' By this Constitutional petition under Article 199 of the Constitution Manzoor Hussain and six others have challenged their conviction and sentence by a Summary Military Court for offences under section 3/4 of the Prohibition Act and section 156 (89) of the Customs Act. They have been sentenced, first three to nine months' rigorous imprisonment and various amounts of fine of rupees one thousand in the case of petitioners Nos. 2 and 3 and three thousand in the case of petitioner No, 1 or in default, they have been called upon to undergo rigorous imprisonment, three months for petitioners Nos. I and 2 months for petitioners 2 and 3. As regards the others petitioners Nos. 4 has been sentenced to six months' rigorous imprisonment and three others to four months' rigorous imprisonment each.
2. The facts of the case disclose that a raid was conducted on the premises of Commercial Gymkhana Club in Bagh-e-Jinnah, Lahore, late in the night on 27-1-78. Manzoor Hussain petitioner No, 1 who is said to be Cashier Accountant of the said club ran away from the spot. The other petitioners were arrested on the spot and it is said that from the pocket of Muhammad Shaft a bottle of Indian liquor was recoverd, from Muhammad Akbar petitioner a bottle of Jony Walker, from petitioner Sadiq a bottle of Desi liquor was recovered and so was the case with Jamil, Khalil and Ghalib. In the stock were found 15 bottles of Jony Walker and from another store a few more bottles of wine were recovered. They were charged under section 3/4 of the Prohibition Act and section 156 of the Customs Act, found guilty and sentenced accordingly.
3. The factual grounds have not been frontly challenged nor was it open to the petitioners to so challenge it in these proceedings. The legal grounds taken up are that it was an ordinary offence for which the existing law adequately provided the remedy and it was not necessary at all to have it tried by a Martial Law Court. In the case of Manzoor Hussain it has been stated that he being Cashier Accountant could not be held responsible for possession of illicit liquor found in the premises during his absence.
4. So far as the ground of necessity for trial is concerned, it has to be noted that Indian liquor, which is not imported in the country, was recovered suggesting that it was brought in the country in an unauthorised manner. The premises from which recovery was effected is registered club with restricted admission to members. The prohibition law was introduced about two months before the imposition of the Martial Law in the country and had prohibited completely and unconditionally possession and consumption of liquor by Muslims. There is a Martial Law Order which provides for the transfer of cases from ordinary Courts at any stage of the proceedings after institution and their trial by the Summary Military Court. Such a Martial Law Order has not so far been declared ultra vires. It has not been urged that it is ultra vires. The only question therefore to be determined is whether on the facts and the circumstances proceedings of this nature were appropriate ones for being transferred from one jurisdiction to another, from a plenary jurisdiction to a restricted jurisdiction, from normal criminal and civil Courts to Summary Military Court. The doctrine of necessity has been further clarified in Mr. Zulfiqar Ali Bhutto v. The State (1) and the doctrine of necessity has been advanced further to include all acts which tend to advance or promote the good of the people and all acts required to be done for orderly running of the State. Prohibition and consumption of illicit liquor had evoked such wide spread public concern that justifiably the Martial Law Authorities could for the expeditious trial of such cases by the Summary Military Courts, transfer it to jurisdiction.
4. As regards the implication of the petitioner No, 1, it was he who was present in the premises at the time of the raid and who was supposed to be present and to maintain stock and account of the commodities in store and allow it to be released for consumption. It was he who is said to have run away on the sight of the raiding party. The premises being not the property of any one but of a registered club, the persons having the direct immediate charge of the affairs can reasonably assumed to possess the requisite information and knowledge of the stocks and what was going on before him within his view and sight. In such a situation, the assumption of jurisdiction and the exercise of it suffers from no such illegality as may warrant interference in the constitutional jurisdiction of this Court. Hence the petition is dismissed.
(1) PLD 1978 SC 40