' The present judgment shall dispose of Writ Petitions Nos.964, 1859 and 2374 all of 1974, as they arise out of similar point of law.
2. The petitioner in Writ Petition No,964 of 1974 has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to impugn his conviction and sentence under the provisions of Martial Law Regulation No,40 by the Special Military Court, Lahore, whereby he was sentenced in absentia to 14 years' rigorous imprisonment and 15 lashes. The brief facts of his case are that a case had been registered vide F.I.R. No,220 dated 11-6-1971 at Police Station North Cantonment, Lahore, to the effect that some persons were engaged in the trade of smuggling gold and as the petitioner herein was not traceable, therefore, a notification had been issued on 12-10-1971 requiring the petitioner to surrender himself to the nearest police station or the Martial Law Headquarter by 23-10-1971 and that his failure to do so shall render him liable to charges under Martial Law Regulation No,40 and that he shall be tried in absentia for the contravention of the said Regulation.
The petitioner's case is that he was carrying on business of cotton with his office at Room No,14-15, Cotton Exchange Building, Karachi, and that he was an Income-tax payer, and that as the petitioner was never declared an absconder as required by Martial Law Regulation No,40, the same being the condition precedent to action thereunder, and as the petitioner had not been afforded an opportunity to show reasonable cause to the satisfaction of Martial Law Authorities for his non- appearance, therefore, his conviction and sentence passed against him as a result thereof, is nullity in law, void and without lawful authority.
3. The brief facts of Writ Petition No,1859 of 1974 are that the petitioner therein was also convicted and sentenced in absentia to 14 years' rigorous imprisonment and 15 lashes under the Martial Law Regulation No,40, for his failure to put in appearance in pursuance to the notification dated 18-10- 1971. The petitioner was required in a case registered on 11-6-1971,.Wherein it was alleged that certain persons were engaged in the trade of smuggling gold. The case of the petitioner in the present writ petition is the same as stated above i,e. As the petitioner was never declared an absconder as required by Martial Law Regulation No,40 the same being the condition precedent to action thereunder, and as the petitioner had not been afforded an opportunity to show reasonable cause to the satisfaction of Martial Law Authorities for his non-appearance, therefore, his conviction and sentence passed against him as a result thereof, is nullity in law, void and without, lawful authority.
4. The petitioner in Writ Petition No,2374 of 1974 has also challenged his conviction in absentia under the provisions of Martial Law Regulation No,40 for his failure to surrender himself as directed vide notification dated 10-11-1970 in a case registered under the provisions of Martial Law Regulations Nos.23 and 24. It has further been stated by the petitioner that initially a case vide F.I.R.
No,267/70 under section 5/23 of the Foreign Exchange Regulation Act had been registered against the petitioner and three other persons, but that the same had been filed by the State Bank of Pakistan as it was decided not to submit the same for trial. It has been contended on behalf of the petitioner that the Martial Law Regulation No,23 deals with the punishment of smugglers, whereas Martial Law Regulation No,24 deals with the punishment for taking of Pakistan currency outside the Pakistan, and that as the F.I.R. No,267/70 stated above, was not in respect of the said allegations, therefore, the application of the provisions of said two Martial Law Regulations against the petitioner is an act totally mala fide. It was further submitted that, in any case, as the petitioner was never declared an absconder as required by Martial Law Regulation No,40, the same being the condition precedent to action thereunder, and as the petitioner had not been afforded an opportunity to show reasonable cause to the satisfaction of Martial Law Authorities for his non- appearance, therefore, his conviction and sentence passed against him as a result thereof, is nullity in law, void and without lawful authority.
5. The learned counsel for the petitioners, therefore, argued that the convictions and sentences awarded to the petitioners as stated above are liable to be set aside as the impugned orders are coram non judice. Further submitted that the first requisite under the Martial Law Regulation No,40 is for the person called upon to be declared an absconder for his failure to surrender himself to the Authorities as directed in the proclamation issued thereunder. The Martial Law Regulation No,40 is reproduced hereunder for reference:-- "Martial Law Regulation No,40. Punishment for non-appearance before M.L. Authorities and provision for declaring absconder.
