AGHA ALI HYDER, ACTG. C. J.-The circumstances in which this petition has been filed, very succinctly stated, are as under.
2. On the 20th of January 1978 at about 9-45 a.m. Fokker PK-543 with 42 persons on board, including the members of the crew, took off from Sukkur en route to Karachi. Within moments of its being air-borne, there was a pendemonium in the cabin. Captain Khaldoom Ghani, the pilot, turned back to see what it was about. He heard a shot fired, and the petitioner demanding that the plane be diverted to India. The pilot found that the petitioner had planted a dynamite on the front door, and some wires attached to the dynamite were connected inside his bag, slung in his shoulder. According to the First Information Report, the pilot set the course of the plane, as directed, but, after a while, pleading insufficiency of petrol, prevailed upon the petitioner to land the plane within the country.
The petitioner, though reluctantly, gave in, but kept a watchful eye on the crew and the passengers.
When the plane eventually landed at Karachi, the petitioner asked the pilot to communicate his demand to the Authorities. The demand made was for the payment of ten millions in local currency, and one million dollars, otherwise the plane, with all its passengers was to be blown off.
Parleys started with Air Martial Nur Khan, the Chairman of the P. I. A. However, during the negotiations, some of the passengers, who had been detained as hostages, were freed, and allowed to move out. At about 11-45 p.m. Air Marshal Nur Khan again turned up for further negotiations, and was permitted to come inside the plane. Seeing that the demands were not being honoured, this time the petitioner adopted a menacing posture, and would not allow Air Marshal Nur Khan to go out. Sensing peril to his life, Air Marshal Nur Khan caught the hands of the petitioner, in which he was holding a revolver, and Captain Khaldoom Ghani pounced upon from the rear. During the scuffle, the petitioner fired a shot at the Air Marshal, but soon he was overpowered and disarmed. The wire was also pulled from the bag. The petitioner was taken in custody.
3. In the morning at about 9-00 a.m. Captain Khaldoom Ghani lodged the First Information Report of the incident with the Deputy Director, Crime Circle, and the case came to be registered against the petitioner for offence under sections 307, 347 a d 387, P. P. C.
4. On the 25th of January 1978, the Chief Martial Law Administrator promulgated Martial Law Regulation No. 29, which made hijacking an offence. It reads as under; "(1) This Martial Law Regulation shall come into force at once and shall be deemed to have taken effect on the fifth day of July 1977.
(2) Whoever commits or attempts to commit or conspires to commit the offence of hijacking or abets the commission thereof, shall be punished with death or such lesser punishment or combination of punishments as are provided for in Martial Law Order No. 5.
Explanation.-The expression `hijacking' shall mean taking over the control of any aircraft on ground, or in the air, by use of force, or show of force, or threat to use force, or threat to cause injury, or by causing injury to the aircraft, or any passenger or any member of the crew of the aircraft, or any person connected with the security or main--tenance of the aircraft, on ground or in the air."
5. A charge-sheet was later presented on 2-2-1978, and the trial was set for 6-2-1978 before the Special Military Court No. 10 at Karachi for offence referred to earlier, with the addition of an offence under Martial Law Regulation No. 29. However, as it transpired during the investigation, that the petitioner was a deserter from the Army, he was produced before the Summary Military Court at Quetta, where he was tried for offences under sections 37 (h) and 45 (a) of the Pakistan Army Act, and sentenced to undergo R. I. For one year. He was also ordered to be dismissed from service.
Thereafter he was brought back to Karachi, and on the 3rd of March 1978, the trial only for an offence under M. L. R. 29 started before the Special Military Court. The trial lasted for two days and the petitioner was found guilty. After due confirmation he was sentenced to be hanged by the neck till he be dead, culminating in this petition.
6. As questions of considerable magnitude, including the retroactive application of Martial Law Regulation No. 29 were involved, we thought it in the fitness of things to associate some senior members of the Bar in formulating our opinions. As a result Messrs A.I Ahmed Fazeel, Khalid M.
Ishaq, Muhammad A.I Sayeed, Naseem Farooqui and Muhammad Hayat Junejo were called upon to assist the Court as amici curiae, and we had the benefit of their addresses.
