1. AMIR-UL-MULK MENGAL, J.---This judgment shall dispose of C.P. No 104 of 1990 wherein the petitioner Asmatullah has sought for a declaration by this Court that constitution of Summary Trial Court as per No,3/89- Secret/A.B. dated 31-10-1989 by the Deputy Commissioner/Political Officer, Pishin, is illegal and that the order dated 6-3-1990 passed by the said summary trial Court is coram non judice and that the petitioner being under illegal custody be released forthwith. 2.Facts leading for filing of this petition, if put in a nutshell, are that on 21-10-1989 one Lal Muhammad alongwith Safar Muhammad were proceeding towards Chaman on a Motor Cycle, whereas a patrolling party of Pishin Scouts headed by one Hawaldar Sher Hyder who was accompanied by Sepoy Asmatullah Kakar (petitioner) Sepoy Iqbal Khattak and Sepoy Javed Anwar were on patrol. It is alleged that after stopping Lal Muhammad and his companion to inquire from them about a piece of cloth, there was some altercation which culminated into firing by Sepoy Asmatullah Kakar at Lal Muhammad who died as a result of such firing. The matter was reported to civil administration Haji Ghulam Muhammad, upon which Tehsildar Chaman rushed to the spot for necessary investigation. He took the dead body and conducted formal investigation into the matter and ultimately submitted his report to the political Agent Pishin through Assistant Commissioner, Chaman. After going through the evidence collected during investigation including statements, the Deputy Commissioner/Political Agent Pishin took cognizance of the matter and constituted a Court of summary trial under section 8 subsection (2) and subsection (3) of Frontier Corps Ordinance, 1959 (Ordinance XXVI of 1959) (hereinafter referred to as the "Ordinance") comprising of the following:- (1)Mr. Anwar Ahmad Khan, President.
2. Deputy Commissioner/Political Officer Pishin.
3. (2)Major Attaullah Jan Shinwari Member.
4. Wing Commander Pishin.
5. (3)Mr. Jalal Khan Mandokhel, Member.
6. Addl: Deputy Commissioner, Pishin.
7. 3.It is pertinent to point out at this stage that during the proceedings, the President of the Court Mr. Anwar Ahmad Khan was transferred and Mr. Munir Ahmad Badini took over from him charge of Deputy Commissioner Pishin and as such presided over the Court.
8. 4.In all, the Court examined six prosecution witnesses, recorded the statements of accused persons and found Asmatullah Sepoy of Pistol Scoots guilty of offence under section 304, P.P.C., as such convicted and sentenced said Asmatullah to undergo R.I. for 10 years of 6-3-1990. Regarding remaining accused persons the Court recommended departmental inquiry.
9. 5.It is further evident that Inspector General Frontier Corps Balochistan took exception on the said judgment and sentence and forwarded a petition to the Secretary Interior Division, Islamabad for quashment of the orders of Summary Trial Court whereby Seopy Asmatullah was convicted and sentenced to 10 years imprisonment. The Learned Secretary vide his order dated 12th of March, 18 set aside the impugned order passed by summary trial Court dated 6th of March, 1990 under the purported exercise of powers conferred upon him by Rule 8(2) of the Frontier Corps Rules, 1961 (hereinafter referred to as the "Rules") and directed the release of convict Asmatullah and handing over him to Fronter Corps Balochistan. It was further directed that a Court of Enquiry be constituted to inquire into the matter and to submit its final report of inquiry to the I.G.F.C. Balochistan for appropriate action.
10. This order was passed on the reference by I.G.F.C. and no notice was issued either to the State or to any aggrieved party. However, when this order was communicated, the Deputy Commissioner Pishin filed Constitution Petition which was admitted on 18-3-1990 as C.P. No,47 1990. A Civil Misc: No,240 of 1990 which was filed alongwith the said petition contained prayer for suspension of the operation of the impugned order. The operation of impugned order was suspended subject to notice to the respondents.
