A case was registered against the petitioner, Abdul Salam, Patwari, Koth Loharan Circle, Police Station, Head Marala, District Sialkot under section 5 of Act 11 of 1947 and M. L. O. No. 7 at the said Police Station on 24-1-1978. The F. I. R. Was lodged by Maj. Ameer Khusro Taholi - of Martial Law Headquarter, Sialkot. According to the F. I. R., one Muhammad Masood of Koth Loharan submitted an application to the Martial Law Headquarter, Sialkot that the petitioner was demanding Rs. 500 - as illegal gratification for effecting mutation in his favour. Maj. Arneer Khusro was authorised by the Martial Law Headquarters to conduct raid on the petitioner. Accordingly he signed three currency notes of rupees 100 each and four of rupees fifty each, whose particulars are given in the F. I. R. And gave them to Muhammad Masood to be passed on to the petitioner.
2. It is stated in the F.
1. R. That the Major thereafter accompanied .Muhammad Masood to Patwarkhana. Muhammad Masood went the inside the Patwarkhana and after giving the aforesaid amount to the petitioner he gave a signal to the Major, who was standing outside that place. The Major at this entered the Patwarkhana and searched the person of the petitioner. He found the aforesaid currency notes, except a currency note of rupees fifty, underneath the seat cushion of the petitioner. He recovered all the currency notes, duly signed by him and took them into possession.
The said currency note of rupees fifty was found from the person of Muhammad Shafi of Kotil Loharan, who was sitting along with the petitioner.
3. It has been contended by the learned counsel for the petitioner that Maj. Ameer Khusro, who conducted the raid, did not hear the talk between the petitioner and Muhammad Masood at the time when the alleged tainted money was passed on; Muhammad Masood had enmity with the petitioner as the allotment of land held by his father had been cancelled at the instance of the petitioner. The aforesaid amount, according to the learned counsel, was paid to the petitioner as fee for various certified copies of the revenue record to be supplied to Muhammad Masood.
According to the statement made by the petitioner in defence Muhammad Masood had already got some of the certified copies and for the remaining be paid the aforesaid amount.
It has been further contended that Martial Law Order No. 37 provides only a procedure for trial of offences and does not prescribe the mode of investigation and completion of challan as contemplated by the provisions contained in Chapter XIV of the Code of Criminal Procedure or other special enactments governing the subject matter of the case, such as Anti-Corruption Laws.
4. As discussed above, in the present case Muhammad Masood straightaway submitted his application to the Martial, Law Headquarters, Sialkot and some Martial Law Officer authorised Major Ameer Khusro to conduct raid. Paragraphs 2 and 3 of Martial Law Order No. 4, as amended by Martial Law Order No. 37, provide that a Military Court shall have power and jurisdiction to try and punish any person for an offence under any Martial Law Regulation or Order, or under any other law for the time being in force. It is further provided therein that a Military Court may, for the purpose of sub-paragraph (1) take cognizance of an offence-
(a) upon receiving a complaint of facts which 'constitute such offence,
(6) upon a report in writing of such facts made by any police officer or any Ofcer of the Armed Forces,
(c) upon information received from any person other than a Police Officer or an Officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed.
Paragraph 3 of Martial Law Order No. 4, as substituted by Martial Law Order No. 37, provides that a Martial Law' Administrator of a Zone, if he is of the opinion that it is necessary for maintenance of law and order or public tranquillity or for expeditious disposal of any case in public interest, may, within the zone concerned, order that any case pending before an ordinary criminal Court be transferred to a Military Court and dealt with as provided for in sub-paragraph (1) of paragraph and on the making of an order under this paragraph such case shall stand so transferred forthwith.
