The petitioner while serving as a Captain in Pakistan Army was charged with an offence of commission of Qatl-e-Amd of Masroor Ali Shah. He pleaded not guilty. The trial was conducted and the Field General Court Martial found him guilty as charged. He was convicted under Section 59 of Pakistan Army Act, 1952 and sentenced to death by way of Tazir. He was also dismissed from service. Revising authority converted the death into life imprisonment for life while maintaining dismissal from service. Upon appeal, appellate authority (Court of appeals) upheld the conviction.
The sentence as revised was also found to be proper. However, on humanitarian grounds five years R.I. was remitted from sentence of life imprisonment.
2. Learned counsel for the petitioner contends that the conviction has been recorded and consequently sentence has been imposed on the basis of no evidence or at least insufficient evidence. He refers me to some portions of the evidence recorded by Court Martial. According to the learned counsel this Court can proceed to appraise the evidence on record and thereafter to set aside the said conviction and sentence if upon reading evidence this Court found that finding of guilt and consequent sentence could not be sustained. Refers to the cases of Federation of Pakistan and another v. Ghulam Mustafa Khar (PLD 1989 S.C. 26), Mrs. Shahida Zahir Abbasi v.
President of Pakistan and others (PLD 1996 S.C. 632), Sardar Farooq Ahmed Khan Leghari and others v. Federation of Pakistan and others (PLD 1999 S.C. 57) and S.R. Bommai and others etc. u.
Union of India and others etc. (AIR 1994 S.C. 1918). Learned D.A.G, on the other hand, refers to several unreported cases decided by the Hon'ble Supreme Court in the case of CPLA No, 1644/2001 Ex.
Sowar Muhammad Saghir Khan u. Federal Government, Ministry of Defence through COAS, GHQ Rawalpindi, Ex, Lt. Col. Anwar Aziz v. Federation of Pakistan through Secretary, Ministry of Defence (PLD 2001 S.C. 549) and judgment of this Court dated 8.6.1999 in W.P. No, 1150/95 as also the judgment dated 27.11.2002 of the Hon'ble Supreme Court of Pakistan in C.A. No, 662/2002 Federal Gout. Ministry of Defence Vs. Sepoy Liaqat Ali to urge that the case of coram non judicial or malafide has not been made out to enable this Court to proceed on the lines suggested by the learned counsel for the petitioner.
3. Now so far as the question of competency of this writ petition is concerned, by now the matter stands resolved and put to rest in several judgments of the Hon'ble Supreme Court that an ouster clause pertaining to jurisdiction of superior Courts would not take effect where an act or proceedings is without jurisdiction, coram-non-judice or mala fide.
4. Now in the instant case there is no denial that the petitioner was subject to Pakistan Army Act, 1952 and was lawfully tried by the Field General Court Martial (FGCM) convening thereof is not stated to be suffering from any invalidity. Of course no malafides have been pleaded.
5.Now a question of fact was decided by F.G.CM to the effect that petitioner who was charged with commission of Qatl-i-Amd of Masroor Ali Shah civilian was found guilty and after returning said verdict he was sentenced as detailed by me above. Now the difficulty is that unlike a Court of civil or criminal jurisdiction established under Criminal Law under the authority of the Constitution, said Court of Martial is not required to draw a judgment by way of a final expression of adjudication made by it of the matter before it. Now according to law governing the said trial no element of absence of jurisdiction or lawful authority is involved in recording judgment in the said manner i,e, guilty or not guilty. To be precise this Court has not benefit of process of reasoning employed by the said Court in coming to the said conclusion. However, examination of the record shows that the proceedings were conducted, to say so, in a fair manner inasmuch as the petitioner was informed of the charge on which he is to be tried. He had service of learned Defence Counsel. All material witnesses produced were cross-examined afid there is no complaint that any hindrance was there in the exercise of said right by the petitioner. I further find that the Court of appeal had recorded its finding in the form of statement giving reasons. One thing in certain that the said findings of the Court of appeal do demonstrate the application of the mind. I may further state here that prior to the said appeal, verdict of the Court of Martial was subjected to revision and at that stage as well matter was considered resulting in conversion of the sentence of death into life imprisonment and this was further reduced by remission of five years of humanitarian grounds by the Court of appeal vide findings recorded on 13.6.2000.
