' AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 24-4-1993 passed by a Division Bench of the Lahore High Court at Lahore in Writ Petition No,6465 of 1992, filed by the three convicts, respondents Nos.1 to 3, against the conviction and sentence of death recorded by the Special Military Court No,7 for offence under section 302/34, P.P.C. Pursuant to F.I.R.
No,401 dated 10-12-1984 lodged by present petitioner at the Police Station, Mandi Bahauddin, in respect of murders of his sons, Shaukat Ali and Amanul Haq, allowing the same in the following terms:- "15. This writ petition is accepted and order dated 14-7-1985 passed by D.M.LA., consequential trial of the petitioners by Special Military Court No,7, their conviction and sentence are hereby declared to have been passed and taken as without lawful authority and of no legal effect and quashed. In the result we order that the learned District Magistrate shall arrange submission of challan before the competent Court of jurisdiction for trial of the petitioners. It shall be done within a fortnight and the latter Court is directed to conclude and decide the case within two months from the date of submission of challan to it. We are informed that on the date on which the petitioners were convicted and sentenced they were under arrest. The said position shall stand restored and they shall continue to be treated as under-trial prisoners till they are granted bail by any competent Court or acquitted."
2. The brief facts are that the Superintendent of Police, Gujrat, after completion of investigation of the above murder case, requested the Deputy Martial Law Administrator-VI, Gujranwala, to transfer the above case to Special Military Court for trial, but the above request was declined through letter No,005/L Legal-3/GRT-29 dated 9-6-1985. It appears that after that, Chief of Staff to the Martial Law Administrator, Zone 'A' through order dated 14-7-1985 ordered the transfer of the above case under sub-paragraph (1) of paragraph 3 of Martial Law Order No,4 on the assumption that the above case was pending in the Court of District and Sessions Judge, Gujrat, though factually it was not pending. The trial proceeded before the Special Military Court No,7, which resulted into conviction and sentences of death to respondents Nos.1 to 3 by order dated 28-9-1985. Thereupon, the above respondents filed Writ Petition No,253 of 1986 challenging the above convictions and sentences.
However, the above writ petition was dismissed as being premature for the reason that their mercy petition was pending before the Chief Martial Law Administrator. After the dismissal of the above mercy petition, the respondents filed Writ Petition No,2808 of 1986, which was accepted by judgment dated 10-12-1991 and it was held that the above order of the Special Military Court No,7 was coram non judice as D.M.LA. Had not approved their trial by a Summary Military Court. The State was directed to present the challan against the above respondents in the Court of competent jurisdiction. Against the above judgment, the petitioner filed Civil Petition No,9 of 1992 for leave to appeal but the same was declined by an order dated 4-2-1992.
3. It appears that neither before the High Court nor before this Court in the above Civil Petition No,9 of 1992, the above order dated 14-7-1985 of the Chief of Staff to the Martial Law Administrator, Zone 'A' for the transfer of the case to a Summary Military Court was noticed. After the dismissal of the above petition for leave to appeal, a. Review petition was filed on the ground that the above order of transfer was not placed before the High Court. The above review petition was allowed by this Court by order dated 3-5-1992 in the following terms:- "Heard. Learned counsel for the respondents/convicts concedes that the order dated 14-7-1985 granting sanction for prosecution of the respondents before the Special Military Court was placed on record by the State counsel in the earlier writ petition bearing No,253/86. Accordingly, the review petition is accepted, the order dated 4-2-1992 refusing leave to appeal is recalled and the petition is converted into appeal and allowed. Order of the High Court is set aside.
' Learned counsel for the respondents/convicts requests for permission to withdraw the writ petition from the High Court and to file a fresh one to raise new pleas. Learned counsel for the petitioner has no objection to it. Accordingly, the writ petition is dismissed as withdrawn with permission to file another writ petition if so advised. The result is that the conviction and sentences imposed upon the convicts/respondents by the Special Military Court are revived."
Against the above order passed upon review petition, a second review petition was also filed but the same was dismissed by an order dated 1-7-1992.
4. After the passing of the above order, the above respondents filed aforesaid writ petition, which has been allowed on the ground that the above order of transfer was passed on the wrong assumption that the case was pending in the Court of District and Sessions Judge, Gujrat, whereas the case was under investigation and that the purported exercise of power under M.L.O. 4(3)(1) was misconceived. The petitioner has, therefore, filed the present petition for leave to appeal.
5. In support of the above petition, Mr. Muhammad Munir Piracha, learned counsel for the petitioner, has vehemently contended that under M.L.O. 4, the Martial Law Administrator had the power to order the trial of a murder case by Special Military Court even when the case was at the stage of investigation and was not pending before any Court.
6. In this behalf, it may be pertinent to observe that the High Court has referred to the various amendments made in M.L.O. 4 in the impugned judgment. It is not necessary to repeat the same as the question in issue is, as to whether the above order of transfer dated 14-7-1985 passed under M.L.O. 4(3)(1) was covered by the above provision. It may be advantageous to reproduce the same, which reads as under:-- "3.--(1) A Martial Law Administrator of a Zone, if he is of the opinion that it is necessary for maintenance of law and order of public tranquility or for expeditious disposal of any case in public interest, may, within the Zone concerned, order that any case pending before an ordinary Criminal Court be transferred to a Military Court and dealt with as provided for in sub-paragraph (1) of paragraph 2 and on the making of an order under this paragraph such case shall stand so transferred Provided that the Military Court to which a case is transferred under this paragraph, shall not be bound to recall and rehear any witness who has already given any evidence and may act on the evidence given or produced before the Criminal Court from which such case is so transferred."
7. A plain reading of the above-quoted provision of the M.L.O. 4 indicates that a transfer order in respect of a case under it could have been made only if the same was pending before an ordinary Criminal Court and not a case which was at the stage of investigation. The conclusion arrived at by the learned Judges of the High Court in the impugned judgment seems to be in consonance with law. Leave is, accordingly, refused.