7. It is beyond the pale of any controversy that the offence of hijacking was brought on the statute book, for the first time, on the 25th of January 1978, in the shape of Martial Law Regulation No. 29.
This was overdue, as Pakistan was a signatory to the Convention for the suppression of unlawful seizure of Aircraft (called Hague Convention), which was signed by over a hundred countries of the world on the 16th of December 1970, and also of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (called Montreal Convention, signed on the 23rd of September 1971). Pakistan had ratified the former on the 28th of November 1973, and the latter on the 21th of January 1974. The Hague Convention had sixteen articles in all. Article 1 thereof reads as under;-- Any person commits an offence if he unlawfully and intentionally----
(a) performs an act of violence against a person on board Aircraft in flight, if that is likely to endanger the safety of that aircraft ;
(b) destroys an aircraft in service or causes danger to such an aircraft which renders it incapable of flight and which is likely to endanger its safety in flight ;
(c) places or causes to be placed on an aircraft in service by means whatsoever any device or substance, which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, of to cause damage to it, which is likely to endanger its safety in flight, or
(d) destroys or damages aircraft navigation facilities or interferes with their operation ; if any such act is likely to endanger the safety of aircraft in flight ; and
(e) communicates an information which is known to be false, thereby endangering the aircraft."
The second article dealt with attempts and accomplices, and Article 3 stipulated that each contracting State undertakes to make the offence men--tioned in Article 1, punishable with severe penalties.
8. These conventions were called, because aerial hijacking or piracy after 1961, had no more remained an occasional romantic adventure, but a peril staring in the face of every aviation Company, and their passengers. Searching of persons and baggage, electronic devices for detection, like magnometers before embarkation, the employment of security guards in the course of flight, arming the flight crew, locking the cockpit door, fencing and guarding embarkation gates, special code for pilots to signal ground control, depressurising the cabin, where the hijacker could be manoeuvred, bullet proof cockpit areas, or stationing police dogs in the cabins and other devices had been tried and found wanting. Later events disclosed that there was some flaw or the other in them, especially if the device used was other than fire-arm e.g. Plastic toy gun, or vials of nitroglycerine. So, to ward off the peril, deterrence could be the only approach. The measure was therefore, due and taken, though tardily, after a macabre and harrowing experience, and was to be effective from an antecedent date.
9. Given, that the Regulation is retrospective in operation, the question is, whether the same can pass muster as a valid piece of legislation, and effect is to be given to the same? I am advisedly taking up the consideration of this contention, as with the exception of Mr. A.I Ahmad Fazeel, the other amici curiae, either took exception to its validity itself, or, to the sentence awarded, primarily because of the retrospective effect given to the same.
10. A retroactive law is one, which provides that, as at a past date, the law shall be taken to have been, that which was not. A law creating a new offence, or, punishing acts not punishable when committed is ex post facto as to acts committed before its passage. Ex post facto means literally "from what is done afterwards". It is a retroactive law that belongs to a category of criminal law. In the words of R. K. Gooch, in the Manual of Government in the United States, page 539, it "establishes conditions that are more unfavourable to the accused person than they were at the time the alleged crime was committed". It exposes a transgressor to a penal Statute, and being subjected by a subsequent legislation to any penalty, liability, or consequence that was not attached to the transgression when it accrued, or, because innocent acts can be rendered criminal after the event, or, offences can be aggravated, making it harsh, or, oppressive by altering the situation to the disadvantage of an offender, and as a result generally looked with disfavour. In the words of C. K.
Allen, author of "Law in the Making" at page 383, "there is, in all civilized States, the strongest prejudice against retrospective, or, ex post facto legislation, since it is in the words of Willis, J. (in Philips v. Eyre (6QB1)), "prima facie of questionable policy, and contrary to the general principle, that legislation, by which the conduct of mankind is to be dealt with future acts, and ought not to change the character of past transactions carried on upon the faith of the existing law." In America ex post facto legislation is specifically forbidden by the Constitution. It is therefore, easy to understand the tenor of judgments, and the observation of the authors from there, on the subject.
However, as our legal jurisprudence is based on the legal pattern of Britain and the British Commonwealth, it will be in the fitness of things to see as to what is the state of law on the subject there.
