According to the prosecution, the present Constitutional petition arises out of the following facts and circumstances
1. Brigadier S. M. Ilyas P. W. Was the Chairman of the Disqualification Tribunal No. 4, Sargodha Division (set up under Martial Law Order No. 47) dealing with the cases of Ex-MNAs/MPAs of that Division. He was otherwise posted as Commander 41 Indep. Arty. Bde. Jhelum Cantt. And was residing at 26, Tariq Road, Jhelum Cantt. The case of Ch. Muhammad Khan, ex-MNA (1970) and ex- MPA (1977) from Faisalabad District was referred to the said Disqualification Tribunal. On 25-8-1978, at about 7-30 a.m., the said Muhammad Khan went to the residence of the said Brigadier at Jhelum Cantt. Mrs. Nasim Ilyas P. W., wife of Brigadier S. M. Ilyas, P. W., was informed by her Orderly that somebody had come to see her husband. She accordingly came out and saw a man sitting in the verandah who introduced himself as Ch. Muhammad Khan, ex-MNA Faisalabad. He told her that he wanted to see Brigadier S. M. Ilyas in connection with his case pending before the Disqualification Tribunal of which her. Husband was the Chairman. She informed him that the Brigadier was sleeping and it was not, therefore, proper to disturb him at that time. She further told him that her husband does not see people at his residence for official matters. He told her that he had come to Brigadier S. M. Ilyas to explain him that he was innocent and, therefore, justice should be done to him by the Tribunal. She claims to have told him that if he had not done any misappropriation there was nothing to worry. He insisted that she should talk to her husband and that he would come again to see him. She, however, told him that next time he should see her husband at his office and not at the residence. On 28-8-1978, at about I1-30 a.m. Muhammad Khan again visited the residence of Brigadier S. M. Ilyas and was seen sitting in the verandah when Mrs. Nasim Ilyas returued to her house from the bazar after shopping. He asked her if she had- talked to her husband regarding his case or otherwise. She replied that she had talked to her husband who had said that justice would be done to him. At this stage, said Muhammad Khan is alleged to have narrated his pathetic family story to get sympathies and further said that she was his sister and that he had brought Eidi for her children. She, however, claims to have told him that there was no need of giving any Eidi. After this, he went away and she went inside the house. After 2/3 minutes she again saw him standing inside the house in the gallery with a brief-case in his hands. He told her that he bad come again to present Eidi and that she must accept the same. She claims to have become annoyed on his trespassing into the house and offering the said Eidi and told him to take away the brief-case which he had placed on the table in the gallery. In the meantime, he had moved outside the gallery. She picked up the brief-case and placed the same near him in the verandah where he was standing. He, however, did not pay any heed to her words and went away leaving behind the brief-case and repeating the previous words that she was his sister and, therefore, must accept the said Eidi in the brief-case. She claims to have informed her husband Brigadier S. M. Ilyas at his office on the telephone about what had happened. On receipt of information, the Brigadier immediately told his Brigade Major Muhammad Basir Khan P. W. To go to his house at once and to take into possession the brief-case and also to look for the culprit, i.e. Muhammad Khan. Accordingly, the said Major Muhammad Basir Khan P. W. Immediately reached the residence of the Brigadier where Mrs. Nasim Ilyas P. W. Pointed out towards the brief-case left by the accused lying in the gallery of the house near the door. The brief-case was black in colour and looked a new one and its keys were hanging with it. She also handed over to the Major a chit on which the name, designation and address of Muhammad Khan was written in English.
According to her, this chit was sent by Muhammad Khan inside the house through her servant to inform about his arrival. The Major signed on the chit at the same time (Exh. K). He then opened the brief-case in the presence of Mrs. Nasim Ilyas P. W. And found two bundles of currency notes of the denomination of rupees hundred along with another chit on which the same name, designation and address of Muhammad Khan was written in English. The brief-case contained nothing else except the said currency notes and the chit. He signed that chit also (Exh. L). In the meantime, Brigadier S. M. Ilyas P, W. Had also reached his residence and he was informed about the contents of the brief-case and the chits. The Major then informed A. S. P. Shaukat Hussain on the telephone and asked him to come to the Brigade Headquarters immediately. Brigadier S. M. Ilyas P. W.
