1. ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 3rd of July 1978, by which a Constitution Petition moved by the petitioners to question the legality of their conviction and sentences passed by the Summary Military Court No. 3, Sahiwal, under Martial Law Regulations 2 and 10, has been dismissed.
2. The allegations against the petitioners were that they held a secret meeting at 8-00 p.m. On the 20th of March 1978, at the brick-kiln of petitioner No. 1 Muhammad Khan at Chichawatni, and asked certain persons by the names of Zahoor-ur-Rehman, Muhammad Sharif, Muhammad Aslam and Muhammad Afzal to interfere with the working of the Pakistan Railway, and cause damage to Government property by placing boulders and wooden logs on the Railway track, cutting the signal wires and putting the Government School in Chichawatni on fire during the 20th and 25th of March 1978. At the trial before the Summary Military Court seven witnesses were examined, including Muhammad Zahid (P. W. 1) who deposed to the effect that he was present at the time the conspiracy was hatched. Another witness by the name of Mahfooz A.I (P. W. 2) stated that petitioner No. 3 Dr. Bashir Ahmed had made an extra judicial confession before him. Mr. Saleem Akhtar Kiani, a Magistrate of the First Class at Multan, deposed before the Court that he had recorded the confessional statements of four persons, namely, Muhammad Afzal, Munir Ahmad, Muhammad Aslam and Muhammad Alam under section 164 of the Criminal Procedure Code, and that during the course of the statements it was revealed by those persons that the present petitioners were behind the conspiracy in question. Although the petitioners denied the charges against them, yet the Court found them guilty and convicted them to various terms of imprisonment, as well as to varying number of lashes to be administered in public.
3. It was contended in the High Court on behalf of the petitioners that the President of the Summary Military Court was not competent to hold the trial as he had been associated with the investigation of the case ; that witnesses Muhammad Zahid and Mahfooz A.I were not reliable persons ; that the confessional statements of four persons, who were not co-accused at the trial of the petitioners, were relied upon by the Summary Military Court in disregard of accepted principles of law bearing on this point ; and that the defence version put forward by the petitioners was more cogent and reliable, and should have been accepted in preference to the prosecu--petition evidence. All these contentions were repelled by the learned Judge, observing that there was nothing to show that the President of the Military Court had been associated with the investigation of the case, and t hat, in any case, the petitioners should have raised this objection at the proper time before the Court concerned. The learned Judge has further remarked that there was no illegality in the Magistrate deposing about the confessional statements of four other persons. On this view of the matter, the learned Judge found that there was no merit in the contentions raised on behalf of the petitioners, and that there was sufficient material before the Summary Military Court on which the conviction of the petitioners could be based.
4. The main point urged before us in support of this petition is that the conviction of the petitioners stands vitiated by the fact that inadmissible evidence, in the shape of the confessions of four outsiders, who were not under trial alongwith the petitioners, has been taken into account by the Summary Military Court, and it is not possible to say what its findings would have been if these statements had been excluded from consideration. The learned counsel submits that in such circumstances the only course open to the High Court was to quash the conviction and sentences recorded against the petitioners by the Summary Military Court. In support of this proposition he has placed reliance on Dawarka Dass Bhatia v. The State of Jammu & Kashmir (PLD 1956 SC (Ind.)
5. 948), Rehmat Elahi v. Government of West Pakistan (PLD 1965 Lah. 112) and Chief Land Commissioner, Punjab, Lahore v. Makhdoom Syed Nazar Hussain Shah and 13 others (1975 SCMR 352 On behalf of the State Mr. Riaz Ahmad, the learned Assistant Advocate-- General, Punjab, submits that the authorities relied upon by the learned counsel for the petitioners are not applicable to the facts of this case, for the simple reason that the confessions of the four outsiders were not brought on the record and were not read in evidence by the Summary Military Court for convicting the petitioners. He next submits that, in any case, section 167 of the Evidence Act clearly enjoins that even if any inadmissible evidence has been brought on the record, it should be excluded from consideration and the Court could competently act on the other evidence available in the case, and if this is done, the conviction of the petitioners would be found to be amply justified on the basis of the evidence of Muhammad Zahid (P. W. 1) and Mahfooz A.I Khan (P. W. 2). In support of his submissions Mr. Riaz Ahmed has referred us to Abdul Rahim v. Emperor (AIR 1946 P C 82), Shahidullah and others v. The State (1975 SCMR 352), Nawab Syed Baunaq A.I etc. v. Chief Settlement Commissioner and others (PLD 1965 Lah. 112) and Brig. (Retd.) F. B. All and another v.