11. In Director of Public Prosecutions v. A. E. Lamb and another ((1941)2AER499). The four defendants were charged with certain currency offences committed between September 3, 1939 to May 11, 1940, and pleaded guilty. The information laid was in August 1940. The Regulation in force at the time of the commission of the offences limited the penalty for each offence to a fine of --100, or, punishment for a term not exceeding three months, or both. On June 11, 1940, an order in Council came in force, altering the law from that date, providing for a further alternative penalty for a maximum fine equal to three times the value of the currency in question. The terms of this order were, where any person is convicted of an offence against "those regulations, "the maximum fine which may be imposed on him shall be . . . . . a fine equal to three times . The value of the security . . . . . . . ." Humphrey, J., observed, "to my mind, it was totally immaterial for him (the Magistrate) to consider, what would have been the result, and what would have been his powers, if this matter had come before him six months earlier than it did. He had nothing to do with it. He was sitting on the 4th of September, and all that he was concerned with, was his powers on that date". Tucker, J., observed, ". . . . . . Although I do not altogether like the idea of punishments being increased after the offences have been completed, nonetheless, if the language is clear and if that is the result, I think that it is impossible to escape from the consequences of the language which has been used".
Cassels, J., had the following to say : "If the language is plain and not ambiguous, the Act may well have a retrospective effect". To the same effect is the decision of their Lordships in Buckman v.
Button ((1943)3AELR82).
12. In Abeysekra v. Jayatilake ((1932)AC260), their Lordships of the Privy Council, while approving the judgment of the Supreme Court of Ceylon, while dealing with the retrospective nature of an Act, though of the nature of indemnity and relief in respect of penalties incurred, had no hesitation in saying, that the Legislature had certainly the `power to prevent, alter, or, reverse the consequences of their decrees, though "not Jove himself upon the past hath power".
13. The King v. Kldrnan (20 C L R 425) is a case from the High Court of Australia, and will be in point.
Giffith, C. J., opined in that case, that in the case of plenary power, such as that of the United Kingdom, no question of the validity of such a law would arise (p. 432 of the Report). Higgins, J., observed, "that he was not aware of any instance in which a Legislature created by the British Commonwealth had been held to have over-stepped its power, by making legislation retroactive . . . . . . . This is the British system, whether it be right or wrong. It is not the system of French Code . . . . . . . . The British Parliament by Acts of attainer, or, otherwise, has made crimes c:1 acts after .The acts were committed and men have been executed for the crime, and whatever might be the excellence of the utilitarian theory of punishment, the Federal Government is not bound to adopt that theory. Parliament may prefer to follow St. Paul. St. Thomas Aquines and many others, instead of Bentham and Mill". In Miller v. Raith (4), it was held that any act made an offence, by an Act, became unlawful from the anterior date in exactly the same way as if the Act had been passed on that date.
14. The learned Attorney-General has cited a number of cases from our Courts in which the same view has consistently prevailed. In Nawab Khambu Khan and others v. The Emperor (AIR 1943 Sind 39), observation was that in matters of criminal law, retrospective effect could be given only by an Act of Legislature, a validating Act. In the Punjab Province v. Malik Khizir Hayat Khan Tiwana (PLD 1956 FC 200), the respondent had his suit decreed by the High Court of Judicature at Lahore on the Original Side, for a considerable amount towards compensation. It was after the pronouncement of judgment that there was the amendment of the Canal and Drainage Act by the Constituent Assembly. Because of the amendment, it was the Government that had to be compensated by the plaintiff. Their Lordships of the Federal Court held that, although the legislation might be harsh, or, unreasonable, or vindictive, yet it was not for the Court to question the motive, or, the policy, but to ascertain the intention and carry it out, irrespective of the consequences. In Messrs Noorani Cotton Corporation and others v. The Sales Tax Officers (PLD1965SC161), it was held that, as long as the power to enact laws remained in force, it was power to make laws for all times, past as well as future, and that even if the power to legislate existed for a day, it could have made laws for all times. In Mir Ahmad Nawaz Khan Bughti v. Superintendent of Jail, Lyalipur and others (PLD1966SC357). The question was kept open, but it was remarked that the distinction, which the learned counsel drew between retrospective legislation, which affected rights and liabilities of persons, and that which did not, was without foundation. In that event, there would be no retro-- spective legislation.