Directed the Major to take the brief-case to his office. On reaching the office, he opened the brief- case in the presence of Brigadier S. M. Ilyas and Major Azizur Rahman P. W. And counted the currency notes amounting to Rs. 19,900. The keys of the brief-case were also hanging with it. On the same day, at about 12-30 p.m. Muhammad Inayat Batman of Brigadier S. M. Ilyas came to the office and informed Major Muhammad Basir Khan P. W. In the presence of Brigadier S. M. Ilyas P. W.
That said Muhammad Khan had again come to the house of the Brigadier. On this information, the Brigadier ordered the Major to go and apprehend him. Accordingly, Major Muhammad Basir Khan P. W. Took the staff car and went to the residence of the Brigadier along with his Personal Assistant, Naib Subedar Muhammad Aslam, and Muhammad Inayat Batman. On reaching the spot, he saw a person sitting in the verandah. On asking his name and other particulars he stated that his name was Abdul Rahman. When the Major asked him where Ch. Muhammad Khan, ex-MNA was, he replied that he was the one. The Major asked him to sit in the car to accompany him to the Brigade Headquarters. On this, Muhammad Khan is alleged to have started apologising that he had committed a mistake and also started begging pardon and even touched the feet of the Major to beg mercy. Muhammad Khan, however, was forcibly made to sit in the car and taken to the Brigade Headquarters where again he begged for mercy. On the direction of Brigadier S. M. Ilyas, he was taken to a Magistrate for recording his statement. In the meantime, A. S. P. Shaukat Hussain had also reached the Brigade Headquarters who was informed about the whole case. Brigadier S. M. Ilyas lodged the following report with the S. P. Jhelum :- "Subject : Trespassing/Offering Bribe.-28th August, 1978.-(1) I am resident of 26-Tariq Road, Jhelum Cantt. Today at about 12-OO.-hours a man who tells his name as Muhammad Khan contacted my wife and pleaded that he was an innocent man and should not be disqualified by her husband, I.e. Myself. He spoke to her in a hurry and left behind a brief-case which was later opened by Major Muhammad Basir Khan in the presence of Major Azizur Rahman. . It contained currency notes.
(2) The individual again visited the house at about 1245 hours. My Batman slipped away from the house and immediately informed me. Major Muhammad Basir Khan apprehended the individual at myresidence.
(3) The offender is accompanied by two suspicious characters. Formal complaint is hereby launched with the police to proceed against the individuals.
(Sd.)
Brigadier Commander (S. M. Ilyas)."
On the basis of the above report, formal F. I. R. No. 207 dated 28-8-1978 was registered at Police Station City Jhelum. Muhammad Khan also begged for mercy in the presence of A. S. P. Shaukat Hussain. Accordingly, he was produced before Mr. Taj Muhammad Khatak, Magistrate Ist Class, who recorded his statement. After recording the statement, he was brought back to the Brigade Headquarters 'where he was handed over to the police at about 4-00 p.m. Along with brief case containing the currency notes. After the usual investigation, Muhammad Khan was challaned under Martial Law Order 7 (Zone `A') (hereinafter referred as M. L. O. 7) and under section 165-A of the Pakistan Penal Code. Following charge was framed against him; "The accused Chaudhry Muhammad Khan son of Chaudhary Abdul Rahim, caste Jat, age 35 years, resident of 28 New Civil Lines, Faisalabad, is charged with : Attempted to give to a public servant to acceptFIRST CHARGE gratification in order to get favour for himself,M. L. O. 7 (Zone A) knowing it to be an offence, in that he, onas amended dated 28 August 1978 at about 12-00 hours left8th June 1978 section his brief-case containing currency notes165-A, P. P. C. Pun- worth Rs. 19,900 at the residence of Brigadierishable under M.L.R.
S. M. Ilyas, Chairman Disqualification14.
Tribunal, Sargodha Division with the intention of getting favour for his case pending in the(Sd.) said Tribunal.(Iftikhar Ahmad)
(Sd): Lt: Col. District Magistrate, Jhelum (Muhammad Asghar Khan)." On his pleading not guilty, Muhammad Khan was tried by the Summary Military Court No. 20, Jhelum.
2. In support of its case, the prosecution produced the following witnesses
(1) PSS 7689 Major Muhammad Basir Khan.
(2) PSS 10415 Major Azizur Rahman.
(3) Mrs. Nasim Ilyas daughter of Mian Muhammad Bashir.
(4) PA 5103 Brigadier S. M. Ilyas.
(5) No. JLM/21 Muhammad Sarwar.
(6) No. R/144 Syed Murtaza Husain Shah.