5. It is significant to notice that only a Military Court has been empowered under the said provision to take cognizance of any complaint or report, as the case may be, and no other Officer, whatsoever, has been so authorised. This provision is similar to that contained in section 190 of the Code of Criminal Procedure, which provides that any District Magistrate or Sub Divisional Magistrate or any other Magistrate specially empowered may take cognizance of any offence upon a report in writing and upon information. That, however, does not mean that if any such complaint or report is made to an authority other than that authorised by the aforesaid provision of law, then cognizance can be taken by that. Martial Law Order No. 4, as amended, provides that straightway a challan can be filed in Military Court and in addition to that, that Court can also take cognizance of an offence brought to its notice by way of report in writing or any information received by it from any person. This power has been granted to a Military Court in addition to the power enjoyed by a Martial Law Administrator ofZone whereby he can transfer a case pending adjudication in an ordinary Court to a Military Court for trial purposes if it is deemed necessary for maintenance of law and order or public tranquillity.
6. It is admitted in the present case that no Military Court, whatsoever authorised Maj. Ameer Khusro Tanoli to conduct the raid. His any suet action, even under the direction of a Martial Law Authority, cannot N considered to be valid being in violation of Martial Law Order No. 4, a amended.
There is no provision in the Martial Law. Regulations or Order, which authorises a Martial Law Officer to investigate the matter in such cases. The provisions as contained in Chapter VIII of the Pakistan Army Act, with regard to arrest and proceedings before trial, have not been made applicable to the cases to be tried by Summary Military Court, under any of the Martial Law Regulations and Orders.
Although some of the provisions of the Army Act and Rules framed thereunder have been made applicable, but since the aforesaid provisions with regard to arrest and investigation have not been made applicable, therefore, no Army Officer is authorised to investigate or hold inquiry into an offence alleged to have been committed by a person not subject to the Pakistan Army Act.
7: In the instant case some Army Officer in the Martial Law Headquarter, Sialkot authorised Maj. Ameer Khusro to conduct raid upon the petitioner after the complaint was received in the Headquarter. There is no provision in any Martial Law Regulation or Order authorising an Army Officer to conduct such raid in such cases. Action can be ,taken under certain provision which gives authority to do that. Any such authority given by an Officer/person otherwise not authorised to do so cannot be effective under the law. No Military Officer, except the Military Court has been authorised by Martial Law Order No. 37 to take cognizance of a particular offence on receiving a complaint, a report in writing or an information from any person other than a Police Officer or . Any Army Officer. It means that no Army Officer, howsoever high in rank he may be, can take cognizance of an offence upon receiving a complaint. Such cognizance can be taken only by a Military Court.
8. It can be argued that since Maj. Ameer Khuero after having conducted the raid and catching the petitioner red-handed of a case registered against him with the Police, therefore, the petitioner has been punished by a competent Court and no interference can be made with the order passed against him.
I am afraid, this argument will have no force. The basic question involved is as to which authority can take cognizance in such matters and from where the proceedings should emanate. No Martial Law Regulation or Order provides for taking cognizance of an offence except by a Military Court.
The procedure adopted in this case has not been provided by any Martial Law Regulation or Order and as such it hag adversely affected the interest of the petitioner.
9. Martial Law Order No. 7 as originally promulgated by Martial Law Administrator, Zone 'A' provided that whosoever offered or attempted to offer bribe or illegal gratification in any form and whosoever accepted such bribe or, illegal gratification would be tried by a Military Court. This provision was later on partially amended on 18-1-1978. It was however, re-constituted on 8-6-1978 widening only the scope of the definition of bribe; illegal gratification. Nowhere it has been provided therein that any person who accepts or who offers or attempts to offer bribe or illegal gratification would be tried by a Military Court. There is no doubt that any person who violates any Martial Law Regulation or Order can be punished under Martial Law Regulation No. 14 with rigorous imprisonment, forfeiture o1 property and/or whipping, but which Court will try such person has not been provided under Martial Law Order fro. 7 as re-constituted. It may be mentioned here that Martial Law Order No. 7 as originally enforced by Martial Law Administrator Zone 'A' has ceased to operate after its reconstitution on 8-6-1978.