(23rd April 1%9)
(1)(a) Any 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:-
(i) declare any person, who, being required by such authority for the purpose of any investigation, inquiry or other proceeding 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
(ii) 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.
(b) Whoever, being directed by a notification under sub-paragraph (i) to appear before any Martial Law Authority, fails to so appear without showing reasonable cause to the satisfaction of such authority, shall be punished. Maximum punishment fourteen years' rigorous imprisonment.
(c) A person may be tried in absentia for an offence under this Regulation.
(2) Notwithstanding anything contained in any other law for the time being in force the transfer in any manner of any property belonging to the person declared to be absconder under paragraph 1, or the creation of any right or interest in such property on or after the publication of the notification under the said paragraph except with the permission of, and in the manner prescribed by the Martial Law Authority concerned, shall be void."
' As a perusal of the above Martial Law Regulation No,40 clearly establishes, in accordance with sub-paragraph (i) of paragraph (1)(a), it is mandatory for the Martial Law Authority concerned to declare the person who fails to report as directed to be an absconder and the subsequent sub- paragraphs shall come into operation and can be invoked to punish such a person only after such a person had been declared absconder. In this respect, it needs to be pointed out that according to paragraph (1)(b) of the said Regulation, whoever fails to so appear, without showing reasonable cause to the satisfaction of such authority, shall be punished upto a maximum punishment of fourteen years' rigorous punishment; and that paragraph 2 of the said Regulation, the prohibition in respect of the transfer in any manner of any property belonging to such person has been specifically stated to be a person declared to be an absconder under paragraph (1). Therefore, the contention of the learned counsel for the petitioners is fully valid; that the sub-paragraph (b) of paragraph (1) can be invoked to punish a person for his failure to put in appearance without showing reasonable cause to the satisfaction of such authority only if, firstly, such a person has been declared A absconder, and secondly, if he has been afforded an opportunity to show reasonable cause for his failure to appear before such authority as required under the said Martial Law Regulation No:40. In the instant case, the relevant notifications are as follows:-- ' The Punjab Gazette (Extraordinary) October 18, 1971. H.Q. Sub-Martial Law Administrator, Sector 3 Zone 'C'
' NOTIFICATION ' 12-10-1971 ' No,502/MLR/AG/5-C/6305--- Whereas Mr. Abid, son of Muhammad Amin, resident of Pakki Thatti, Multan Road, Lahore, is required by HQ Sub-Martial Law, Sector 3, Lahore for the purpose of investigation of the case F.I.R. No,220, dated 11th June, 1971 under MLR 23/16(a), P.S. North Cantt., Lahore.
' And whereas, the said Mr. Abid, son of Muhammad Amin is not traceable.
' Now, therefore, in exercise of the powers conferred on me by MLR 40, I, Major-General MA. Majid P.S.C. SMLA Sector 3 Zone 'C' hereby order the said Mr. Abid son of Muhammad Amin to report to HWQ. Martial Law, Sector 3 or surrender himself to the nearest Police Station or MLHQ by 23rd October 1971. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be tried in absentia for the contravention of the said Regulation.
' MA. Majid Major-General ' People's House, ' Sub-Martial Law Administrator, ' Lahore. ' Sector 3.
' The 9 October, 1971 ' Sub-Martial Law Administrator Sector 3 ' NOTIFICATION ' The 5th November, 1970 ' No,.502/MLA/AG/5C--- Whereas Kh. Abdul Haleem son of Kh. Abdul Rahim resident of 29-D Gulberg, Lahore is required by H.Q. Martial Law Sector 3, Lahore for the purpose of investigation of the case Enquiry No,267/7 under M.L.R.23 and 24.
' And whereas the said Kh. Abdul Halim son of Kh. Abdul Rahim is not traceable.
' Now, therefore, in exercise of the powers conferred on me by M.L.R.40, I Major-General AA.K. Niazi, S.M.LA. Sector 3, Zone 'C' hereby order the said Kh. Abdul Halim son of Kh. Abdul Rahim to report to H.Q. Martial Law Sector 3, Lahore or surrender himself to the nearest police station or M.L.H.Q. Within seven days after issue of this notification. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be. Tried in absentia for the contravention of the said Regulation.