3. The accused when called upon for his defence, stated as under : "On 25th August 1978, at about 0730 hours I visited the residence of Brigadier S. M. Ilyas, Chairman, Disqualification Tribunal, Sargodha Division, to know about the place of sitting of the said Tribunal, because I was informed by somebody that the Tribunal had issued notices to convene at Jhelum. I could not meet Brigadier S. M. Ilyas on that day and was informed by Mrs. Brigadier S. M. Ilyas to come after two or three days. I was suffering from heart disease in those days and was advised by doctors to leave fasting and have rest. Therefore, on 28th August 1978 I was going to Rawalpindi from Lahore with the intention of staying at Murree for few days to have complete rest. I was carrying Rs. 20,000 out of which Rs. 15,000 were to be handed over to my sister at Rawalpindi and remaining Rs. 5,000 were for my own expense. On my way to Rawalpindi, I halted at Jhelum and went to the residence of Brigadier S. M. Ilyas at about 1130 hours to get the information from Brigadier S. M. Ilyas about the place of sitting of said Tribunal. When I reached at his residence, I sent a chit inside through the servant. Mrs. Brigadier S. M. Ilyas came out after about few minutes and I reminded her about my previous visit on 25th August 1978 and told her that I had again come with the same intention of knowing about the place of sitting of the Tribunal, on which she informed me that Brigadier S. M. Ilyas was in his office and would come at about 1330 hours. . She also allowed me to sit in the verandah and wait for her husband. As I was likely to wait for some time, therefore, I went out of the house to give some instructions to my driver. I could not see my car on the road where I left it. After searching for about 10 to 20 minutes I saw my car coming from the city side. I instructed my driver to park the car at some convenient place under the shade and stay outside the house, because I did not want my servants to be in the house of Brigadier S. M. Ilyas. At that time, I recollected that I had forgotten my brief case at the residence of Brigadier S. M. Ilyas.
Therefore, I rushed towards his house. When I reached there, my brief-case was not at the place where I left it. I enquired from the servant about the brief-case who went inside the house telling me to wait. I was sitting outside in the verandah when one Army Officer whose name I came to know later as Major Muhammad Basir Khan along with an armed soldier and two other persons came to me and asked my name. I told my name as Muhammad Khan son of Abdul Rahim. He told me that I was under arrest for leaving the brief-case at the residence of Brigadier S. M. Ilyas. I was shocked. I wanted to explain my position to Major Muhammad Basir who did not listen to me and took me forcibly to the Brigade Headquarters in a staff car. When we reached there, I again wanted to explain my position and requested Major Basir to allow me to see Brigadier S. M. Ilyas so that I can explain to him that I had forgotten my brief-case and that I had come back to collect it of my own. He did not allow me to see Brigadier S. M. Ilyas. Afterwards I was handed over to police. I am innocent as far as the present case of bribe against me is concerned. It was merely an outcome of misunderstanding. I am a sickman. My kidneys are not functioning properly and I also suffered heart attack last year.
Certified that the provisions of Pakistan Army Act Rules 124 (2), (3) and (4) have been complied with."
He, however, produced no witness in defence.
4. The President, Summary Military Court vide order dated 2-9-1978 found Muhammad Khan guilty under M. L. O. 7 as amended punishable under M. L. R. 14/section 165-A, P. P. C. And sentenced him as under : "(1) Rigorous imprisonment --To suffer rigorous imprisonment for one year.
(2) Forfeiture of property.-To forfeit the property worth Rupees one lakh.
(3) Whipping.-To be administered 15 stripes publicly."
The conviction and sentences awarded to Muhammad Khan have been challenged by his brother Ch. Abdul Saboor petitioner through the present writ petition.
5. 1 have considered the defence version as contained in the statement of the convict Muhammad Khan. He has admitted his visit to the house ofl Brigadier S. M. Ilyas on 25-8-1978 as well as on 28- 8-1978. He has also given, his explanation for leaving his brief-case containing the currency notes at the' residence of Brigadier S. M. Ilyas. Thus there are two versions regarding the said brief-case- one alleged by the prosecution and the other suggested by the defence. Since the view taken by the trial Court is supported by evidence, it requires no interference by this Court in exercise of its original Constitutional jurisdiction.
6. It is vehemently contended by the learned defence counsel that Major Iftikhar Ahmad has -not been notified as the President of Summary Military Court No. 20, Jhelum and, therefore, the trial of the convict stands vitiated. Mr. Tanvir Ahmed Khan, the learned Assistant Advocate General has, however, placed on record a photostat copy of the required notification. After this, the defence counsel has not pressed this matter further.
