' RASHEED AHMED RAZVI, J.---Through this common order, we intend to dispose of seven (7)
Constitutional petitions bearing Constitutional Petitions Nos.D-49 of 1987, D-137 of 1988, D-61 of 1990, D-96 of 1992, D-120 of 1992 and D-535 of 1994, since the petitioners have called in question sentences/convictions, awarded to them, in separate cases by the Summary Military Courts wherein common questions of law are involved. However, we would like to state, in brief, the facts of each constitutional petitions:--- Constitutional Petition No,D-49 of 1987
2. In this petition, the petitioner was convicted and sentenced by Summary Military Court No,IV, Hyderabad, on 27-1-1980 to undergo one year R.I. And fine of Rs,5,000 for allegedly committing offences under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the "Act, 1947") read with M.L.O. 59 arising out of F.I.R./Crime No,11 of 1979, dated 24-11-1979 of Anti-Corruption Establishment, Hyderabad, (hereinafter referred to as the "A.C.E., Hyderabad"). Instant petition was filed on 4-8-1987. Petitioner was arrested as a result of trap arranged under the instructions of one Major Nisar Sarwar by the complainant/Inspector of ACE Hyderabad and amount of tainted money of Rs,200 was secured from the waste paper basket lying under the table. This fact was recorded in the F.I.R. It is an admitted fact that the raid was not supervised by any Magistrate; therefore, the petitioner has prayed for quashment of sentence/conviction passed by Summary Military Court. On 28-10-1987 preadmission notices were issued to D.A.G. And they were required to file their comments but despite passing of more than ten
(10) years neither any counter-affidavit to the contents of petition nor any parawise comments have been filed. However, on 21-9-1992 a statement was filed by the Assistant Advocate-General, Sindh, alongwith copy of order of sentence awarded by Summary Military Court and Extract of Chief Martial Law Order No,IV. No other record of the Trial Court or any other material was placed before this Court.
Constitutional Petition No,D-137 of 1988
3. In this case, the petitioner was convicted and sentenced to suffer R.I. For one year and fine of Rs,5,000 by Summary Military Court No,VIII vide order, dated 27-7-1981 for the same offence as of Constitutional Petition No,D-49 of 1987 arising out of F.I.R./Crime No,15 of 1981, dated 10-6-1981 of A.C.E., Hyderabad. The petitioner was Sub-Registrar T' Division, Hyderabad, who, as alleged in the F.I.R., demanded Rs,1,000 as "Kherchi" from the complainant for registration of sale agreement, whereupon the complainant went to the A.C.E., Hyderabad, and lodged the said F.I.R. On the basis of said conviction/sentence, the petitioner was summarily dismissed from his service. It is admitted by the petitioner that he was arrested from his office on the next day after lodging the F.I.R. i,e,, 11-6- 1981 and tainted money was recovered from the pin cushion lying on one of the tables in his office.
It is alleged that such trap was not conducted under the supervision of the Magistrate. It is also claimed that no proper trial was conducted, as provided under the Pakistan Army Act and Rules and that it was a case of no evidence; but, despite that, the petitioner was convicted. Therefore, petitioner has prayed that the judgment/conviction passed by Summary Military Court, No,VIII, Hyderabad, be set aside. In this case also, the respondents had neither filed any counter-affidavit to the petition nor any parawise comments. No record was produced during hearing of this petitidn. The only documents filed are the same as in the earlier case through a statement of Assistant Advocate-General, Sindh.
Constitutional Petition No,D-142 of 1988
4. On 13-8-1981 petitioner was serving as Project Manager, when on a spy information, an F.I.R. Was lodged with the A.C.E., Hyderabad, bearing Crime No,25 of 1981 under sections 409 and 429, P.P.C.
Read with section 5(2) of Act, 1947 and r/w M.L.O. 59 and M.L.R. 14, on the ground that the petitioner was involved in secretly selling chana and dall etc. Etc. In the F.I.R. Two more persons were implicated, who were also arrested alongwith the petitioner. It is alleged in the petition that no opportunity for leading evidence was afforded to the petitioner and that as a result of such conviction, the petitioner was dismissed from his service. He has prayed that the sentence/conviction recorded by Summary Military Court No,VIII, Hyderabad, be quashed/set aside, being illegal and corum non judice. In this case also learned Assistant Advocate-General, Sindh, has placed the same documents as in the two earlier cases, which do not show whether any trial and conducted, and, if so, what procedure was adopted.
