of life to the said Chief of the Army Staff on the ground of necessity as deviation from the Constitutional norms. The deviation was not left unbriddled. A defined path was chalked out with defined limitations by the Supreme Court for him to follow. He was told in so many words that in trichotomy of the organs of the State, only two, namely, legislature and executive were in crisis but the judiciary was perfectly intact. The Chief of the Army Staff's earlier statement also laid down a limited basis for his proclamation of martial law. The judgment in Nusrat Bhutto's case cannot be taken out of sight while considering the path of deviation adopted by the Chief of the Army Staff. In this context, Article 270-A introduced by the 8th Amendment Act of 1985, is not to be read as to exclude the aforesaid judgment of the Supreme Court which if so excluded shall completely destroy the edifice-of the Constitutional deviation.
There are no other basis for governing the country by the Chief of Army Staff.
10. In Britain there is no fundamental law and the ordinary law of the land is the Constitution of the country. Hence an Indemnity Act may cover those excesses of the Military authorities which were absolutely necessary to meet an emergency. But in Pakistan an Act of Parliament cannot cover the violation of the Constitution itself. It is precisely for this reason that an amendment in the Constitution has been introduced broadly analogous to that of an Indemnity Act. Based on the abovequoted judgments of the British Courts, only those excesses or violations of the Constitutional or legal norms, shall stand condoned which had nexus with the objectives of martial law and were bona fide in achieving those objectives. Such objectives have been judicially defined and recognised by the Supreme Court of Pakistan in Begurn Nusrat Bhutto's case.
11. The case in hand, howsoever, sensational it may be, is an ordinary criminal case. The offences allegedly committed by the petitioners arc defined in the ordinary Statutes. Our ordinary Courts were functioning without any let or hindrance during the period of martial law. Their doors were open and they were dispensing justice in similar cases as the one in hand. The investigating Agency and the military authorities decided to place this case before a military Court but gave no reason for doing so. C.M.L.A. Order 4 as amended from time to time gave no criterion for the initial institution of a criminal case before a military Court. It is important to note that for transfer of a case from an ordinary Court to the military Court certain standards were laid down in the Order itself. In the circumstances, therefore, we have to fall back on the nature of the case picked up to be tried by a military Court, in the light of the general principles discussed above. In each case we would see the reason for selection of case for such a trial and if no reason was given we shall gather the same from the facts of the case to see its bona fides to meet the objectives of the Constitutional deviation. Such exercise is also in consonance with the decision given by the Supreme Court in Federation of Pakistan v. Ghulam. Mustafa Khar. Justice Saad Saood Jan, J. While writing judgment in the said case stated at page 54 the report:-- "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 take 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.
For this purpose, it is unnecessary to draw a distinction between malice in fact and malice in law."
12. Intrinsically the grievance with .Regard to the trial by the military Court arises from the denial of benefits which an accused receives in the ordinary Court of law. Special Military Court may record extensively the evidence adduced before it but is not supposed to write judgment in support of its findings. The administrators who were responsible for executing the martial law turned into judges to try an offender. Above all there is no right of appeal even for a person who is condemned to death.
13. In the case in hand, we have gone through the record and we find that no reasons were recorded for the trial of the petitioners by a Military Court. The perusal of the material on the record reveals that the petitioners were not mentioned in the but they were later 'on arrested and tortured.
Their so-called confessions were retracted by them. There is a. Statement of the so-called approver whose own credentials are highly doubtful. There is a graphic but tragic description of extreme torture practised on the petitioners in their statements before the Court. Some of them showed their scars to the Court which resulted from the said torture. No parade was conducted to identify the unnamed persons mentioned by some of the P.Ws. No other circumstantial evidence incriminating the petitioners is available on the record. Even the maker of the F.I.R. Was abandoned by the prosecution and the effort to bring him to the Court by the defence as a Court witness was admittedly frustrated by the prosecution. The motive for involving the aunt for the murder of her niece was debunked by the prosecution witnesses themselves. The anxiety of both the administration and the police to lay the blame on some one's door for the alleged occurrence is patently visible from the record of the case. Malik Aman Khan, who was the then S.H.O. Police Station, Havelian and who recorded the F.I.R. And initiated the investigation in the case admitted his malice against one of the main accused Romail Patwari who was allegedly hired for the murder of Mst. Chand Bibi. He stated in his cross-examination that the father of the said accused had on one occasion brought a case against him in order to pressurise him in his investigation of an abduction case. The defence counsel at one stage boycotted the trial as they were obstructed in producing the defence witnesses before the Court and thereafter within a short period of three days, the sentences awarded to the petitioners were announced. As such, the petitioners were deprived of their defence by the counsel of their choice. The Court comprised of military personnel and a civilian administrator. The prayer for appointing at least one judicial officer on the Court was declined. There is substance in the arguments of the learned counsel for the petitioners when they say that as the Investigating Agency did not expect the ordinary Court to convict and sentence the petitioners on the basis of available evidence, they preferred a command performance by the Military Court. Needless to add that even those who were condemned to death were denied the right of appeal. Furthermore, the excess of jurisdiction in the circumstances of this case by the Military Court is not justified as the same had no nexus with the limited objectives of martial law.
The trial of the petitioners by the Military Court, in the circumstances of the case, was not bona fide directed to achieve the said limited objectives of the martial law or Constitutional deviation recognised by the Supreme Court.
14. We, therefore, accept this petition and declare the convictions and sentences passed by the Special Military Court, respondent No,1, against the petitioners as without lawful authority and, therefore, of no legal effect. We have been informed that Mst. Sardari Begum who was given life imprisonment has since been released as an act of clemency. We have also been told that rest of the petitioners who were condemned to death have already been taken out of the death cells and their sentences commuted to life imprisonment by the same act of clemency. As the said petitioners are still undergoing their terms of imprisonment and their custody as such having become unlawful owing to our aforesaid declaration, they shall be released forthwith if not required in any other case/cause.
' There shall be no order as to costs.