MAMOON KAZI, J.--- These two petitions were allowed by a short order dated 14-1-1992, and the conviction awarded to the petitioners by the Military Court No.33, Sukkur was quashed for reasons to be separately recorded. We now proceed to record the reasons.
2. The facts of the case are that the two petitioners, alongwith six others, were cited as accused in a case F.I.R. No.98/85 dated 23-5-1985 lodged at Police Station `C' Section Sukkur, under section 302/307/34, P.P.C., and sections 3 and 6 of the Explosives Act. According to the F.I.R., as a result of an explosive thrown inside Masjid Manzil Gah, in Sukkur, two persons were killed and many others sustained injuries. The persons who had actually thrown the explosive were not seen by any witness, however, according to the complainant, Abdul Ahad, who had lodged the F.I.R. With the police, two persons namely, Nazir Ahmed Dakhan and Abdul Subhan Bijarani had seen the present petitioners alongwith three or four persons who had not been recognised by them, running away from the place of the incident.
3. The petitioners were, thereafter, arrested and their trial with six other co-accused proceeded before the Special Military Court till 8-12-1985, but the result was not announced by the said Court.
However, on the 3rd March, 1986, the petitioners were informed at Sukkur Jail after receipt of a warrant issued by Martial Law Administrator Zone `C' dated 3-3-1986, that the petitioners had been found guilty and their sentences of death had also been confirmed. Similar sentences awarded to the other co-accused, however, were not confirmed, although they had been found guilty of the said charges by the Special Military Court and each one of them had been sentenced to death and also to pay a fine of Rs.50,000 as compensation to the heirs of the deceased. Thereafter, on 29-3- 1986, the petitioners sent a petition under M.L.O. 107(7) to the President of Pakistan which was rejected, but subsequently by a general announcement made by the Government, death sentences awarded by the Military Courts were converted into sentences for imprisonment for life.
The petitioners, thereafter, continued to serve out their respective sentences and it was under such circumstances, that the present petitions were filed.
4. It may be pointed out that the question as to the jurisdiction of the High Courts to review actions taken by the Martial Law Authorities including convictions awarded by the Military Courts came up for consideration before the Supreme Court, in the case of Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26. While extensively examining the import of Article 270-A of the Constitution the Supreme Court 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 take away the jurisdiction of the High Court 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."
5. The main contention of Mr. Ali Ahmed Tariq, learned counsel for the petitioners, before us is, that, not only that there was no sufficient evidence before the Special Military Court to warrant conviction of the petitioners on the said charges, but the action of the authorities confirming the death sentence of the petitioners while declining to confirm the death sentence of the co-accused including that of the main accused in the case, was clearly tainted with mala fides and thus was without jurisdiction. To support his contention, the learned counsel has also taken us through the record of the case, which was earlier called for in the Court. The evidence of P.Ws. Abdul Subhan Bijarani and Nazir Ahmed Dakhan, who were the only eye-witnesses in the case, shows that although the petitioners were armed with firearms but they were standing behind the main accused, namely, Muhammad Ayub and Muzaffar Ahmed, who, according to the said witnesses had hurled an explosive on the congregation inside the mosque. Admittedly, no overt act was assigned by any of the said witnesses to the present petitioners, who were allegedly only standing alongwith the other co-accused behind the main accused. It, therefore, shows that Mohammad Ayub and Muzaffar Ahmed were the main accused in the case whereas, the present petitioners at the most were only camp followers. It, however, appears to be strange that the sentences awarded to the co---accused including the said main accused were not confirmed while the sentence awarded to the petitioners, who as just pointed out, were assigned a comparatively minor role by the said eye-witnesses, were confirmed. No reasonable person could have acted in the manner as was done by the authorities in the present case. In fact, according to the allegations embodied in the F.I.R., lodged in the case by one Abdul Ahad, the petitioners had only been seen running away from the scene of the occurrence after the explosion inside the mosque.
6. Mr. Ali Ahmed Tariq, has also placed reliance upon a judgment of M. Dilawar Mahmood, J., a learned Judge of the Lahore High Court given in Writ Petition No.5780 of 1978 decided on 5-6-1979, wherein the conviction awarded by the Military Court to the accused was set aside as the main accused in the same case who had been tried by an ordinary Criminal Court were acquitted under similar circumstances. No doubt, one of the questions raised in the said case also was that the trial of the petitioner had been vitiated on account of non-compliance with rules 102 and 113 of Pakistan Army Act Rules, 1954, which had resulted into prejudice to the petitioners, but, according to us, the case decided by the learned Judge of the Lahore High Court in no way stands on a better footing than the case of the present petitioners. We are also not oblivious of the fact that generally in the exercise of constitutional jurisdiction the High Court is not called upon to enter into re-appraisal of evidence in a case, but the Court is competent to examine evidence to find out whether the A impugned order is based on no evidence or on a complete misreading of evidence or the action against the petitioners is, discriminatory or mala fide. It may also be pointed out that even Mr. AA.
Mohammadally, learned Additional Advocate-General and Mr. Umer Qureshi, learned counsel appearing on behalf of the Federation of Pakistan have not supported the conviction of the petitioners in the present case.
7. For the aforesaid reason, the two petitions were granted by us by a short order and the conviction and the sentence awarded to the petitioners were set aside.
H.B.T./N-426/K