Constitutional Petition No,D-61 of 1990
5. In this case the petitioner, at the relevant time, was working as Sub-Registrar 'T' Division, Kotri when on 15-8-1979, complainant namely Haji Zaki Saleh Muhammad made a complaint to Sub- Martial Law Administrator, Zone Korti, at Hyderabad that one Jhundo Khan alongwith some other people, on the basis of forged and fabricated sale-deed, which was registered with the Sub- Registrar office of the petitioner has sold his land to WAPDA. In this F.I.R./Crime No,4 of 1982 of A.C.E.
Dadu, under sections 406, 420, 468 and 471, P.P.C. Of M.L.R. 14 and M.L.A. 77, two other persons were nominated as co-accused who were supervising Tapedar, Kotri and Reader Civil Court, Kotri. It is an admitted position that the sale-deed was executed and registered in the year 1978. However, this F.I.R. Was registered on 18-1-1982. Before that, the complainant had also filed a suit before the Civil Judge, Korti, without impleading the present petitioner in that suit. On 26-4-1983, petitioner was sentenced/convicted by Summary Military Court No,XX, Hyderabad, to suffer R.I. For six months. In the petition, mala fides were alleged against the A.C.E., Dadu and Martial Law Authorities. It is claimed that the petitioner, in his capacity as Sub-Registrar, had registered the sale-deed strictly in accordance with the provisions of the Registration Act, 1908. The impugned conviction/sentence is assailed on the ground that the petitioner was condemned unheard and was not afforded adequate opportunity to prepare his defence and that the Summary Military Court has no jurisdiction to try and convict the petitioner. It is prayed that the sentence/conviction passed by Summary Military Court No,XX, Hyderabad be set aside/quashed and that the services of the petitioners may be restored with all back benefits. In this petition, the Government of Sindh through the Chief Secretary, (ii) The Presiding Officer, Summary Military Court No,XX, (iii) The Circle Officer, A.C.E., Dadu and (iv) The Inspector-General of Registration, Sindh were impleaded as respondents.
On 26-8-1992 Assistant Advocate-General, Sindh had filed his statement alongwith copy of the order of sentence passed by Military Court. However, one counter-affidavit was filed by the respondent No,4, namely Inspector-General of Registration, Sindh, who, after going through the contents of the petition, has admitted paragraphs 1 to 9 and opined that the document registered by the petitioner was in the lawful manner and entered into records strictly according to the prescribed provisions of Law. Reliance was placed on section 35 of the Registration Act. No other document or record of Trial Court was placed despite the fact that the instant petition is pending for last seven (7) years.
Constitutional Petition No,D-96 of 1992
6. The petitioner, at the relevant time, (i,e, 1978) was serving as Reader in the Court of Civil Judge, Kotri. He was involved alongwith the petitioner Inayat Ali Shah of Constitutional Petition No,D-61 of 1990 in the same Crime No,4 of 1982 A.C.E., Dadu, The facts being same as of Constitutional Petition No,D-61 of 1990, need not be repeated here. However, one counter-affidavit was filed on behalf of respondent No,2 namely, Government of Sindh by a Section Officer of Home Department. It is pertinent to note that this Section Officer to the Government of Sindh, Home Department, Karachi, has denied only paragraph 8 of the petition, where it is alleged that after a lapse of nearly four (4) years after the alleged incident, complainant lodged a complaint with the Martial Law Authorities and at their instance, F.I.R., was registered. The important paragraphs of the petition, whereby it is alleged that the petitioner was not afforded proper opportunity to defend himself and that the provisions of Martial Law Regulations and Orders were flouted and that the conviction/sentence was without jurisdiction, were not denied. A bare statement was made in the counter-affidavit that the petitioner was rightly tried and convicted. No other document or any case file of the Summary Military Court was produced. It was vehemently argued that in both the cases bearing Constitutional Petition No,D-61 of 1990 and Constitutional Petition No,D-96 of 1992, the so-called trap/raid was not conducted under the supervision of a Magistrate.
Constitutional Petition No,D-120 of 1992
7. In this petition, the petitioner was convicted by Summary Military Court No,XX, Hyderabad for an offence arising out of F.I.R. No,1 of 1984 of A.C.E., City Hyderabad, on a complaint lodged by Muhammad Amin Ghori. At the relevant time the petitioner was serving as Encroachment Inspector in Municipal Corporation of Hyderabad. It is claimed in the petition that the petitioner demolished some unauthorised portion of a construction raised by the complainant on the municipal land, which resulted in enmity with said complainant, who falsely lodged the report and got him arrested on 4th January, 1984 while the petitioner was sitting in Babu Hotel near the place of this office. It is further claimed that the alleged tainted money of Rs,500 was recovered from one Abdul Hameed son of Wali Muhammad, who was sitting next to the petitioner. In this case the trap was conducted under the supervision of a Magistrate. The A.C.E., Hyderabad, filed challan before the Summary Military Court at Hyderabad. The petitioner was convicted and sentenced on 20th May, 1984, by the said Military Court to undergo R.I. For one year, 10 lashes and a fine of Rs,5,000. It is pleaded by the petitioner that he was not provided any right of defence nor any opportunity was granted to him to produce any defence. As a result of such sentence, the services of the petitioner were terminated. It is further pleaded that no evidence of either accepting tainted money or for its recovery from the possession of the petitioner was produced before the Summary Military Court.