6. The State (PLD 1975 SC 506).
7. As the Summary Military Court has not recorded any speaking order, it is not possible to say whether in reaching its findings it has made use of the statement of the Magistrate, who had recorded the confessions o four other persons who were not under trial alongwith the petitioners.
8. Mr. Riaz Ahmad, is, however, right in saying that the record shows that the confessional statements as such were not brought on the record and could not, therefore, have been taken into consideration by the Court for convicting the petitioners. In this state of the record it is not possible to accept the contention raised on behalf of the petitioners that their convictions are based on the confessional statements of four outsiders.
9. Assuming, however, that the Summary Military Court may have been influenced in some measure by the evidence of the Magistrate, who stated that four other persons had confessed before him and had implicated the present petitioners in the conspiracy, the question is whether the conviction of the petitioners can be legally maintained on the ground that there was other admissible evidence to justify the conviction.
10. It appears to us that the observations of the learned Judges of the Indian Supreme Court are not attracted in the present case, as they were dealing with the question of the subjective satisfaction of the detaining authority; and they observed that the Court could not substitute its own objective standards in such matters. Such is not the case before us. We are dealing with a conviction recorded in a criminal case on the basis of certain evidence brought on the record by the prosecution as well as the defence. Even though the Summary Military Court has not recorded a speaking order,' yet it is clear that its findings are the result of the evidence produced before it and considered by it in the presence of the contending parties. In such a case the observations of the Privy Council in the case of Abdul Rahim would appear to be applicable, namely, where inadmissible evidence has been admitted, the appellate Court may, after excluding such evidence, maintain a conviction, provided the admissible evidence remaining in the field is in the opinion of the Court sufficient clearly to establish the guilt of the accused. In making these observations their Lordships of the Privy Council relied upon section 167 of the Evidence Act. This view was followed by the High Court of East Pakistan in the second case mentioned by Mr. Riaz Ahmad.
11. PLD 1975 SC 506), it was held by this Court: "There can be no doubt that if a Tribunal or a Court acts wholly without jurisdiction, its action would be a nullity, but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction. If it is possible to separate what has been done with jurisdiction from that which has been done without jurisdiction without any prejudice to anyone then what is done with jurisdiction cannot be invalidated or declared null and void, at least, in the writ jurisdiction."
12. These observations were made after reaching the conclusion that the Military Court, which had tried F. B. A.I and others, did not have jurisdiction to try one of the charges framed by it against the accused, while it had jurisdiction to try the other charge. The Court had imposed one single punishment on both the charges, but the Supreme Court refused to interfere with the punishment, as it was found to be permissible in law, although there was a possibility that the quantum of sentence might have been influenced by the fact that the accused had been found guilty on the other charge also which was not within the jurisdiction of the Military Court. The decision in this case lends support to the submission made by the learned Assistant Advocate-General that if the conviction recorded by the Summary Military Court against the petitioners, is sustainable on the basis of the other evidence present on the record, then the High Court, acting in the exercise of its writ jurisdiction could not have interfered with it.
13. We find that even if the evidence of the Magistrate, who had recorded the confessions of four outsiders implicating the present petitioners, is excluded, there is sufficient evidence on the record to sustain the conviction of the petitioners under the Martial Law Regulations concerned. We have already stated that Muhammad Zahid (P. W. 1) deposed from personal knowledge as to the details of the conspiracy, and Mahfooz Ahmed Khan (P. W. 2) proved the extra judicial confession made before him by Dr. Bashir Ahmed, petitioner No. 3. We find that it was this witness, who produced this petitioner before the Investigating Officer. The evidence of these two witnesses would amply justify the conviction recorded by the Summary Military Court against the petitioners. s. A. H.