15. However, in Haji Ghulam Zamir and others v. A. B. Khan and others (PLD 1965 Dacca 156), though finding no fault with the proposition that the Legislature was competent to legislate prospectively as well as retrospectively, it was ruled that the Ordinance, being not contemporaneous law, was an attempt to nullify Article 2 of the Constitution of 1962 (which is in pari materia with Article 4 of our Constitution). As the said article was not a mere rope of stands, but a protection In praesenti, therefore the same was void. This view was followed in the later case of Haji Ghulam Sabir v. Pan Allotment Committee and another (P .L D 1967 Dacca 607). The Supreme Court in Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner and another (PLD 1968 SC 101), took notice of the Dacca cases and observed: "To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect is respect of all matters that are specified in Article 2. We do not conceive that the article was intended to produce so wide an effect in relation to the well-established practice of retrospective, or, retroactive legislation. It is difficult to construe Article 2, as conveying Fundamental Right in every citizen of Pakistan, and every person for the time being within Pakistan, against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interest. In Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623 ), the same view was reiterated, though it was emphasised that, for the deprivation of vested right, the words had to be express, or, the intendment had to be explicit.
16. 1t was, however, strenuously argued by Mr. Khalid Ishaq and Mr. Naseem Farooqui and also by Mr. Hashmat A.I Habib, that Article 12 of the Constitution still remains in the field, and the same is unaffected by the Proclamation of Emergency, and the President's Order, suspending the Fundamental Rights. The material portion of Article 12 reads as under; "l2. 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 at the time the offence was committed."
Support was sought for the proposition from the case of Mrs. Habiba Jilani v. The Federation of Pakistan (PLD 1974 Lah. 153), wherein it was observed that, in spite of the Proclamation of Emergency, the Fundamental Rights are not suspended, but only the right to move the Court for enforcement of the rights remains suspended. Therefore, when it was prayed that the detention should be declared to be illegal for non-compliance with the provisions of Article 10, the petitioner was not seeking the enforcement of a Fundamental Right, but simply asking the High Court to perform its constitutional duty under Article 199 (1) (b) (i) to satisfy itself, whether the detenu is being held in custody in accordance with law. This view came to be followed in another case from the same High Court in Major General (Retd.) Mian Ghulam Jilani v. The Federal Government (PLD 1975 Lah. 65). Reference was made to Article 233 (2) of the Constitution, which did not include Article 12. The President, according to them, could make an order of kind, which could be made only under clause (2) of Article 233 of the Constitution, and anything in excess thereof would be in conflict with the same, and thus void. The reply of Mr. S. Shareefuddin Pirzada was that the decision in the Lahore case was not in accordance with the rules laid down in Abdul Baqi Baloch v.
Government of Pakistan (PLD1968SC313), wherein it was observed that, as long as the Fundamental Rights remained suspended, clause (2) of Article 6 of the Constitution of 1962 (which is in pari materia with Article 8 (2) of the Constitution) could not be agitated, and todeclare the Ordinance in question invalid would be tantamount to enforcing the Fundamental Rights. Reference was also made to the case of Miss Asma Jilani v. The Government of the Punjab and another (PLD1972SC139), and some other cases, out of which mention might be made of the case of Begum Nusrat Bhutto v.
Chief of the Army Stuff and Federation of Pakistan (PLD 1977 SC 657). The Fundamental Rights remaining suspended, invocation of Article 12, according to him, would be totally irrelevant. He also maintained that Article 233 (2) of the Constitution was not the only source of the President's power during an emergency and allusion to the same in the judgment of Begum Nusrat Bhutto was by a mere way of analogy. At any rate, according to him, clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, being C. M. L. A. Order No. 1 of 1977, reigned supreme, suspending all the Fundamental Rights conferred by Chapter 1, Part II of the Constitution, and alongwith it, all proceedings in any Court for the enforcement of the same. This order being an extra-constitutional instrument was, therefore, beyond challenge and above reproach. He further contended that it had also been held in the case of Begum Nusrat Bhutto, that the Chief Martial Law Administrator had the power to amend the Constitution, and, in that case, the amendment could be prospective as well as retrospective. It is not necessary to expatiate, at My length, on this issue, as we had an occasion to deal with certain aspects of these submissions in Writ Petition No. D-52. Rustam All and others v. Martial Law Administrator, Zone `C' and others (PLD 1978 Kar. 736), in which we have held, only a week earlier, that, the enforcement of the Fundamental Rights remain suspended. That will also be the position in regard to Article 10 of the Constitution, which had been invoked in reference to certain contentions whichfollow later.