6. Now learned counsel for the petitioner after pleading that the case falls with the said exception laid down by the Apex Court repeatedly qua the ouster clause, has argued the matter as if this Court is hearing an appeal against the verdict of the Court of Martial as amended subsequently by revising and appellate authority. He wants this Court to re-appraise the evidence and in case a different view is to be formed after the said exercise, to express the same. To my mind, unless it was to be demonstrated that this is a case of no evidence or gross mis-reading of evidence so as to render the said judgment or verdict perverse and consequently coram-non-judice, it would not be possible to undertake the said exercise. In the said case of "Mrs. Shahida Zahir Abbasi" (PLD 1996 S.C. 632) it has been observed by the Hon'ble Supreme Court that a Court Martial is part of ordinary law of land are not to be confused with Martial Law Courts, which are brought into the existence on suspension of ordinary law and that these are established institution with well known procedure which cannot be described arbitrary, perverse or lacking in fairness in any manner. The Hon'ble Supreme Court then examined the Pakistan Army Act, 1952 with reference to the provisions governing the procedure of trial before a Military Court and view formed was that the procedure prescribed for trial before the Military Court is no where contrary to the concept of fair trial in a criminal case. Reference was also made to the provisions of appeal against the conviction and sentence recorded by such a Court. I have already noted above that the examination of the record does not show in any manner that the procedure adopted in the instant case and proceedings conducted are violative of the prescribed procedure.
7. The record does go to show that the commission of the said offence attributed to the petitioner was an unseen occurrence. The prosecution led circumstantial evidence and on the basis thereof the said Court recorded the findings of guilt. On revision the verdict was corrected after excluding some in admissible pieces of evidence and the sentence was also reduced.
8. Now according to Dr. Musahib Ali PW-12, he conducted postmortem on the body of Masroor Ali Shah deceased on 7 p.m. on 26.8.97. He found an entry wound over the neck blow hoid bone and exit wound on the back of the neck at the level of 4th cervical vertebrae. Two entry wounds on left second inter coastal space. Exit wound was on the back of the chest below left scapula. Two entry wounds over left nipple with exit wounds on the back of the chest below left scapula. Doctor opined that the death was caused due to fire arm injuries on the vital organs. According to him the death was instantaneous and time between death and postmortem was 40 hours. This brings the time of occurrence at about 3 a.m. on 25.8.97. PWs 6, 7 and 11 are police officials (civil) who were on patrol duty and about 3 a.m. on 25.8.97 confronted the petitioner. All of them stated that his clothes were wet up to waist level from the top and bottom of Shilwar was also wet. He was found in possession of a Pistal under his armpit in a holster. Cross-examination reveals that the fact was not as such denied to have occurred PW-13 Syed Saif Ali Shah deposed that at the same night at about 9.30 or 10 p.m. the petitioner took his Scooter to purchase Cigarettes and he gave the Scooter to him. PW- 14 Syed Muyassar Ali Shah stated that he saw the deceased Masroor Ali Shah alongwith one Arshad in a Chowk. He requested for lift. He was dropped at Miri Colony and Masroor told him that he will come after dropping Arshad at this house. Thereafter they came back to Mohallah Mian Barkat Ullah and saw the petitioner in the Chowk. All three of them had Ice Cream. Thereafter they went to graveyard of the Mohallah ' and had Cigrattes which were filled with Charas. The witness then left the deceased and petitioner in the Mohallah Chowk and went back to his house which is about 10/15 steps away from the house of the petitioner. At about 11.30 mid-night heard a few shots but he could not make out the source. On 25.8.97 he was told by his sister (wife of the deceased) that he had not return home last night; then the witness went to take his examination. He met Mehmood Ali Shah at 12 noon who was looking for the deceased. He also joined the search on 26.8.97 when they heard a dead-body has been recovered from Tanda Dam. They went there and later identified the dead-body. Now this witness was cross-examined at length but he was not questioned about the fact of the said last seen evidence. Then there are recoveries and statements of some witnesses who had heard the sound of fire in the house of the accused in their vicinity. Now the learned counsel has argued that motive has not been proved i,e, marriage of Arifa with deceased or deceased causing delay in the marriage of the accused. This may be so but then now it is settled that this matter is to be considered only for the purpose of award of sentence.
Non-recovery of the weapon or remaining empties were also to be looked into and considered in over all circumstances reflected in the evidence.
9. Having thus gone through the records, I find that the verdict and proceedings and ultimate conviction and sentence are neither without jurisdiction or coram-non-judice nor do they suffer from any mala fide either in fact or in law. I have already noted above that this is not a Court of appeal and merely that a different view may be possible, interference in exercise of Constitutional jurisdiction cannot be made even in the matter decided by the Tribunal and Courts under ordinary civil laws. The writ petition is accordingly dismissed.