' AA. K. Niazi Major-General ' Sub-Martial Law Administrator Sector 3
3. H.Q. Sub-Martial Law Administrator, Sector 3, Zone 'C'
' NOTIFICATION ' The 12th October 1971 ' No, 502/MLA/AG/5-C/6305--- Whereas Mr. Abdul Halim son of Abdul Rahim, resident of 4-C-1, Gulberg III, Lahore is required by H.Q. Sub-Martial Law, Sector 3, Lahore, for the purpose of investigation of the case F.I.R. No,220, dated 11th June, 1971 under MLR 23 and 16(a) P.S. North Cantt., Lahore.
' And, whereas, the said Mr. Abdul Halim son of Abdul Rahim is not traceable.
' Now, therefore, in exercise of the powers conferred on me by MLR 40, I, Major-General MA. Majid P.S.C. SMLA Sector 3 Zone 'C' hereby order the said Mr. Abdul Halim, son of Abdul Rahim, to report to HQ Martial Law, Sector 3 or surrender himself to the nearest police station or MLHQ by 23rd October, 1971. In case he fails to surrender within the prescribed date, he will render himself to be charged under MLR 40 and will be tried in absentia for the contravention of the said Regulation.
' People's House, Lahore M.I. Karim ' The 9th October, 1971 Major-General ' Sub-Martial Law Administrator, ' Sector 3.
As is established by the perusal of the above Notifications, the petitioners are only ordered to surrender at the nearest police station or M.L.H.Q. By the dates specified therein in their respective cases; and that the requirement of their being declared absconders, as made mandatory by the provisions of sub-paragraph (i) of paragraph 1(a) of the Regulation No,40, has not been complied with. Therefore, sub-paragraph (ii) of paragraph 1(a) could not be invoked in the instant case as it specifically states that a direction to appear before such authority within such period as specified in the Notifications can only be in respect of such person/persons declared to be absconder.
Furthermore, there is nothing on the record to prove that before awarding the punishment for 14 years' R.I. To the petitioners, the provisions of paragraph 1(b) had been complied with i,e. An opportunity had been afforded to them to show reasonable cause to the satisfaction of such authority for their failure to put in appearance; thus failing to fulfil the two condition precedents, before imposing the said punishment. In this respect, it may further be pointed out that even in the parawise comments on behalf of the respondents it has not been claimed that the petitioners were declared absconder or that they had been provided an opportunity to show cause for their failure to put in appearance as directed, before their convictions and sentences, as stated above. In this respect, strength is sought from the following authorities:--
(1) Nazir Ahmad v. King-Emperor AIR 1936 PC 253(2), wherein it was held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden;
(2) Bishundayal Mahton and others v. Emperor AIR 1943 Pat. 366, wherein it was held that first it should be established that a person was absconding before issuing his warrants under the provisions of sections 87 and 88 of Cr.P.C.;
(3) Mansab Ali v. Amir and 3 others PLD 1971 SC 124, wherein it was held that it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction;
(4) Rashid Ahmad v. The State PLD 1972 SC 271, wherein it was held that if a mandatory condition for the exercise of jurisdiction before a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction;
(5) Iftikhar Ahmad Shaikh v. Ch. Muhammad Din and 2 others PLD 1990 Lah. 461, wherein it was held that where the act or thing required by the St4tute is a condition precedent to the jurisdiction of a Tribunal, compliance cannot be dispensed with and if it be impossible the jurisdiction fails. The Court will not be competent to dispense with what the legislature has made indispensable foundation of its jurisdiction, by reproducing the aforestated principle from page 328 of the Maxwell on Interpretation of Statutes; and
(6) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, wherein it was laid down that the acts, actions or proceedings suffering from excess or lack of jurisdiction or were coram non judice or mala fide (be it malice in fact or in law) could not be treated in accordance with law.
6. Therefore, pursuant to the reasons stated above, all the proceedings undertaken in pursuance to the notifications referred to above against the petitioners, including their convictions and sentences of 14 years' R.I. By the Martial Law Authority, purporting to be under the provisions of Martial Law Regulation 40 stated above, are hereby declared to be without jurisdiction, hence coram non judice and as such void and without lawful authority. Accordingly, the present Writ Petitions Nos.964, 1859 and 2374 all of 1974, are hereby allowed with no order as to costs.
Writ .