17. However, Article 4 of the Constitution has not been affected by the Proclamation of Emergency, according to which, the protection of law, and to be treated in accordance with law, is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. Law, as held in Brig. (Recd.) F. B. A.I and another v. The State (PLD1975SC506), in its generally accepted connotation, means positive law, that is to say, a pronouncement of the Will of the competent law-giver. It was observed : "There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Courts cannot strike down a law on any such higher ethical notions, nor can Courts act on the basis of philosophical concepts of law, as pointed out by me in the case of Miss Asma Jilani v. The Government of the Punjab and another. In Federation of Pakistan v. United Sugar Mills Ltd., Karachi (PLD1977SC397), it was ruled that the connotation of the word "law" was restricted to positive law, that is to say, a formal pronouncement of the Will of the competent law-giver and did not include what were the legal precepts or theories; even judicial pronouncement. It will thus be seen that Article 4 of the Constitution will be like a School-child's holiday with home work tagged on to it. It has to yield to President's Order No. 1, and also Martial 'Law Regulation No. 29. I am, therefore, clearly of the opinion that the retrospection given to Martial Law Regulation 29 will prevail, and due effect has got to be given to the same.
18. It was contended by Mr. Hashmat A.I Habib, and also by Mr. Khalid M. Ishaque, and Mr. Naseem Farooqui, that the present Govern--ment had acquired legitimacy on the basis of the doctrine of necessity, and' according to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan, the avowed object of the present Government was holding of fresh elections, so that a freely elected Government might once more be installed in office. It had, therefore, no business to fritter its energies in other direction, and thus lose sight of the goal. The simple answer to this question is to be found in the said judgment itself, where the true legal position emerging in the extra-constitutional change over had been dealt with, specially the three categories of the various types of permitted actions, that is, 3 (a) to 3 (d) which had better be reproduced;---- "(iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra- constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consis--tently recognized by judicial authorities as falling within the scope of the law of necessity, namely
(a) All acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it ;
(b) All acts which tend to advance or promote the good of the people ;
(c) All acts required to be done for the ordinary orderly running of the State ; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the Proclamation of Martial Law, namely, restortation of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution."
These came to be amplified in Mr. Zulfikar A.I Bhutto v. The State (PLD1978SC40); "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word "necessity" has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning."
19. It is to be seen that the Government of Pakistan was already a signatory to the two conventions referred to earlier, and therefore, stood committed to take steps to implement the aims and objects of the conventions which made hijacking or an attempt thereof an offence. The pledge had to be redeemed. Otherwise too, it will be polyannish to suggest that a threat of the nature, which had raised its ugly head, had better be totally ignored. Planes are costly items, entailing considerable foreign exchange. What is more, in every flight precious lives are involved, and the Government could not coddle itself into the fancy that the worst was over. Unless one chooses to be myopic, adequate measures have to be taken for the safety of the passengers, because hijacking now unfortunately has become almost the order of the day. Apprehensions have to be allayed the they will not be at the mercy of brigands and freebooters. If adequate measures are not taken, a tragedy like this may be too deep for tears. Under the circumstances, it cannot be said that the promulgation of the Regulation was open to any exception, or, that the Chief Martial Law Administrator was not competent to promulgate the same.
20. It was next contended by Mr. Hashmat A.I Habib, learned counsel for the petitioner, that the trial was vitiated, because of the breach of rule 83 of the Pakistan Army Rules. Rule 83 reads as under; "83. Requirements for appearance of counsel.-(1) An accused person intending to be represented by counsel shall give to his Commanding Officer or to the convening officer the earliest, practicable notice of such intention and, if no such notice has been given, the Court may, if they think fit, on the application of the prosecutor, adjourn to enable him to obtain counsel on behalf of the prosecutor at the trial.