Since the petitioner has also been charged for an offence under section 5 of the Prevention of Corruption Act (Act II of 1947), therefore, his sentence cannot be held to be illegal under the M. L. O.
As reconstituted, which does not provide his trial by a Military Court, as Martial Law Order No. 37 of the ~. M. L. A. Authorises a Military Court to try and punish any person for an offence under any of the Martial Law Regulations or Orders; or under any other law for the time being in force.
10. The present case is covered by special Statutes, such as Prevention of Corruption Act and the Pakistan Criminal Law Amendment Act, 1958, which provide for special procedure to be followed.
There is no provision in any of the Martial Law Regulations or Orders that such and such mode of investigation is to be followed in a particular case and particular steps as contemplated by Anti- Corruption Laws are to be taken before submitting challan to the Military Court.
The case of the petitioner is also not covered by Martial Law Order No. 17 enforced by the C. M. L. A.
On 6-8-1977. Under the aforesaid, provision competent authority, which is defined therein as the Chief Martial Law Administrator and where, in relation to any person or class.Of persons, the Chief Martial Law Administrator authorities a Martial Law Administrator of a Zone or any other officer or authority, to exercise the powers of competent authority under the order, includes such Martial Law Administrator or officer or authority, can appoint an Inquiry Officer for the purpose of making an inquiry into the accusations against such persons who are reported to be corrupt, guilty of misconduct, etc. A detailed procedure has been provided In the said Martial Law Order for holding inquiry by the said Inquiry Officer, who will have the power of a Civil Court for specific purposes. The report ip such case is to be submitted by the Inquiry Officer within a specific time to the competent authority, which may after examining the report dismiss or remove such person from service, or reduce him in rank or direct that he shall be permanently retired from service or may refer his case to any ordinary criminal Court or a Military Court for trial. The provision as contained in Martial Law Order No. 17 shows that it is meant for certain specific persons and not for a person as involved in the present case. Moreover, it is also evident from the facts of the present case that the procedure as prescribed by Martial Law Order No. 17 has not been followed in the instant case, No Martial Law Regulation or Order, so far enforced, authorises any Army Officer to be competent to receive such complaint directly and then take cognizance of that himself or further authorise any Army Officer to proceed with the matter.
11. Further, this is a matter of common knowledge that in corruption cases raiding party is constituted under the orders of the District Magistrate/ Magistrate duly authorised and if the raid proves to be successful then challan in that case is submitted to the competent Court of law. There being no provision in any of the Martial Law Regulations and Orders for conducting such raid as contemplated by Anti-Corruption Laws the raid conducted by Maj. Ameer Khusro upon the petitioner cannot be deemed to be valid and proceedings taken in this behalf being illegal and void the whole structure raised thereon would fall to the ground. In that event there will be no sufficient material on record justifying the conviction of the petitioner.
12. The above discussion would show that if an offence is committed and duly reported to the Police then after due investigation challan will be submitted to the ordinary Court or a Military Court, as the case may be. Further, as discussed above, a challan or private complaint can be straight away submitted to the Military Court and upon receiving that due cognizance can be taken thereof. It, however, does not mean that in view of the amended provision of Martial Law Order No. 4, the formalities laid down by the special statutes covering corruption cases have been dispensed with. The provisions providing for such formalities to be observed with regard to corruption matters have not been overridden by any of the Martial Law Regulations or Orders. It means that even upon the receipt of private complaint or information by the Military Court in corruption matters due formalities as provided by the Special Statutes would have to be followed while taking cognizance to the matter.
13. Since the case has been decided only upon the aforesaid point of law, therefore, I don't deem it necessary to dilate upon the other contentions.
14. As a result of the above discussion, the writ petition is accepted, without any order as to costs, and the conviction and sentence of the petitioner is hereby set aside. He shall be released forthwith, if not required in any other case.