S. A. NUSRAT, J.-This judgment will dispose of Constitutional Petitions Nos. D-25, D-26, D-28, D-52 to D-56, D-57, D-68, D-77, D-84, D-85, D-91, D-128 to D-131, D-133, D-153, D-196, D-293, D-294, D-350 to D-352, D-355 and D-425, which are directed against orders awarding various sentences by Summary Military Courts for offences committed under Martial Law Regulations Nos. 3, 4, 5, 9, 10, 11, 13, 18 and 24 and M. L. Os. 3 and 22.
As details were wanting and even the impugned orders were not produced, we issued notices of the petitions to the Advocate-General without admitting the same in order to ascertain facts. The learned Advocate-General in pursuance thereto produced the record of proceedings of the Summary Military Courts and stated that he had also allowed inspection of the same to the learned counsel for the petitioners. At the close of the arguments he also furnished us with a statement giving brief summary of the proceedings along with the record which was seen by us.
2. We heard Mr. Rashid A. Akhund, Advocate on behalf of the respondent, and the Advocate- General appeared on Court notice.
3. Before proceeding further it is necessary to spell out the objects of the various Martial Law Regulations under which the impugned sentences were awarded. M. L. R. No. 3 deals with insult to the modesty of any woman. M. L. R. No. 4 deals with publication, printing and circulation or to be found in possession of any pamphlet, poster or publication or any type of literature calculated to promote or attempt to promote feeling of enmity or hatred between different provinces, classes, sects, or religious orders. M. L. R. 5 prohibits organisation, convening or attending any meeting, not being a religious congregation in an open public place or organising or taking out of any procession without prior written permission of the Martial Law Administrator concerned. M. L. R. 9 lays down that any person who attacks, resists, injures, or causes to be attacked, resisted or injured any member of the forces, whether civil or military, is liable to be punished. M. L. R. 10 deals with the offence of damaging, tampering with or interfering with working of roads, railways, aerodromes, telegraph, telephone, wireless installations or with any other Government property. M. L. R. 11 prohibits participation in any political activity, either directly or indirectly, M. L. R. 13 lays down that no person shall, by words, either spoken or written or by visible representation, or otherwise bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the Armed Forces or any member thereof. M. L. R. 18 prohibits any political party or persons from propagating in a manner prejudicial to the ideology or integrity or security of Pakistan. M. L. R. 24 lays down that, notwithstanding anything contained in any Martial Law Regulation, Martial Law Order or in any other law for the time being in force, no one shall, subject to paragraphs 3 and 4 thereof, participate in any political activity in any manner whatsoever directly or indirectly.
According to M. L. O. 3, all political activities including processions stand banned and M. L. O. 22 relates to suspension of political activities of students and student unions.
4. Mr. Rashid Akhund, learned counsel for the petitioners, challenged the validity of the aforesaid Regulations and Orders on the ground that the issuance of the same was not covered by the law of necessity. According to him, there existed normal laws occupying the field and there was no occasion for the enforcement of the impugned Regulations and Orders. It was contended that the Laws (Continuance in Force) Order, 1977 laid down that the country was to be governed in accordance with the Constitution of 1973 and even according to clause 3 of Article 2 of the Order the Article 4 of the Constitution was still preserved and the petitioners enjoyed the protection of law and were to be treated in accordance with law. According to the learned counsel the Regulations and Orders providing for punitive action were beyond the purview of the law of necessity. Lastly, concerning the merits of the case, the learned counsel complained breach of Army Rules, particularly Rule 113 which provides that at a trial by Summary Court Martial an accused person may have a- person to assist him during the trial whether by a Legal Adviser or any other person.
He contended that in all the cases punishment was awarded hurriedly without affording opportunity of defence to the accused and the trial was also not held in open Court as provided under Rule 111 of the Pakistan Army Rules.
5. It is necessary to set out the facts and circumstances under which the petitioners came to be sentenced to various terms of imprisonment including, in some cases, with punishment of stripes.
In Petitions Nos. 52, to 54 and D-56, 60, 77, 84, 129, 131 and 133, the offences were committed on 5th of January, 1978 in connection with the celebration of, what was termed as (Yom-e-Jamhuriat) by the accused persons who indulged in raising of provocative slogans and taking out of processions in violation of Martial Law Regulations 5, 9, 11 and 13. The Slogans raised by some of them were; "Namak-haramo Sharam Karo.
Marenge marjaenge Bhutto Ko Wapas Laenge.
6. The first contention requiring consideration in these petitions is as to whether the impugned Regulations and Orders, promulgated by the Chief Martial Law Administrator, are governed by the law of necessity. Mr. Rashid Akhund relied upon the judgment of the Supreme Court in Begum Nusrat Bhutto's case (PLD1977SC657) and stated that superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as enunciated in the said judgment.
There is no gainsaying that these petitions were entertained for the purpose of examining the contention raised therein on the strength of the aforesaid Supreme Court judgment. The same judgment, however, also affords answer to the contentions raised in these petitions.