(2) If the convening officer so directs, counsel may appear on behalf of the prosecutor, but in that case, unless the notice required by sub-rule (1) has been given by the accused, notice of the direction for counsel to appear shall be given to the accused at such time (not in any case less than seven days) before the trial, as would, in the opinion of the Court, have enabled the accused to obtain counsel to assist him at the trial.
(3) The counsel who appears before a Court Martial on behalf of the prosecutor or accused, shall have the same right as the prosecutor or accused for whom he appears, to call, and orally examine, cross---examine and re-examine witnesses, to make an objection or statement, to address the Court, to put in any plea, and to inspect the proceedings, and shall have the right otherwise to act in the course of the trial in the place of the person on whose behalf he appears, and he shall comply with these rules as if he were that person and in such case that person shall not have the right himself to do any of the above matters except as regards the statement allowed by sub-rule (2) (ii) (a) of rule 47 and sub-rule (ii) (a) of rule 48 or except so far as the Court permit him so to do.
(4) When counsel appears on behalf of the prosecutor, if called as a witness, may be examined, cross-examined and re-examined as any other witness and classes (iv) and (v) of rule 46 shall not apply."
Sub-rule (2) itself leaves no manner of doubt, that the direction of the Convening Officer is a condition precedent for the appearance of a defence counsel. Rule 82, however, places certain further restrictions. It reads as under; "82. Counsel allowed in certain General and District Courts 'Martial.----(1) Subject to these rules, counsel shall be allowed to appear on behalf of the prosecutor and the accused at a General or District Court Martial if the Commander-in. Chief or the Convening Officer declares that it is expedient to allow the appearance of counsel threat, and such declaration may be made as regards all General and District Courts Martial held in any particular place, or as regards any particular General or District Court Martial, and may be made subject to such reservation as to cases on active service, or otherwise, as seems expedient."
21. The invocation of the rules is hardly called for. Mr. Hashmat A.I Habib and Mr. Abdur Rauf Kasuri had jointly filed their powers. It is not denied and there is no room for any denial, that the statements of the prosecution witnesses and all the material documents had been banded over to Mr. Hashmat A.I Habib on 29-1-1978, when the trial was set for 6-2-1978. However, in-between, it transpired that the petitioner was a deserter from the army, and he was to be arraigned for a trial under the Pakistan Army Act. The papers, therefore, were taken away from the learned counsel, in case they were required at Quetta, where the trial was to be held. Mr. Hashmat A.I Habib, pursuant to the notice of the Special Military Court, appeared on 4-2-1978, and in an application expressed his thanks to the Court "for the co-operation which has enabled us to assist this Houourable Court for the administration of justice, and we could interview our client inside the jail premises-----".
There was a further application raising a bar of jurisdiction for proceeding with the trial on the ground of the retrospective nature of the Regulation. The learned counsel again appeared before the Court on 2-3-1978, and presented another application, inter alia, saying that "as the undersigned could not get any instructions from the above-mentioned former client, neither he has been engaged for a fresh trial, therefore, as per the canons of profession, the undersigned is not in a petition to assist the Honourable Court as defence counsel for the above-mentioned accused, unless he is engaged for the said purpose". It is, therefore, obvious that Mr. Hashmat A.I Habib, who presumably was assisted by Mr. Abdur Rauf Kasuri, had unequivocally withdrawn himself from the case. It would also appear that, in-between, a defending officer by the name of Major Muhammad Siddiq had been appointed by the authorities. On 3-3-1978, there is an application by the petitioner himself, and it is not denied, that the petitioner declined to avail the services of the defending officer and insisted on a lawyer of his own choice being appointed at the State expense. This application came to be rejected on the ground that there was no such provision under the Pakistan Army Act and Rules, and instead a defending officer had been provided. The petitioner, however, remained adamant, and preferred to cross-examine some of the witnesses himself. It, therefore, does not lie in the mouth of the petitioner to make any grievance on that score. Nor there was any unseemly hurry involved in the trial at all.
