' The petitioner has challenged the proceedings before the Tribunal under the Defence of Pakistan Rules, 1971 (hereinafter referred to as the Rules of 1971) It is unnecessary to give all the facts given in the petition, the purport of which briefly is that the petitioner had been subjected to criminal prosecution in the past and some of his writ petitions and other petitions have ultimately succeeded. All these facts are given in order to make out a case of mala fide against the Government. In regard to the case in regard to which be is prosecuted now it is stated that the petitioner was invited to address the local Bar at Kharian on the 5th March 1976. On the 6th March 1976, he was scheduled to meet the lawyers at Mandi Bahauddin Bar as well as the students at the Rasul College. While on his way to Rasul College he was stopped by the Magistrate, Mandi Bahauddin who was present in the way along with contingent of police. The Magistrate declined to produce any order and took the petitioner as well as one Lal Hussain Rashid to Mandi Bahauddin Bar from 11-00 to 11-45 a.m. He was thereafter arrested at 12-30 p.m. A false case under sections 124-A, 153-A, P. P. C. And section 16 of the M. P. O. Ordinance was registered against him vide F. I. R.
Annexure 'A'. The petitioner challenged his detention by Criminal Miscellaneous No, 149/H of 1976 and thereafter the Government withdrew the charges under sections 124-A, 153-A, P. P. C. And 16 of the M P. O. Ordinance and sent the case to the Tribunal under the Defence of Pakistan Ordinance, 1971 (hereinafter referred to the Ordinance of 1971), for his trial under rule 49 of the Rules of 1971. After the petitioner appeared before the Tribunal he requested for supply of copies of the statements of witnesses other than those cited in the calendar of witnesses i,e, the statements of such persons who appeared before the Investigating Officer but their statements had not been reduced to writing under section 161, Cr. P. C. As also the complete record of the investigation as prepared by the Investigating Officer. The Tribunal directed the supply of the copies of the statements of the above-mentioned category of witnesses but held that the petitioner was not entitled to have any access to the investigation record. The petitioner challenged the vires of the order of the Special Tribunal in Writ Petition No, 1539 of 1976, but the same was dismissed on the 2nd July 1976. An Intra- Court Appeal is pending against that order. The Tribunal framed a charge against the petitioner on the 21st July 1976.
2. The proceedings before the Special Tribunal have now been challenged on grounds of unconstitutionality, mala fide, as being violative of Articles 4 and 24 of the Constitution and also on the ground that the Rules of 1971 and Ordinance of 1971 do not provide an adequate procedure for fair and impartial trial. It is further stated in the petition that the F. I. R. Does not disclose a case under rule 49 of the Rules, 1971.
3. During the arguments, however, the learned counsel argued that the Ordinance of 1971 violates the equality clause of Article 25 of the Constitution since it lays down a procedure which is different, however slightly, from the procedure provided in the Criminal Procedure Code. The learned counsel also argued that Article 12 is also violated.
4. This petition is liable to be dismissed since all those points should have been taken by the petitioner in his earlier Writ Petition No, 1539 of 1970, which, as stated above, was dismissed on the 2nd July 1976. The only point urged in that petition was that the Tribunal was bound to supply to the petitioner copies of the investigation record. This point was repelled by the Court. It was open to the petitioner to urge in the same writ petition against the jurisdiction of the Tribunal also to take cognizance of the proceedings before it. The present petition is, therefore, barred by the rules and principles of constructive res judicata which was held in Muhammad Yaqub v. Chief Settlement Commissioner (1) to be applicable to the cases under Article 98 of the Constitution of 1962 which was in Part materia with the provisions of Article 199 of the Constitution of 1973. It was observed in that case that the petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. General principle of res judicata is applicable to writ petition also.
5. The learned counsel argued that the principle of res judicata is not applicable to criminal matters. This argument overlooks the fact that the present petition is a petition for a writ in the nature of prohibition. The principle enunciated by their Lordships would apply equally to all cases of certiorori, prohibition or even mandamus, whether the proceedings out of which the petition arises are criminal or civil in nature.
(1) PLD 1965 SC 254
6. Even on merits the petition has no substance. The mere fact the certain other cases have been filed in the past against the petitioner or that h has succeeded in the High Court does not mean that the proceedings starter mow are in continuation of the same proceedings or are male fide for the same reasons. The argument that there is no material for action under rule 49 is also without force in view of the concession made by the learned counsel for the petitioner that the allegations which may fall under the provisions of section 16 of the M P. O. Ordinance and sections 124-A and 153-A, P. P. C. Are also covered by the provisions of rule 49 of Ordinance, 1971. However, this is not a ground for interference in exercise of the writ jurisdiction since the petitioner has an equal adequate remedy before the Tribunal. He can raise this point there and in case of conviction can raise it even in an appeal before the High Court.