7. The contention of the learned counsel that in the face of the normal laws already occupying the field there was no necessity for the issuance of any Martial Law Regulation and Orders is a too wide and general propositionto be accepted. The Supreme Court in Nusrat Bhutto's case has held that "the Chief Martial Law Administrator has validly assumed power by means of Extra Constitutional Step in the interest of State and for the welfare of the people and as such he was entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by the judicial authorities as falling within the scope of law of necessity." All what requires examination, therefore, is whether the Regulations and Orders are such legislative measures as could have been validly taken by the Chief Martial Law Administrator within the scope of his authority as spelt out by their Lordships of the Supreme Court as enumerated at p. 716 of the report.
8. We have examined the various Regulations and Orders, referred to in the earlier part of the judgment, which have been impugned in these petitions. The same deal with matters concerning law and order and suspension of political activities. Once the Martial Law is accepted as having been validly enforced such power, of necessity, is to be conceded to the Martial Law Authorities.
The Regulations and Orders in question clearly A fall within the purview of the powers exercisable by the Chief Martial Administrator as per clauses (iii) (b), (c) and (d) enumerated at p. 716 of the Judgment in Begum Nusrat Bhutto's case. In latter judgment in the case of Z. A. Bhutto v. The State (PLD 1978 SC 40) the Supreme Court was pleased to caution that there existed some misconception as to the true implication of the decision of Begum Nusrat Bhutto's case in so far as it deals with the powers of the Chief Martial Law Administrator under the doctrine of necessity. Their Lordships after enumerating the categories of various types of permissible actions which can be taken by the Chief Martial Law Administrator on the basis of doctrine of necessity, as mentioned on p. 716 of Begum Nusrat Bhwto's case, observed as under;---- "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 action 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."
Their Lordships further observed :------ "It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive 'or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. We may add that the material in question may either be provided by the authority whose action is challenged, or may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto."
And at page 50 it has been observed that :- "It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhntto's case while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."
9. The passage quoted above from the Report of the Supreme Court affords complete answer to the contention of the learned counsel. We would, therefore, hold that the impugned Martial Law Regulations and Orders have been validly promulgated by the Chief Martial Law Administrator and no exception can be taken to the same.
10. The contention of the learned counsel that the petitioners are to be dealt with in accordance with law as provided in Article 4 of the Consti--tution need not detain us because the Supreme Court in its latest pronouncement in the case of Federation of Pakistan v. United Sugar Mills Ltd. (1) has, on review of earlier judgments, held as follows :---- "In support of this part of argument, learned counsel relied on certain observations made in the case of Chaudliry Manzoor Illahi v. Punjab Government according to which the expression 'law' as used in Article 2 and Fundamental Right 1 in Chapter 1, Part II of the 1962 Constitution was not necessarily confined to statute law or positive law but also covered 'judicial principles laid down from time to time by the superior Courts and juridical norms obtaining in Pakistan.' But this wider connotation of the word 'law' was rejected later in the majority decision in F. B. A.I v. The State, wherein according to the view of the majority the expression 'law' in Article 4 of the present Constitution, which is in pari materia with Article 2 of the 1962 Constitution, means only 'positive law'. The majority' in that case relied on the dictum in the case of Asmi Mani, wherein after an elaborate discussion Hamoodur Rehman, C. J., reached the conclusion that connotation of the word `law' is restricted to positive law that is to say a formal pronouncement of the will of a competent law-give and did not include what were mere legal precepts or theories."
The Martial Law Regulations and Orders would be covered by the definition of `law' as laid down in the above judgment of the Supreme Court and since the same fall within the category of pronouncement of the will of competent law-giver the same are valid.
11. Now turning to the merits of the case Mr. Rashid Akhund mainly laid stress on his contention that the petitioners were not provided with any proper opportunity of defence inasmuch as they could not engage any counsel of their choice and in that there was violation of rule 113 of Pakistan Army Rules. Mr. Zahoorul Haque, learned Advocate-General, stated that summary of evidence in each case had been duly read out and explained to the accused who were asked to make statement and thereupon they had admitted their guilt and pleaded for mercy. He pointed out that in the nature of events the accused hardly felt the necessity of any assistance or advice in the matter nor in fact had any one of them asked for the same. He relied upon rule 132 which lays down that any irregular procedure, when no injustice was done, would not vitiate the trial. According to the Advocate---General there was spontaneity in the commission of the offences and the accused were apprehended at the spot and it was in these circumstance that they could not but admit of their guilt and plead for mercy, which was natural in the circumstances. There is also nothing on the record to show D that the petitioners had made any grievance or asked for any assistant during their trial. We are of the opinion that even otherwise, in the circumstances, the provision of rule 132 would be attracted and the trials cannot be held to be invalid on that account.