7. Another contention raised on behalf of Muhammad Khan convict is that since the statement of Mrs. Nasim Ilyas P. W. Was not recorded in his presence or his counsel/next friend, the whole trial stands vitiated. It is not denied that her statement was recorded by the President Summary Military Court at her residence in the absence of the accused and his counsel. As regards the reason for the absence of the accused and his counsel/next friend, there are contradictory versions-one alleged by the prosecution and the other suggested by the defence. Both versions are supported by affidavits. In a situation like this, it is not desirable for this Court in exercise of its original Constitutional jurisdiction to express any positive opinion regarding the correctness of a certain disputed question of fact, as the matter requires further probe, which is not possible here at this stage.
8. The next argument advanced on behalf of the defence is that the charge has been framed by the District Magistrate, Jhelum, and not by the President Summary Military Court. According to the defence counsel, under the Pakistan Army Act and the Rules made thereunder, charge has to be framed by the President Summary Military Court. On the other hand, the learned Assistant Advocate-General states that the charge has been signed by the District Magistrate, Jhelum, in his capacity as Sub-Martial Law Administrator and relies upon rule 132 of the Pakistan Army Act Rules, 1954, to show that the alleged irregularity of non-signing itself of charge-sheet by the President Summary Military Court does not invalidate the trial. The defence counsel has not been able to cite any provision of law or Rules to the contrary. Since undoubtedly the Summary Military Court had jurisdiction to try the convict and the conviction is based upon evidence and the proceedings have been reviewed/countersigned by the Deputy Martial Law Administrator, I agree with the learned Assistant Advocate-General, especially when no prejudice is alleged to have been caused to the accused by non-signing of the charge by the President of Summary Military Court.
9. It is contended by the learned defence counsel that paragraph 2 of M. L. O. 7 (Zone A) as reconstituted is not an offence creating paragraph, but it is only narratory in nature and, therefore, conviction under this paragraph is illegal. In order to properly appreciate the argument, let us examine the history of M. L. O.
7. The M. L. O. As originally promulgated on 12-7-1977 read as under : "Whosoever offers or attempts to offer bribe or illegal gratification in any form or manner and whosoever accepts such bribe or illegal gratification, and whosoever abets or induces or attempts to induce someone to offer or accept bribe or illegal gratification in any manner or form with the object that in the course of transaction of official business some favour or disfavour shall be obtained for anyone, some service or disservice shall be rendered for undue benefit of someone, shall be tried by Military Court."
This Order was subsequently on 18-1-1978 modified and the amended Order is reproduced below "No person shall offer or attempt to offer bribe or illegal gratification in any form or manner and no person shall accept any bribe or illegal gratification for himself or any other person or induce or attempt to induce any person to offer or accept such bribe or illegal gratification in any form other than a legal remuneration as a motive or reward for doing or forbearing to do any act or for showing favour or disfavour to any person in relation to an official business."
On 8-6-1978. M. L. O. 7 was reconstituted as under : "(1) No person shall accept or obtain or agree to accept or attempt to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant or any employee of a corporation, association or body in which the Government has any financial interest, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant or employee to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Federal or any Provincial Government or any corporation, association or body in which the Government has any financial interest, or with any public servant or an employee of a corporation, association or body in which the Government has any financial interest, as such.
(2) No person, being a public servant, or any employee of any corporation, association or body in which Government has any financial interest, shall accept or obtain, or agree to accept or attempt to obtain, for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or employee of any corporation, association or body in which the Government has any financial interest, as the case may be, or having any connection with the official functions of himself or of any public servant or employee of any corporation, association or body in which the Government has any financial interest, as the case may be, to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned.
(3) Any person who gives or attempts to give or cause to be given to a public servant or to an employee of any corporation, association or body in which the Government has any financial interest, or induces any public servant or to an employee of any corporation, association or body in which the Government has any financial interest, to accept any gratification whatsoever as a motive or reward for inducing such public servant or employee to do or to forbear to do any official act, or in the exercise of the official functions of such public servant or employee to show favour or disfavour to any person with the Federal or any Provincial Government or with any corporation, association or body in which the Government has any financial interest."
It is admitted by the learned Assistant Advocate-General that para. Graphs 1 and 2 of M. L. O. 7 are not attracted to the present case. According to him, the convict has been rightly charged and convicted under paragraph 3 of M. L. O.