11. 6.Following this Constitutional Petition, one Haji Ghulam Muhammad complainant filed C.P.No,50 of 1990 and C.P.No,51 of 1990 was filed by Abdul Jabbar son of the deceased through his real uncle and both these petitions were admitted for hearing on 26-3-1990.
12. 7.In the meanwhile it so happened that Asmatullah convict filed an appeal against his conviction before the Secretary Interior, Government of Pakistan who was pleased to suspend the order of conviction on 21-3-1990 passed by Summary Court and subsequent thereto issued release order of the convict on 31-3-1990 despite the fact that his earlier order of setting aside the conviction of Asmatullah was suspended by this Court on 18-3-1990, and this suspension order was confirmed on 26-3-1990.
13. 8.On 4-4-1990 Asmatullah filed a Habeas Corpus Petition No,9 of 1990 praying for his release and Inspector General Frontier Corps Balochistan Quetta also filed a petition under section 491-A Cr.P.C. for the release of Asmatullah as Habeas Corpus Petition No,8 of 1990 which was also admitted on the same day i,e, 4-4-1990.
14. 9.However the aforesaid petitions were disposed of by a Division Bench , of this Court on 22-5- 1990. It may be pointed out that on page 25 of the said judgment the Division Bench observed:- ' but no Constitutional Petition has been filed either by the I.G.F.C. or convict Asmatullah to challenge the Constitution of the Court of Summary Trial...."
15. 10.In this petition, therefore, convict Asmatullah has taken a specific plea regarding the Constitution of Court of Summary Trial, challenging its constitution as illegal.
16. 11.It is worth to point out that an application was moved by Mr. Tariq klehmood, Advocate for complainant that his name may be included which was Wowed.
17. 12.Heard counsel for the parties and learned Advocate-General Balochistan.
18. 13.The counsel for the parties wanted interpretation of judgment of this Division Bench as mentioned hereinabove. Counsel for convict Asmatullah strenuously urged that since this Court has already held that the question of irisdiction of Court of Summary Trial as well as its constitution were not in issue in the previous petitions, therefore, the Court while agreeing with the contention of learned Advocate-General Balochistan held on page 26 of the judgment as under:- "Thus we find sufficient force in the contention raised by learned Advocate-General, Balochistan that no writ can be issued in certiorari, suo motu by the Court in absence of any prayer by any aggrieved person. We are fortified in our view by the aforesaid two judgments of the Hon'ble Supreme Court".
19. He, therefore, argued that the question of constitution of a Tribunal being a legal question has been taken in this petition and as this Court has already held while disposing of the previous petitions on the subject that power of the Court of Summary Trial extends only to cases in emergency, particularly when the force is beyond the frontiers of Pakistan as mentioned in the proviso to subsection (1) of section 8. Consequently offenders who commit offence of mutiny, conspiracy etc., as mentioned in clause (a) of subsection (1) of proviso to that subsection beyond the limits of Pakistan or on Gasht including murder, then it would be the Court of Summary Trial which shall be competent to try such cases. But in any other case these offences would be offences under the Ordinance, thus triable by a Court of Session within the meaning of section 17 of the Ordinance.
20. Learned counsel urged with considerable vehemence that the Political Officer was not accompanying the patrolling party, therefore, he had no jurisdiction to take cognizance and try the case within the meaning of aforesaid section. It is a clear case where the Political Officer could try the case within the meaning of section 17 of the Ordinance. Thus the trial of convict Asmatullah was conducted by a Court which was not legally constituted and had no power to try the convict.
14. Learned counsel in support of his contention submitted that this Court has already held in Civil Petition No,47 of 1990 and other connected petitions on page 9 of the judgment as under:- "It may be added for clarification that cognizance of an offence under section 8(2) is taken by the Political Officer accompanying the force (underlining is ours). Thus we want to put it in unequivocal term that offence of murder can be tried by Court of Summary Trial only when the political officer is accompanying the force. Here the argument advanced by Mr. Ehsanul Haq, counsel for petitioner Asmatullah becomes relevant. According to his plea, the offence of murder mentioned in section 8(2) is relatable to proviso to section 8(1) of the Ordinance. The word "or" may be read as conjunctive and not disjunctive in order to give effect to subsection (2) of section 8. Court of Summary Trial can try cases as mentioned in the proviso "committed beyond the limits of Pakistan and obviously if muder is committed during such period then the political officer accompanying the force would be competent to take cognizance and summarily try an offender as well as to execute orders under subsection (4) of section 8.