8. In this case respondent No,3, namely Anti-Corruption Establishment, Hyderabad, has filed its reply. However, in this reply, the allegations that the petitioner was not afforded proper opportunity to lead evidence was not denied specifically on the ground that it is up to the Military Court to deny the same. It is also admitted that the tainted money of Rs,500 was recovered from another person namely Abdul Hameed and not from Abdul Hameed son of Abdul Ghafoor Khan, who is the petitioner in this case. However, it is claimed that the said Abdul Hameed was a tout of the petitioner. Except for this bare denial, no other document was produced before this Court.
Constitutional Petition No,D-535 of 1994
9. In the year 1981 petitioner was serving as Sub-Inspector in the Central Intelligence Bureau, Government of Pakistan at Mirpurkhas. On 25-10-1981, F.I.R. Was lodged at A.C.E., Hyderabad, under section 161, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, and the accused was arrested on the allegation that he received cash against the promise to get the complainant some job. In the F.I.R. It was alleged that petitioner was threatening the complainant in order to extort illegal gratification by using his official position and that complainant had promised to pay an amount of Rs,20,000 to the petitioner on 25-10-1981. In this case also petitioner was arrested as a result of an alleged trap but again, as claimed in the memo. Of petition, this trap was not supervised by any Magistrate and the tainted money was not recovered from possession of the petitioner. He was convicted and sentenced for one year R.I. And fine of Rs,40,000 and 15 lashes. The Home Department, Government of Sindh, has filed parawise comments through Additional Advocate-General in which it was stated only that the petition was remanded by the Special Military Court No,18, Hyderabad, and that the said Court imposed sentence/conviction as above. In reply to the paragraphs of this petition, no comments were offered. No other documents or record was produced before the Court.
10. We have heard Messrs Allah Bachayo Soomro, Abdullah Khatri, Anwar Zaheer Jamali, Muhammad Yousuf Leghari, Nishat Warsi, Rasool Baksh Unnar and Syed Jehangir Shah, Advocates for the petitioners. We have also heard Mr. Abdul Sattar Kazi for the Deputy Attorney-General and Mr. Bahadur Ali Baloch for the Advocate-General Sindh, M/s. Abdul Aziz Sheikh and P.M. Amer, Advocates for the respondents in Constitutional Petition No,D-120 of 1992 and Constitutional Petition No,D-142 of 1988.
11. In all these petitions, it is alleged that the conviction and sentence of the petitioners by the Summary Military Courts was mala fide; that such conviction is based on the instance of some police officials and/or army personnel who were inimical to the petitioners; that no proper opportunity to defend was afforded to the petitioners by the Military Courts; that the so-called evidence produced by the prosecution was not reduced in writing; that the petitioners were not permitted to produce any defence; that, in fact, no real trial took place and that the petitioners were convicted in violation of provisions of Pakistan Army Act, 1952 and Pakistan Army Rules, 1954.
Reliance was placed on the cases Jahandad and 6 others v. President's Special Military Court No,88 sector 1 and 3 others (PLD 1990 Peshawar 63), Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) as well as three unreported cases of this Court, namely Gul Hasan Brohi v.
Province of Sindh (C.P. D-1207 of 1986), Rafi Ahmad v. Federation of Pakistan and 2 others (C.P. D- 523 of 1986) and Mst. Saeedan Khatoon v. Government of Pakistan and 2 others (C.P. D-222 of 1986). Mr. Anwar Zaheer Jamali has placed reliance on a recent case of Hon'ble Supreme Court in Sabur Rehman and another v Government of Sindh and 3 others (PLD 1996 SC 801). Nearly in all the above cases, either reference, or reliance, was placed on the case of Ghulam Mustafa Khar (ibid). It was followed by other benches of this Court as well. Following is the relevant portion of the said judgment which the counsel for the petitioners have vehemently relied upon:--- "30. 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.... ....Article 25 of the Constitution states that all citizens were equal before the law and were entitled to equal protection of law. The trials held by the Military Courts violated this fundamental right not only for the reasons that the procedures followed by these Courts were much harsher than those obtaining in the ordinary Criminal Courts and that there was no substantial right of appeal but also on the ground that there was no reasonable criterion for selection of cases for transfer to those Courts."