22. It was urged by Mr. Hashmat A.I Habib, though very faintly, that the trial of the petitioner took place in spite of the fact that he had been referred to a psychiatrist to check up the soundness of his mind. I am afraid, the facts are altogether different. He was referred to Dr. Haroon Ahmad before the trial and further observation was requested. The purpose may have been to know his sub- conscious thinking. He did not appear to the Presiding Officer to be of unsound mind, and there was no order from him to investigate into the matter, which is the requirement of section 130 of the Pakistan Army Act. There was, on the other band, a fitness certificate from the Director of Civil Prison and the Prison Hospital, that the mental faculties of the petitioner were unaffected, and he was fit to face the trial. E The learned counsel himself was in touch with him right from the earliest stages, and, though there are many applications from him to the Court, yet not the faintest suggestion of that sort. On the other hand, the alertness shown by the petitioner while on board the plane and during the protracted parleys and thereafter; the various applications and letters written by him to the authorities in his own hand, before and during the trial, and his cross--examination of some of the witnesses speak otherwise. The contention, therefore, is totally unsustainable and stands repelled.
23. Mr. Hashmat A.I Habib also contended that the prosecution had failed to examine Air Marshal Nur Khan and the Investigating Officer, and, because of these solecisms, the trial was vitiated. As for the first contention, the fact remains, that the Air Marshal had received injuries, and otherwise, too, he had appeared on the scene very much later. All that he had done was to negotiate the demand and arrange the release of the petitioner. There were as many as eight witnesses examined, who had witnessed the happenings for themselves. Besides, the trial was only for the offence of hijacking, and not also for the attempted murder of the Air Marshal. The earlier charge- sheet had been withdrawn altogether. However, he and the other prosecution witnesses, who were given up, were duly tendered for cross-examination, though the offer was not availed of. The Deputy Director, who had recorded the First Information Report, was examined, but not the Investigating Officer, who had seized the incriminating articles, and recorded the statements of the witnesses. True that the examination of the Investigating Officer is insisted on in trials, but the principle underlying', is to find out as to when he hard made enquiries from the witnesses how and when their names transpired to him, and specially to prove any omission and contradiction in the statements of the witnesses. It was not even remotely suggested that there were any omissions and contradictions, to be proved from any of the witnesses. There was also no suggestion here or, earlier that the witnesses were other than the passengers. There could be no question about the identity of the pilot. Even there is a list or passengers for all the flights in every aviation Company. It is nobody's case that any substitutions of names were resorted to. And, in the circumstances of the case, the number of witnesses examined by the prosecu--petition was enough to drive the guilt home against the petitioner. So, there is no prejudice, and nothing will turn on this aspect of the matter either.
24. Mr. Hashmat A.I Habib has referred to the case of R. v. Thames Magistrates' Court. Ex parte Polemis ((1974) 2 A E L R 1219), and I might advert to the same. The applicant therein, a Greek and with just a nodding acquaintance with the English language, with his vessel arrived at a berth in the London Docks on the 1st of July 1973. The berth was clean without any trace of any oil over the next seven, or, eight days. On the 9th of July, a large patch appeared close to the vessel. Analyst's reports were obtained by the authorities on sample of the oil and of the oil in the vessel bunkers. At 10-30 a.m. On the 11th July, a summon was served on the applicant, charging that he was the master of a vessel, from which oil or mixture containing oil had been discharged into navigable waters, attracting the mischief of the Prevention of Oil Pollution Act, 1.971. The applicant's vessel was due to leave at 9-00 p.m. On the 11th of July and the summon was returnable at the Magistrate's Court at 2-00 p.m. The owner of the vessel obtained the services of solicitors, and an attempt was made to obtain the sample of the oil, and also to find 'eye-witnesses to obtain their evidence. The matter came up before a Bench of lay Justices at 2-30 p.m,, and an application for adjournment was moved. The matter, however, was taken up the same day, though before another Magistrate, who heard the matter and convicted the applicant, fining him -- 5,000. It was on these facts that Lord Widgery, C. J., observed that justice must not only be done, but manifestly be seen to be done, and it was not sufficient to say, "well, even if the case had been properly conducted, the result would have been the same", and quashed the impugned order.