21. We find sufficient force in the said argument and observe that the purpose of subsection (2) was to try summarily any cases in emergency particularly when the force is beyond the frontiers of Pakistan as mentioned in the proviso to subsection (1) of section 8. Consequently offenders who commit offence of mutiny, conspiracy etc. as mentioned in clause (a) of subsection (1) or proviso to that subsection beyond the limits of Pakistan or on Gasht including murder, then it would be the Court of Summary Trial which shall be competent to try such cases. But any other case these offences would be offences under the Ordinance, thus triable by a Court of Session within the meaning of section 17 of the Ordinance.
22. Offences falling under section 8 excludig those mentioned in subsection (2) thereof as well as offences covered under section 9 of the Ordinance are triable by the Court of Session or a Court of Magistrate which may be constituted by the Central Government for the purpose.
23. Minor offences for which summary punishments have been provided for as mentioned in section 10 of the Ordinance are triable by the I.G.F.C. or his delegate, or Commandant etc. Consequently for three sets of offences as mentioned in the Ordinance hereinabove, there are three classes of Courts to try the same".
24. He thus concluded that since admittedly the political officer was not accompanying the force at the time of commission of offence of murder, therefore, he had no jurisdiction at all to have constituted a Court of Summary Trial and thus the entire proceedings are ab initio illegal.
25. 15.In reply thereto learned Advocate-General contended that in fact this petition is hit by principles of res judicata. In this regard learned Advocate-General stated that this Court has already disposed of Civil Petition No,47 of 1990 and other connected petitions and a second petition on the points is thus not maintainable in view of principles of section 11, C.P.C. Second contention raised was that the petitioner is now estopped to challenge his conviction on the plea that the forum trying it, was coram non judice.
26. 16.We are afraid that we cannot associate ourselves with the aforesaid contentions, firstly because the question of constitution of the Court of Summary Trial was not at issue in the previous petitions and this was specifically pleaded by the learned Advocate-General that this Court should refrain from determining that question suo motu, hence this question was left undecided. As far as the question of estoppel is concerned it also shall not apply in the case because it is a settled law that if forum which is coram non judice tries an accused person, then the entire proceedings conducted by such Tribunal/Court are ab initio illegal.
27. 17.Since we have already held that offence of murder can be tried by a Court of Summary Trial only when the political officer is accompanying the. force and it is not denied by any party that the political officer in the instant case was not accompanying the force, therefore, he was not competent to have proceeded with the trial within the meaning of section 8(2) of the Ordinance.
28. 18.To our mind while interpreting section 8(2) in previous petitions (C.P. No, 47 of 1990 and other connected petitions) we have so held, therefore, we cannot take a different view.
29. 19.It is, thus, clear that the convict Asma tullah was tried by a forum which was not competent to try him under section 8(2) of the Ordinance. His conviction is, therefore, declared to have been passed illegally and by a forum having no jurisdiction, thus, it has no legal effect. It is a clear case where Court of Sessions within the meaning of section 17 of the Ordinance has got jurisdiction to try the accused.
30. 20.From the above discussion we conclude that the sentence by Court of Summary Trial against convict Asmatullah was passed by a Court having no jurisdiction. Thus, the conviction order dated 6-3-1990 is hereby declared as having been passed by a Court having no jurisdiction under law and has been passed without lawful authority and, thus, the same has no legal effect. The conclusion would be that convict Asmatullah shall be treated as an undertrial prisoner and to be dealt with in accordance with law. There shall, however, be no orders as to costs.