12. In the case of Rafi Ahmed (C.P. D-523 of 1989) it was held, inter alia, by a Division Bench of this Court comprising Mamoon Kazi and Kamal Mansur Alam, JJ., that in the exercise of Constitutional jurisdiction, the High Court is not called upon to enter into reappraisal of evidence in a case but the Court is competent to examine evidence to find out whether the impugned order is based on no evidence or on complete misreading of evidence or the action against the petitioner is discriminatory or mala fide. In the case of Gul Hasan Brohi (Constitutional Petition D-1027 of 1986) the petitioner was convicted and sentenced by Summary Military Court under section 5(1) of the Prevention of Corruption Act, 1947, which was assailed through a Constitutional petition on the ground of irregularities committed during the trial. Reference was made to section 112 of the Pakistan Army Act, 1954. In that case it was pleaded that the rules of evidence in proceedings before the Court Martial the same as those which are applicable before a criminal Court. A learned Division Bench of this Court comprising Hussain Adil Khatri and Syed Haider Ali Pirzada, JJ. (as they then were) while following the rule laid down in the case of Malik Ghulam Mustafa Khar (supra) allowed the said petition and declared that the proceedings before the Summary Military Court suffer from the lack of jurisdiction and were mala fide in law. Another Division Bench of this Court comprising Syed Haider Ali Pirzada and Salahuddin Mirza, JJ. (as they then were) in the case of Mst.
Saeedan (C.P. D-222 of 1988) accepted the constitutional petition challenging the judgment passed by Special Military Court No,12 on the ground, inter alia, that the proceedings before the said Martial Court were without jurisdiction. In the recent case of Sabur Rehman (ibid) the petitioners were convicted by the Special Military Court for the offences under section 10 of the Dangerous Drugs Act, 1930 read with section 156(1) of the Customs Act, 1969 for allegedly exporting 1041 Kgs. Of Charas. They filed constitutional petition before this Court challenging such conviction/sentence, passed by the Special Military Court, which was dismissed against which they went into appeal before the Hon'ble Supreme Court and by majority decision the appeals were dismissed and the order of this Court dismissing Constitutional petition was upheld. However, all the three learned Judges were of the opinion, while following the rule laid down in the case of Malik Ghulam Mustafa Khar (ibid) that the jurisdiction of High Court or of Supreme Court is not barred from reviewing the acts, actions or proceedings which had taken place during Martial Law days and which suffered from the lack of jurisdiction or were corum nonjudice or were mala fide. We would like to quote observation of Saad Saood Jan, J., (as his lordship then was) in the case of Sabur Rehman (ibid), which is very relevant for these cases, that "in view of the protection afforded by Article 4 of the Constitution, to the citizens during the said period, convictions based on no evidence by Special Military Court were bad even when they were recorded, and, after the restoration of the Constitution those still continuing to suffer thereunder could ask Superior Courts to intervene and grant them relief." A Division Bench of Peshawar High Court also observed while declaring the sentence passed by a Special Military Court, N.-W.F.P. That "that the excess of jurisdiction by the Military Court is not justified as the same has no nexus with the limited objectives of Martial Law and that the trial of the petitioners by the Military Court was not bona fide directed to achieve the said limited objectives of the Martial Law or Constitutional deviations recognised by the Supreme Court." Recently, in the case of Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426 at p.515) the Hon'ble Supreme Court reiterated the rule laid down in the case of Ghulam Mustafa Khar. A resume of above case-law leads us to observe that where there was neither sufficient evidence before the Military Court nor the rules for conducting a trial were followed by that Court and where no proper opportunity to defend was extended to an accused, such proceedings cannot be held to be bona fide.
13. There are four kinds of Court Martial, as defined under section 80 of the Pakistan Army Act, 1952 (hereinafter referred to as the Act, 1952) which are as follows:-
(i) General Court Martial.
(ii) District Court Martial.
(iii) Field General Court Martial.
(iv) Summary Court Martial.