25. Mr. Muhammad Hayat Junejo referred to the case of Khadim v. The Crown (PLD 1954 Lah. 69).
There a counsel at the expense of the State was appointed in a trial for murder before the Sessions Judge-which is a requirement of law, but on the very day of trial. Patently adequate instruction and preparation was lacking. It was in these circumstances that it was said that this was not a kind of legal assistance contemplated, and therefore there was a clear breach of section 340 of the Criminal Procedure Code and the High Court Rules. Mr. Khalid M. Ishaq cited the case of Laiq Ahmad v. The D. M., Karachi and another (PLD 1958 Kar. 92). In the precedent case, Article 7 of the then Constitution was found to have been contravened as insufficient and inadequate chance of defence was given. He also cited the case of Imranullah v. The Crown (PLD 1954 FC 123). There the Court had dismissed an appeal while the evidence of some of the witnesses still remained to be read and the argument bad not been made at all. All these cases will, therefore, be distinguishable.
The learned Attorney-General has, however, referred me to two cases from English Jurisdiction. In R. v. Secretary of State for War. Ex Parte Martyn ((1949) 1 All E L R 242), where Lord Goddard, C. J., had the following to say;-- "Once it is conceded, as it has been in this case, that he was a soldier, a Court Martial had jurisdiction to try. If the Court Martial, in the present case, has not observed proper rules or procedure, that is a matter for the convening Officer, and, if necessary, the Judge Advocate--- General to deal with but it is not a matter for this Court, which can only interfere with Military Courts and matters of Military Law, in so far as the civil rights of a soldier or other persons with whom they deal, may be affected. This application really amounts to asking us to decide that all members of the Court Martial were wrong in holding that they had been convened in accordance with the rules or procedure, but that is purely a matter of Military Law and procedure, and not for us to interfere."
26. In R. v. Jennings ((1956) 3 All E L R 429), it was held that section 21 in question was a procedural section. Consequently, in spite of the fact, that the procedure provided for that section was not carried out in this case, a Court Martial was entitled to convict appellant in respect of an offence of what he was guilty. In F. B. All v. The State (PLD1975SC506), it was observed by their Lordships that if the Court Martial has tried a particular case with jurisdiction, then the ordinary Courts of Superior Jurisdiction will not interfere in exercise of their power of judicial review merely on the ground that some rule, or, prejudice has not been followed. The only ground on which inter--ference could take place was that the proceedings were mala fide coram non judice, or, without jurisdiction. Rule 132 of the Pakistan Army Act Rules also is to the effect that "proceedings will not become invalid only because of certain irregular procedure in the conduct of the case, unless it appears that any injustice has been done to the offender but nothing in this rule shall relieve an Officer of any responsibility for any wilful, or, negligent disregard of this rule".
27. The trial held was by a competent Court created under Martial Law Order No. 4 promulgated by the Chief Martial Law Administrator. No conceivable excess of jurisdiction, or, mala fide being discernible, there is nooccasion to look askance at the same. As a result, the petition is liable to dismissed, and I will dismiss it accordingly. However, there is something to be said before we part with the case. True that the petitioner had been the author of a diabolical act: Lives of 42 men on board the plane had been put to real jeopardy, and the plane could be blown to pieces. True also that such a heinous act is wont to create a scare and sense of insecurity in the public. It goes without saying that the passengers in this ordeal would have suffered such an indescribable mental anguish for hours, with their lives hanging in the balance. The fact, however, remains that, except for the injury to Air Marshal Nur Khan, the disaster had been averted. Even the passengers had been released at intervals in-between. Under the circumstances, the sentence of supreme penalty under a retroactive law, to m mind, may be a matter of consideration on the part of the Government. I may be that the wayward and misguided man, that the petitioner is, on the instinct of self-preservation, might have desisted from his nefarious act, he knew for well, that his neck would be in the noose. Even Satan was no condemned to perdition, and eternal fire of hell, without a flagrant disobedi--ence of divine command, in other words, without being forewarned.
28. In the end I would like to thank Mr. S. Shareefuddin Pirzada, Mr. Shah Jamil Alam, and Mr. Zahoorul Haq, the amicl curiae, and Mr. Hashmat A.I Habib for the valuable assistance rendered to us.
S. A. NUSRAT, J.-I agree.