7. In order to make out a case of mala fide on the ground of conversion of the case into one under rule 49 despite its being registered under the provisions of the Pakistan Penal Code and section of the M. P.
0. Ordinance which was triable by ordinary Courts acting under the Criminal Procedure Code, the learned counsel argued that the procedure for trial under the provisions of Ordinance, 1971 is much more stringent and the petitioner has been challaned under rule 49 with a view to take advantage of the stringent provisions. The learned counsel, in this connection, referred to the procedure provided by section 10 of the Ordinance, 1971 which reads as follows "(1) Notwithstanding the provisions of the Code, a Special Tribunal may take cognizance of an offence on a report in writing of the facts constituting such offence made by a public servant. ,(2) Save in cases of trial of offences punishable with death or transportation for life, it shall not be necessary in any trial for a Special Tribunal to take down the evidence at length in writing, but the Special Tribunal shall cause a memorandum of the substance of what each witness deposes to be taken down in the English language, and such memorandum shall be signed by a member of the Special Tribunal and shall form part of the record.
(3) A Special Tribunal shall not be bound to adjourn any trial for any purposes unless such adjournment is, in its opinion, necessary in the interests of justice.
(4) A Special Tribunal shall not, merely by reason of a change in its members, be bound to recall and reappear any witness who has given evidence, and it may act on the evidence already recorded by or produced before it.
(5) After an accused person has once appeared before it, Special Tribunal may try him in his absence if, in its opinion, (a) such absence has been brought about by the accused himself with a view to impeding the course of justice, or (h) the behaviour of the accused in Court has been such as to impede the course of justice and the Tribunal has on that account ordered his removal from the Court.
(6) In the event of any difference of opinion among the members of a Special Tribunal, the opinion of the majority shall prevail.
(7) The Central Government may, by notification in the official Gazette make rules providing for- 40 the times and places at which Special Tribunals may site and the procedure to be adopted in the event of any member of a Special' Tribunal being prevented from attending throughout the trial of any accused person.
(8) A Special Tribunal shall, in all matters in respect to which' no procedure has been prescribed by this Ordinance or by rules made thereunder, follow the procedure prescribed by the Code for the trial of warrant cases by Magistrate."
8. It was admitted by the petitioner that the provisions about the commitment proceedings in the Criminal Procedure Code have now been abrogated, the Magistrates are also not bound to give an adjournment, nor they are bound to recall any witness in case the evidence has been recorded by his predecessor. In view of this concession the procedure in subsections (1), (3) and (4) cannot be said to be different from that of the Criminal Procedure Code. The only points of difference the learned counsel pointed out are that the Tribunal has no obligation except in a case of trial of offences punishable with death or transportation for life to take down the evidence at length in writing. On the other hand, the Tribunal can cause a memorandum of the substance of what each witness deposes to be taken down, (subsection (2)) and after an accused person as once appeared before it, Special Tribunal may try him in his absence if, the accused is absent with a view to impeding the course of justice and the behaviour of the accused in the Court has been such as to impede the course of justice and the Tribunal has on that account ordered his removal from the Court. It is, however conceded that none of these two points are relevant to the case of the petitioner. The mala fide cannot be inferred from these circumstances only. It is conceded that the second point is not material in the case of the petitioner being not tried absence reo. As far as the first point is concerned the petitioner need not have any apprehension since the conviction by the Tribunal has been made appealable. Tribunal will have to record substantial evidence to obviate the necessity of any remand for re-trial.
9. Article 12 of the Constitution provides as follows "(1) No law shall authorise the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission ; or
(b) for an offence by a penalty greater than, or of a kind different from the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
' The argument of the learned counsel was that the change of the offence makes Article 12 applicable. This argument is misconceived in view of the clear language of Article 12 which only prohibits ex post facto legislation from making a person liable for an offence which was not an offence on the date when the act or omission attributed to the accused occurred or to provide much more stringent punishment than the punishment for the offence provided on the date on which it was committed. The M. P.
0. Ordinance and the Defence of Pakistan Rules including rule 49 have been on the statute book since before the offence in the present case is said to have been committed. Article 12 is not, therefore, attracted to the facts of this case.
10. The last argument of the learned counsel is based on the equality clause. It is not denied that the Tribunal under Ordinance of 1971 has exclusive jurisdiction to try cases under rule 49 of the Rules of 1971. There being no other Court for trying such cases the equality clause cannot be said to have been violated on that score. The argument of the learned counsel, however, was that since the manner of trial was different and there was no yardstick as to which case should be sent to the Tribunal and which case should be tried by the ordinary Criminal Courts, the law permits the authority to discriminate by exercise of arbitrary jurisdiction between persons committing the similar type of offence. In this connection reference was made to Jyoti Pershad v. Union Territory of Delhi (1) and State of Orissa v. Dhirendranath Das (2).