7. On instructions, he has stated at the Bar that paragraph 3 as reproduced above, is the correct one. A bare reading of this paragraph shows that it neither creates any offence nor otherwise makes any sense as grammatically speaking it is even incomplete. Judged from any standard this paragraph does not come up to the mark and convey no sense. This paragraph only narrates something, but even that narration does not convey any complete sense. It is thus incomplete even in its narration. It is not prohibitory but merely narratory.
It is completely silent as to what will happen to a person who gives or attempts to give, etc. Any bribe or illegal gratification to .After careful scrutiny of this paragraph, it can safely be held that paragraph 3, as it stands today, neither creates any offence nor otherwise prohibits anything. It only narrate something, but that too is incomplete. Confronted with this obvious lacun existing in this paragraph, the learned Assistant Advocate-General vehemently contends that this paragraph should not be read separately but should be read along with paragraphs 1 and 2. It seems that the intention of the draftsman for enacting M. L. O. 7 was to cover the cases of both the classes of persons who accept bribe and who offer it as narrated in the famous Hadith (The acceptors and the givers of the bribe shall both be in Hell).
Paragraphs 1 and 2 of M. L. O. 7 cover two separate classes of bribe acceptors. It seems that paragraph 3 was to cover the class of bribe-givers, but the draftsman has not been able to achieve that object. This paragraph is differently drafted from the earlier paragraphs and does not start with prohibitory words as used in paragraphs 1 and 2. This paragraph starts with the narration, but even that narration, as mentioned above, is incomplete and does not convoy any sense. A mere perusal of M. L. O. 7 leads to the conclusion that all the three paragraphs are separate and of independent character, meant for different and independent situations. I am, therefore, unable to accept the contention of the learned Assistant Advocate-General and hold that all the three paragraphs of M. L. O. 7 are separate and independent and the penal and prohibitory language used in paragraphs 1 and 2 cannot be read in paragraph 3 of M: L. O.
7. It is well-settle principle of interpretation of statutes that the Court does not fill in the lacunas left by the Legislature, as the functions of the two are entirel different from each other. The Courts are not to legislate under the garb o interpretation. The Court has to look to the exact words of the Statute and interpret them in the light of what is clearly expressed. In other words, the Court cannot imply anything which is not clearly expressed and it cannot import words in the Statute so as to support assumed deficiency. It is' further well established that penal provisions of a Statute should be strictly construed and in case of any ambiguity or doubt arising from the construction or interpretation, the benefit must go to the accused. M. L. O. 7 is undoubtedly a penal Statute. In the instant case, since paragraph 3 of M.
L. O. 7 is neither prohibitory in its language, nor provides any penalty for giving illegal gratification, M. L. R. 14 is not, therefore. Attracted an consequently the Court is helpless to punish such a person under the said paragraph 3 of M. L. O.
7. Similarly, the prohibitory and penal effect of paragraphs 1 and 2 of M. L. O. 7 cannot be read in paragraph 3. In the circumstances, it can s4fely be held that paragraph 3 of M. L. O. 7, as it stands today, is neither prohibitory nor punitive in its character and, therefore, does not create any offence in the eye of law. Consequently, conviction and sentences of Muhammad Khan convict under this paragraph 3 of M. L. O. 7 are illegal and without lawful authority and, therefore, liable to be quashed.
1Q. It is argued by the learned Assistant Advocate-General that even if the conviction of Muhammad Khan convict under M. L. O. Tis set aside for any technical reason, the same can be maintained under section 165-A, P. P. C. On the other hand the learned defence counsel argues that even the conviction under section 165-A, P. P. C. Is not maintainable and alternatively suggests that the only section applicable to the facts of the ease is section 163, P. P. C. And has also cited one Indian authority in support of this view.
11. Section 165-A, P. P. C. Provides punishment for the abetment of offences under sections 161 and 165, P. P. C. It is not denied even by the learned Assistant Advocate-General that section 1.65, P. P. C.
Is not applicable to the instant case for the simple reason that the convict is not alleged to have offered or attempted to have offered "any valuable thing" without consideration, to a public servant. The allegation against him is that he attempted t _ pay hard cash in the form of currency notes to Mrs. Nasim Ilyas P. W. Who herself is not a public servant but is the wife of Brigadier S. M.
Ilyas. Section 165, P. P. C. Is therefore obviously not attracted to the facts of the present case.