' According to section 88 of the Act, 1952, the Summary Court Martial may be held by the Commanding Officer of any Corps or any Unit or any attachment thereof and he shall alone constitute the Court accepting cases provided in the proviso to subsection 1. Section 101 of Act, 1952, restricts Summary Court Martial from pronouncing any sentence of death or imprisonment of life or of rigorous imprisonment for a term exceeding one year. The most relevant provision is section 112 of the Act, 1954, which envisages that subject to the provisions of the said Act the rules of evidence in proceeding before Court Martial shall be the same as those which are followed in criminal Courts. Rules 19 and 21 of the Pakistan Army Act Rules, 1954 (hereinafter called as Rules, 1954) prescribed the manner in which a Charge is to be framed. Rule 23 extends rights to an accused person facing trial before a Court Martial for preparing his defence, freedom of communication with his witnesses, with any of his friend or defending officer or legal adviser whom he wishes to consult. Rules 47 and 48 provide ample opportunity to accused facing trial before Court Martial to produce defence and to call his witnesses. It has been alleged by the petitioner that no proper opportunity was afforded to the petitioners to defend themselves and that they were not allowed to prepare and lead their respective defence. In fact, in all these petitions it has been specifically alleged that no trial at all was conducted which allegation has gone unrebutted and unchallenged.
All the aforesaid provisions of Act, 1952 and Rules, 1954 extend full opportunity of fair trial to an accused person facing trial before the Court Martial but from the record, whatever produced by the respondents, it does not transpire that the trial before the Summary Military Court was conducted in a manner as prescribed in the Act, 1952 or under the Rules, 1954.
14. It is pertinent to note that in all these cases the petitioners were arrested as a result of trap arranged by A.C.E. It was contended that these traps were of no legal consequences, as the same were not supervised by a Magistrate but no provision of law was cited to show that it is a requirement of law that a trap is to be supervised by a Magistrate. However, it was also claimed by the petitioner in C.P. No,D-449 of 1987 that the tainted money was allegedly recovered from the waste basket lying in the office of the petitioner while in C.P. No,D-137 of 1988 the tainted money was found by the raiding party lying on one of the table of office in which petitioner used to sit. In C.P. No,D-120 of 1997 the tainted money was allegedly recovered from another co-accused. All these allegations in the petitions remained unrebutted and unchallenged. It is further pertinent to note that in the case i,e, in C.P. No,D-61 of 1990 and C.P. No,D-96 of 1990, which arise out of the same crime, the Inspector-General of Registration admitted the case as set up in the petition. In these petitions, the F.I.R. Was lodged after a delay of four years when prior to that a civil suit was filed by the complainant of the F.I.R. Seeking cancellation of the registered sale-deed where no allegations of any fraud, forgery or connivance were attributed towards the petitioners of these two cases. All these circumstances lead us to hold that the cases of the prosecution in all these petitions were not proved beyoud reasonable doubt and despite several irregularities and violation of provision of Army Act and Rules 1954, the learned Presiding Officers of these Summary Military Courts proceeded to pass conviction/sentence.
15. Some of these petitions are pending for the last more than ten (10) years but despite passing of this long period the respondents were not able to place any record to show that the provisions of Act, 1952 and/or Rules, 1954 in respect of trial before a Summary Military Court were fully followed.
The only document(s) placed by the respondents are the charges framed against the petitioners and the order of sentence/conviction. No other material was placed before the Court in order to ascertain what evidence, if any was produced by the prosecution which resulted in passing of the impugned conviction/sentences. No counter-affidavit was filed denying the allegations of the petitions which are of serious nature. It was argued that in absence of any rebuttal or opposition to the contents of the petition, the same are to be treated as accepted. It is settled law that where a party who is required to deny a fact fails to deny the same, such fact is deemed to have been admitted. (For reference see Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi and 3 others PLD 1972 Karachi 119). It was observed by a Division Bench of Balochistan High Court in Muhammad Gul Kakar v. Province of Balochistan (PU 1979 Quetta 66) that the facts of the writ petition which were fully supported by an affidavit of the petitioner stand proved since, no counter- affidavit was filed by the respondent. In Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79) it was held by the Hon'ble Supreme Court that the reasons explained in an affidavit filed by the respondent went unchallenged as no counter-affidavit was filed by the petitioner. For further reference, see Mahmood Ahmad (Muhammad Ahmed) v. Tribunal/S.D.M. City Hyderabad (PLD 1985 Karachi 187) and Mrs. Majeed Fatima v. District Magistrate and Deputy Commissioner, District Central, Karachi and 3 others (PLD 1990 Karachi 470). On the basis of the aforementioned convictions/sentences the petitioners were removed from their services and were also deprived of other benefits and privileges of the service like pension and gratuity. We have examined in detail the two documents submitted by the Federal Government, which are mentioned earlier, but these documents do not reflect that the trial before the Summary Military Courts was conducted in a manner as prescribed by the Law. We are, therefore, of the considered view that these petitions must succeed.
16. As a result of the above discussion, we allow all these Constitutional petitions and hold that the proceedings before the Summary Military Courts were mala fide and without jurisdiction and, therefore of no legal effect.