11. Before considering the point raised under Article 25 of the Constitution I may refer to the case of Malik Muhammad Suleman v. Islamic Republic of Pakistan and others (Writ Petition No, 488 of 1976), decided by a Division Bench of this Court. The vires of rule 49 of the Defence of Pakistan Rules and the Defend of Pakistan Act were considered in that case in relation to a point whether the continuance of the Ordinance could be justified in view of the emergency having ceased to exist.
This objection was repelled after consideration of the history of Emergency Legislation, the case- law on the subject and the provisions of Article 23(6)(2) of the Constitution which provides for a bar against calling in question the validity of a Proclamation of emergency or any order made under Part X relating to emergency provision. It was also held that emergency is a political question which is not justiciable in Courts. In paragraph 5 of the judgment it was held that the Defence of Pakistan Ordinance, 1971 and the Defence of Pakistan Rules, 1971 were also deemed to have been validly made in pursuance of the proclamation.
12. Article 233 of the Constitution in its sub-Article (1) confers an unrestricted power on the State to make any law or to take any executive action notwithstanding Articles 15, 16, 17, 18, 19 and 24 of the Constitution while a Proclamation of emergency is in force. The only rider added to this unrestricted power is that such law to the extent of the incompetency shall be deemed to have been repealed when the proclamation is revoked or has ceased to be in force. Sub-Article (2) further provides that where a Proclamation of emergency is in force the President may by order declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part 2 of the Constitution as may be specified in the order and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such order may be made in respect of the whole or any part of Pakistan. Such an order was issued on the 15th August 1973 but it was rescinded by the President on the 14th August 1974. The scope of these provisions of Article 233 were also considered in the above case of Malik Muhammad Suleman. In view' of the rescission of this order it was held that: "The Constitutional position thus is that although no law made by the State or any executive action taken by it cannot be challenged during the emergency on the ground that it is inconsistent with Articles 15, 16, 17, 18, 19 and 24, the right to move any Court for the
(l) AIR 1961 SC 1602 (2) AIR 1961 SC 1715 enforcement of other Fundamental Rights which were suspended by the order of the President on the 11th of August 1973 now exists and if there is any proceeding in any Court which is for the enforcement involves the determination of any question as to the infringement of any of those rights it stands revived."
In view of the language of section 233 the Ordinance, 1971 cannot be challenged as being violative of the Fundamental Rights provided in sub-Article (1) of Article 233. But Article 25 of the Constitution is not one of the Articles described there. Consequently a law even though made during the continuance of the Proclamation of emergency can be challenged on the ground of being violative of the equality clause after the rescission of the notification issued by the President under Article 233 (2).
13. The point raised by the learned counsel, however, is absolutely -without force. The equality clause particularly the provision about the equal protection of the laws does not mean that all citizens shall be treated F alike under all set of circumstances and conditions ; both in respect of privileges conferred and liabilities imposed. As held in Jibendra Kishor Achharyya Chowdhury etc. v.
The Province of East Pakistan (1) and repeated thereafter consistently in all authorities on the equality clause of any Constitution whatsoever it was held that another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all questions shall be treated alike, under like circumstances and conditions, both in respect of privileges conferred and in the liabilities imposed but in the application of these principles it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relations to the object of the legislation. Another principle laid down was that it is not for the Court in such cases, to demand for the legislation a scientific accuracy in the classification adopted. If the classification is relevant to the object of the act it must be upheld unless relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such a difference, in race, colour or religion will certainly be rejected by the Court.
14. Applying these principles it will be seen that the Defence of Pakistan. Ordinance, 1971 was promulgated to provide for special measures to ensure the security, the public safety and interest of the Defence of Pakistan, and for the trial of certain offences. This legislation was considered imminent on account of issuance of Proclamation of Emergency which is continuing till today. Rule 3 confers upon the Central Government power o to make such rules as appeared to it to be necessary or expedient for ensuring the security, the public safety, and interest and the Defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community. The Defence of Pakista Rules are such rules framed under the powers conferred by section 3. The Government by section 8 of the Defence of Pakistan Ordinance, 1971 was authorised to constitute Special Tribunals consisting of three members to be appointed by the Central Government. It also deals with the qualification of members of the Tribunal, rule 9 makes provisions for trial by the Special Tribunal of offences- (a)
(a) under any rule made under section 3, or punishable with death, transportation or imprisonment for a term which may extend to seven years. (1) PLD 1957 SC (Pak.) 9 triable by any Court having jurisdiction within the local limits of the jurisdiction of the Special Tribunals. Section 10 deals with the procedure of the Special Tribunals but section 12 provides that the Special Tribunal shall have all the power conferred upon a Court of Session exercising original jurisdiction. Originally section 13 provided appeals only against sentences of death or transportation for life or imprisonment for a term extending to 10 years under some provision of the Ordinance but now this provision stands amended and all the order of conviction and sentence passed by the Tribunal are now appealable to the High Court. Section 13-A bars the jurisdiction of other Courts in regard to certain matters which it is unnecessary to describe.