12. In support of the same contention the learned counsel also relied upon Article 10 of the Constitution. Mr. Rashid Akhund contended that this Article could not be suspended in spite of what is contained in Clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. He relied upon the judgment in the case of Ch. Manzoor Illahi v. Federation of Pakistan (PLD 1975 SC 66), wherein in was laid down that since Articles 9 and 10 are not included in , Article 233(1) of the 1973 Constitution, the State could not frame any law, even when the proclamation of emergency was in force, in contravention of these rights. It was contended that there was no Proclamation of Emergency as envisaged under Article 232, and the extra-Constitutional step of proclaiming Martial Law was itself comparable to proclamation of emergency. In this connection the learned counsel placed reliance on the observations of the Supreme Court appearing at page 721 of the Judgment in Begum Nusrat Bhutto's case which are as follows :- "The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by Clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in Clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."
The very first sentence of the passage quoted above mentions that the action taken by the Chief Martial Law Administrator was an extra-Consti--tutional step, and what follows thereafter, is in the nature of analogy only and there is no finding that the Chief Martial Law Administrator had suspended the Fundamental Rights in exercise of power under Clause (1) of Article 232 of the Constitution. On the contrary the action of the Chief Martial Law Administrator having been described as an extra-Constitutional step, only a negative conclusion is deducible from the observations of their Lordships. We are also not impressed by the argument that Article 10 of the Constitution has survived notwithstanding the provision to the contrary contained in the Laws (Continuance in Force) Order, 1977. There is a clear E finding at page 722 in Begum Nusrat Bhutto's case that the said provision suspending the right to enforce the Fundamental Rights is valid.
13. The learned counsel further contended that the plea of guilt recorded by the Summary Military Court was in fact no plea at all in the absence of any lawyer assisting the accused. Reliance was placed on the F case of Moslemuddin Slkdar v. The Chief Secretary, Government of East Pakistan (PLD 1957 Dacca 101). It was held in the said judgment that the right of assistance of counsel existed whether the accused requested for counsel or not. The said judgment arose out of a petition under Article 170 of the 1956 Consti--tution and was based on interpretation of Article 7(I) of the said Constitution, the provisions whereof are para materla with Article 10(1) of the 1973 Constitution. The judgment, therefore, is clearly distinguishable. Further reliance was also placed on Saiyad Afjal Hussain and others v. The State (AIR 1962 Raj. 216). The said judgment is also of no avail. It was based on the provisions of Article 172 of the Constitution of India which is also in the same terms a Article 19(1) of 1973 Constitution. In the absence of any constitutional safeguards the rulings based on constitutional provisions cannot be relied upon and this contention therefore also fails.
14. It was lastly contended by Mr. Rashid Akhund that the trial was not held in open Court as provided in rule 111(2) of the Army Rules. The learned Advocate-General stated that there existed no Court rooms for the trial of offences which were conducted wherever found convenient and the K object of the Rule was merely that the trial should not be held in camera which was not done in any case. He again relied upon rule 132, to point out that even if there was any infraction of the rule the trial would still be legal. The petitioners have also not placed any material before us to show that the trial, was held in camera and, therefore, we are not impressed by this contention at all.
15. The learned Advocate-General emphasised that in trial by Summary Military Court the sophistication of regular trial cannot be looked .For. It was contended by him that in the instant cases the Military Courts had to act promptly in order to control the threatened law and order situation which was created as a result of celebration of so-called 'Youme Jamhooriat' with the intention of reviving political activities of the nature as prevailed before the promulgation of Martial Law which had resulted in the taking of extra-Constitutional step by the Army. He referred to section 127 of the Army Act which lays down that the findings and sentences of Summary Military Court shall not be required to be confirmed and may be carried out forthwith. Rule 115 of the Pakistan Army Rules also provides that the sentences of Summary Court Martial shall be promulgated in the manner usual in the service at the earliest opportunity after it had been pronounced and shall be carried out without delay after promulgation. The right to prepare defence was also not available in the case of trial by Summary Military Courts, which was applicable to other types of Court Martial. The learned Advocate-General pointed out that procedure of trial by the Summary Military Courts was laid down under Martial Law Order No. 4 and for the sake of expediency section 88 of the Pakistan Army Act, which provided that at every Summary Court Martial the officer holding the trial shall alone constitute the Court, but the proceedings shall be attended throughout by two officers, or two junior Commissioned Officers, or one Officer and one Junior Commissioned Officer, had been amended. The learned Advocate General then referred to various other rules of the Army Act Rules to point f out that the procedure normally applicable to the cases of Summary Military trial had been duly followed and there was no violation .Of Army Rules. We have also noticed that in many cases punishment of lashes were remitted and even the sentences were reduced which show that before the counter--signing of sentences a further review of the cases was done by the Martial Law Authorities.
16. In the circumstances we find no fault with the proceedings of the Summary Military Courts and the conviction awarded to the petitioners and we would, therefore, dismiss the petitions.