Similarly section 161, P. P. C. Does not apply as the convict did not pay or attempted to pay any illegal gratification direct to a public servant, i.e. Brigadier S. M. Llyas-but he is alleged to have attempted to pay sum of Rs. 19,900, to Mrs. Nasim Ilyas P. W. As a motive for inducing he husband to show some favour to the convict. Taking into consideration the facts and circumstances of the case and the relevant provisions of the Pakistan Penal Code, I am of the view that Muhammad Khan convict did attempt to abet the acceptance of Rs. 19,900, by Mrs. Nasim Ilyas P. W. With a view to inducing her by such corrupt or illegal means or by personal influence to induce her husband Brigadier S. M. Llyas, a public servant to show favour to the convict in the exercise of his official function as Chairman of the Disqualification Tribunal No. 4, Sargodha Division, before which the case of the convict was pending. His case therefore clearly fall under section 163, P. P. C.
Accordingly I set aside the conviction and sentences under section 165-A, P. P. C. And M. L. O. 7.
Since Muhammad Khan convict only attempted to abet the offence under section 163, P. P. C.
Which was not committed, he shall be liable under section 116, P. P. C. To 1/4th of the maximum sentence prescribed under section 163, P. P. C. In this situation no useful purpose will be served by remanding the case to the ,appropriate Court for retrial as the convict has already undergone rigorous imprisonment for about four months which is more than 1/4th of the imprisonment prescribed under section 163, P. P. C. Accordingly while convicting Muhammad Khan under section 163/116, P. P. C. I sentence him to the period of imprisonment already undergone by him and a fine of Rs. 5,000 (Rupees Five thousand only) or in default of payment of fine further simple imprisonment for three months. The sum of Rs. 19,900 shall also stand confiscated to the State. He shall be released forthwith provided the said fine is paid and he is not required in connection with a any other case.
12. Before parting with the judgment, it may be observed that the trial of Muhammad Khan convict commenced at 6-55 a.m. On 2-9-1978 and concluded at 8-30 p.m. On the same day. The execution of sentence of stripes (three out of fifteen stripes) was also carried out on the same night at 10-00 p.m. Whereas the reviewing authority, I.e. Deputy Martial Law Administrator countersigned/reviewed the proceedings and remitted the remaining 12 lashes on 17th September, 1978. The question, which in the circumstances, arises for consideration, therefore, is whether the execution of sentence of lashes awarded by a Summary Military Court can be carried out before the proceedings of that Court are reviewed/countersigned by the reviewing authority under clause
(d) of proviso to paragraph 7 of M. L. O. 4 read with Martial Law Instruction No. 8 (Zone A). It is well settled principle that -the reviewing authority under the said M. L. O. 4 read with the Pakistan Army Act, 1952, and the Pakistan Army Act Rules, 1954 has got unfettered powers to set aside the proceedings, to mitigate, reduce, remit, commute or suspend the sentence awarded by the Summary Military Court. If after the pronouncement of sentence by the Summary Military Court, the sentence of lashes is carried out before the proceedings are actually forwarded to and reviewed/countersigned by the reviewing authority, it will defeat the very purpose of review/countersigning as contemplated by the law. It will also directly affect the powers of the reviewing authority because if, on review the reviewing authority comes to the conclusion that the sentence of lashes was not justified and is liable to be set aside but the same having already been executed, there will be no occasion for the review in authority to judge the validity or otherwise of that part of the sentence and to undo the harm already done to the convict. In other words the execution of sentence of lashes by Summary Military Court before the proceedings are reviewed/countersigned will be in conflict with the power of the reviewing authority. The President of Summary Military Court being a subordinate to the reviewing authority, cannot claim such a power or otherwise can be expected to directly or indirectly interfere with the power of his superior, i.e. Reviewing authority. Under clause (d) of proviso t paragraph 7 of M. L. O. 4, the proceedings of a Summary Military Court are to be forwarded to the reviewing authority without delay. As mentioned above the proceedings in the instant case were reviewed /countersigned by the reviewing authority on 17th September, 1978 while execution of part of lashes had already been carried out on 2-9-1978 which, in the circumstances of the case, is clearly without lawful authority. The Summary Military Courts are therefore required to strictly observe the mandatory provisions o law and execute the sentence of lashes only after the proceedings are reviewed/ countersigned by the reviewing authority under clause (d) of. Proviso to paragraph 7 of M. L. O. No. 4. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.