14. The Act therefore considers persons who are tried for any offence inter alia under rules framed under section 3 of the Defence of Pakistan Ordinance, 1971 as a class by themselves. This has been done with a view to achieve the objective of the Ordinance. It cannot be said nor it was argued before me that this classification is irrational or irrelevant to the object of the Act or that the classification appears to be arbitrary or capricious.
15. The question whether an Act which provides for trial of certain offences by a Tribunal and creates such classification contravened the equality clause, came up for consideration before the Supreme Court of Pakistan in Waris Meah v. The State (1). That was a case under the Foreign Exchange Regulation Act. The Foreign Exchange Regulation (Amendment) Act (XXXII of 1956) by adding sections 22-A, 23-A and 23-B to the original Act gave power to the Central Government or the State Bank to determine whether the offender, under the original Act, was to be tried under the Ordinary Law (section 23) or by an adjudication Officer (section 23-A) or by a Tribunal (section 23- B), the three sections prescribing three different punishing authorities, each with different power and procedure and entailing punishment of unequal nature and description. This Regulation was challenged as offending against Article 5 of the Constitution of 1956. Their Lordships held these provisions to contravene the equality clause on the ground that there was not only discretion in the specified authority whether they will proceed at all against any member of the class viz., offenders against the Act but also an unfettered choice to pursue the offence in any one of three different modes which very greatly in relation to the opportunity allowed to the alleged offender to clear himself as well as to the quantum and nature of the penalty which he may incur. It was observed that "the scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For in the absence of any discernible principle guiding the choice of forum among the three provided by the law, the choice must always be in the judicial viewpoint arbitrary to a greater or lesser decree.
16. The facts of the case of Waris Meah are distinguishable since in that case three alternative forums were provided. In the present Ordinance as amended the Tribunal has been given the exclusive jurisdiction inter alia over cases falling under rule 49 of the Defence of Pakistan Rules. In case of Waris Meah an observation was made to the principles applicable to such a case and it was held that in case where exclusive jurisdiction is conferred on a Tribunal even though the procedure prescribed be different from the
(1) P D 1957 SC (Pak.) 157 ' Criminal Procedure Code no objection can be taken to the constitutionality of such an Act. The observation is as follows..
' If the Act had merely set up a Tribunal of exclusive jurisdiction though with a procedure different from that prescribed by the Criminal Procedure Code for the trial of ordinary offences, no objection could successfully have been taken to the constitutionality of the Act because the offender against the Foreign Exchange Regulation could validly and reasonably be considered to be a class different from offenders under the ordinary law. Nor, could any objection on the strength of Article 5 of the Constitution succeed if the Act itself had indicated the classes of cases which were to be tried by the ordinary Courts, the Tribunals and the Adjudication Officers respectively. Even if the Act itself made no such classification but had required the Central Government to make it, the discretion so vested in the Central Government would have been constitutional, provided the classification made by the Government proceeded on a rational and reasonable basis and was not arbitrary, capricious or whimsical."
17. The principle laid down in this observation is fully applicable to the present case and in these circumstances the objection to the constitutionality of the Ordinance of 1971 is without force.
Reference may also be made in this connection to a recent case Brig. (Retd.) F. B. Ali and another v.
The State (1). In that case the provisions of the Defence Services Laws (Amendment) Ordinance, HI of 1967, and the Defence Services Law (Second Amendment) Ordinance IV of 1967 under which the appellants were triable under the Army Act notwithstanding their retirement from the Army was challenged as being in contravention of Fundamental Right No,
15. The entire case-law was considered by their Lordships including the case of Wads Mea v. State. It was held that there was a valid classification and the selection of the category for trial was on rational basis. This authority clinches the matter. I am, therefore, of the view that the Defence of Pakistan Ordinance, 1971 is not hit by the equality clause under Article 25 of the Constitution.
For the foregoing reasons I find no merit in this petition which is dismissed in limine.
(1) PLD 1975 SC 506