This judgment disposes of the Constitutional Petitions of the following two categories : Category A
(1) W. P. No. 4190/77Dil Mohammad v. Summary Military Court and others.
(2) W. P. No. 85/78 Anwar Begum v. Summary Military Court and others.
(3) W. P. No. 52/78 Rao Nawaz Chishti v. Summary Military Court and others.
(4) W. P. No. 157/78 Anwar A.I Shah v. Summary Military Court and others.
(5) W. P. No. 3950/77 Rana Muhammad Aslam, Lure Superintendent WAPDA v. Summary Military Court and others.
(6) W. P. No. 65/78 Nasir Hussain, S. I. Market Committee v. Summary Military Court and others.
(7) W. P. No. 4019/77 Muhammad Yasin, Revenue Patwari v. Summary Military Court and others.
Category B
(1) W. P. No. 75/78 Fateh Muhammad, Senior Clerk, Revenue Office. Electricity WAPDA v. Summary Military Court and others.
(2) W. P. No. 19/78 Rana Ghulam Hussain, Sub-Inspector, RukanWur v. Summary Military Court and others.
(3) W. P. No. 3912/77 Muzaffar Malik, Chief Superintendent, Gujranwala Cantonment Board v.
Summary Military Court and others,
(4) W. P. No. 3761/77 Muhammad Hussain, Sales Accountant, Colony Branch v. Summary Military Court and others.
(5) W. P. No. 4021/77 Muhammad Anwar, A. S. L, Police Station, Rukanpur v. Summary Military Court and others.
2. All these petitions relate to convicts who were public servants and were accused of offences of bribery and corruption. Cases were registered against them under the normal law applicable to public servants in the matter. All of them were tried by Summary Military Courts and the uniformity disclosed in their trial is that they were accused or charged of having contravened MLO 7 and were either punished for contravening that order for contravention of MLR 14. Their conviction and sentence has been challenged on a number of grounds but it is proposed to examine only two legal grounds which ultimately prevail for the purpose of the grant of relief claimed by the petitioners or on behalf of convicts. The first ground is that the offences for which the convicts of the Category A were tried by the Summary Military Courts were not punishable under the law applicable to them i.e., of bribery and corruption by imposition of lashes and therefore the punishment imposed on them is contrary to law and without jurisdiction. This ground relates to all the petitions of Category A. The other ground which is common to both the categories is that the trial of all these convicts under MLO 7 or for that matter under MLR 14 was entirely misconceived and without jurisdiction and therefore the trial as well as the sentence imposed is without lawful authority.
3. The second ground being common to both the Categories of the writ petitions is being taken up first. Before that is done, however, it must be pointed out that in none formal written statement has been filed or even at the bar the facts disclosed or alleged in the petitions disputed. The result, therefore, is that one has to go mostly by the allegation made in the petition and for that reason only the legal aspect of it has to be entertained at this stage and not the factual aspect of it which would have required inquiry into greater detail.
4. Martial Law Order 7 which is said to have been contravened has actually been observed in all these cases as indicated in one of the admitting notes. Martial Law Order 7 is not an offence creating order but an order which prescribes a forum for the trial of offenders. It is reproduced hereunder :- Martial Law No. 7 "Whosoever offers or attempts to offer bribe or illegal gratification in any form or manner and whosoever accepts such bribe or illegal gratification, and whosoever abets or induces or attempts to induce someone to offer or accept bribe or illegal gratification in any manner or form with the object that in the course of transaction of official business some favour or disfavour shall be obtained for any one, some service or disservice shall be rendered for undue benefit of someone, shall be tried by a military Court."
Martial Law Regulation No.14 is applicable only where a Martial Law Order is contravened and the contravention alleged in all the cases is of MLO 7. There being no contravention of Martial Law Order, Martial B Law Regulation 14 is inapplicable. Martial Law Order 7 has been substituted on 18-1- 1978 by the following Order No. 7. It reads as under :- "No person shall offer or attempt to offer bribe or illegal gratification in any form or manner and no person shall accept any bribe or illegal gratification for himself or any other person or induce or attempt to induce any person to offer or accept such bribe or illegal gratification in any form other than a legal remuneration as a motive or reward for doing or forbearing to do any act or for showing favour of disfavour to any person, in relation to an official business."
Now it has become a Martial Law offence from 18-1-1978. Previous to that it was merely a forum prescribing order which enabled, independent of the other powers possessed by the Summary Military Courts, to try even those public servants in respect of whom the allegation was that the were guilty of bribery and corruption. Therefore, the very assumption o jurisdiction, the framing of the charge, the trial and the punishment imposed were all under a misconception that it was a case of contravention o Martial Law Order punishable with five years' R. I. Or forfeiture of proper and whipping not to exceed 20 stripes when it was not so. If it had been an ordinary trial under the prevailing laws of the land in Courts having plenary jurisdiction, it would have been possible to resort to certain saving provisions of the law or powers inherent in Courts and proceedings to explain the omissions and deviations. The Summary Military Courts have been exercising an exceptional jurisdiction rooted in State necessity. They have a limited jurisdiction and therefore if they assume jurisdiction they must do it within the four corners of the law that they have themselves framed. If they have any misconception about it or are mistaken about it, or overreach it, or apply it in utter disregard of facts and circumstances of the case, then it is not possible to defend their actions on the ground of substantial justice, as if justice is independent of these factors. The very assumption of jurisdiction in these cases as cases of contravention of Martial Law Order or Regulation was wholly without jurisdiction as also the proceedings and result of the trial.
5. It is conceded by the learned Assistant Advocate-General that the law applicable to the public servants does not provide for imposition of lashes as a punishment and unless there has been contravention of Martial Law Order or a Regulation punishment of lashes could not be imposed.
There has taken place in all these cases which are of date before 18th of January 1978, no contravention of any Martial Law Order or Regulation on the subject and none has been so indicated. Therefore, the punishment of lashes is doubly without jurisdiction.
6. All these petitions are allowed with costs and the orders of the Summary Military Courts are declared to be without lawful authority and of no legal effect. The convicts shall be released forthwith. This will, however, not in appropriate cases prevent their lawful trial.