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Petitioner: BURURREHMAN and anothers VS Respondent: GOVERNMENT OF SIND and 3 others
Court Name: Sindh High Court Judge(s): Saleem Akhter, Imam Ali G. Kazi Title: BURURREHMAN and anothers vs GOVERNMENT OF SIND and 3 others Case No.:Constitutional Petitions Nos. D-1633 of 1987, D-1219, D-309 of 1988 and D-193
JUDGMENT
Reported As: PLD 1989 Karachi 572 Result: Petitions dismissed Judgment JUDGMENT ' SALEEM AKHTAR, J.--By this judgment all the four petitions will be disposed of as they have been directed against the-judgment of the Special Military Court by which the accused in respect of which petitions have been filed, were sentenced to imprisonment, fine and properties were confiscated. A consignment of rice was exported by Sunny Enterprises from Karachi to Dubai where large quantity of charas was recovered from it. On 22-4-1986, F.I.R. No,21 of 1985 was lodged by Syed Meraj Rasool the Assistant Director of respondent No,3 against one Abdul Samad of M/s. Sunny Enterprises and others under section 10 of the Dangerous Drugs Act II of 1930 read with section 156(1)(8) of Customs Act, 1969 and Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979. The F.I.R. Reads as follows: 'Brief facts. -- On receipt of credible information that malpractices allegedly occurred in the Export of Consignment to WRSM Trading Co; Dubai, supplied by Rice Export Corporation of Pakistan through an Agent namely M/s. Sunny Enterprises, Hakimsons Bldg. , West Wharf Road, Karachi. The consignment in question was apprehended at its destination at Dubai. From the consignment prohibited material was discovered which was reportedly contraband Narcotics substance recovered in some of the rice packets of Rice Export Corporation of Pakistan. ' On receipt of above information enquiry No,13/85, dated 17-4-1985, F.I.A., E.E. Wing Karachi was registered. ' During the preliminary enquiry the facts revealed that 90 Tons of packed rice in 4500 cartons were shipped vide Bill of Lading No,1, dated 1-4-1985 (Shipping Bill No,49752 dated 14-3-1985) in favour of
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M/s. WRSM Trading Co. Dubai, per m.v. 'COMPANIA'. On arrival of consignment at Dubai, some packets of contraband Narcotics substance were detected by Du bai Authorities. ' The above facts disclosed offence under section 10 Dangerous Drugs Act (Act II of 1930), read with section 3/14 Prohibition of Hadd Ordinance, 1979 and 156(1)(8) of Customs Act, 1968. ' Hence registration of this case. I am investigating the case. (Sd.) Syed Meraj Rasool, Asstt. Director, EE/FIA, Karachi 22-4-1986' ' The Investigating Officer of the F.I.A. Submitted interim charge sheet No,24 of 1985 on 9-5-1985 alongwith brief facts of the case in the Court of Special Judge, Customs and Taxation Karachi. In this interim charge sheet the following were named as accused: (1) Abdul Saeed of M/s. Sunny Enterprises of Karachi. (2) Haji Behram Khan of Karachi. (3) Haji Khan of Bara Market. (4) Akhtar Jamali, S.P.O. Custom House, Karachi. The facts as stated by the prosecution are as follows: ' "Brief facts of the case are that on receipt of credible information that malpractices allegedly occurred in the export of WRSM Trading Company, Dubai, supplied by M/s. Rice Export Corporation of Pakistan Ltd., Karachi through their Agent namely M/s. Sunny Enterprises, Hakimsons Building, West Wharf Road, Karachi. The consignment in question was apprehended at its destination at Dubai. From the consignment prohibited material was discovered in some of the rice packets of Rice Export Corporation of Pakistan Ltd., Karachi. ' On receipt of above information enquiry No,13/85, dated 17-4-1985, F.I.A., E.E. Wing was registered. During the preliminary enquiry the facts revealed that 90 M. Tons of packed rice crop 1984-85 in 4500 cartons were shipped vide Bill of Lading No,1, dated 1-4-1985 (Shipping Bill No,49762, dated 14- 3-1985 in favour of WRSM Trading Company, Dubai, per m.v. "COMPANIA". On arrival of the consignment some packets of contraband narcotics substance were detected by Dubai Authorities. The above facts disclosed offence under section 156(1)(8) of 'Customs Act, 1969, read with section 10 of Dangerous Drugs Act (Act-II, 1930) and section 3/14 Prohibition of Hadd Ordinance, 1979. Hence, this case was registered vide case F.I.R. No,21/85 dated 22-4-1985 and investigation started. ' Strenuous efforts were made to trace out Abdul Saeed stated to be the Proprietor of M/s. Sunny Enterprises, Karachi but upto writing of this report, he is absconding and still not traceable. He has gone underground. ' During the course of investigation, it is learnt that M/s. Shakil & Sons located at IV-B-2/9, Nazimabad, Karachi, also indented from M/s. Rice Export Corporation, Karachi for export of Basmati Rice Crops 1984-85 (18 M. Tons packed in 900 cartons) which was shipped vide Bill of Lading No,3, dated 18-3-1985 (Shipping Bill No,49987, dated 16-3-1985) per m.v. "CONCIENCE" through M/s. Shahzad Enterprises, 112, Commerce Centre, Karachi, the Handling Agent of M/s. Rice Export Corporation of Pakistan Ltd. , Karachi, to M/s. Star Board Ltd., London. During the investigation it transpired that accused Shakil Ahmed had rented Bungalow No,43, Street No,17, Khayaban-e- Mujahid, Phase-V, Defence Housing Society, Karachi, from its landlady Razia Khanam through broker Muhammad Shafi under arranged deed, while he (accused Shakil Ahmed) was accompanied by accused G.M. Haleem. The contraband narcotics were brought to and stored in the same bungalow by accused Syed Shakil Ahmed. On 17-3-1985 accused Hazrat Saeed, owner of Truck No,LS-4779 driven by Sher Afzal son of Abdul Rasheed brought the truck to the above said bungalow loaded with 300 cartons of R.E.C.P. Basnati Rice, where accused Hazrat Saeed and Chowkidar Syed Aftab Shah son of Muqaddar Shah at the bungalow unloaded sixty Master Cartons of rice and substituted the same by sixty other cartons, containing narcotics. The truck was driven
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away to Keamari Harbour by Driver Sher Afzal accompanied by accused Hazrat Saeed. Driver Sher Afzal drove the truck to Keamari where it was unloaded and put in the Container Yard. The cartons containing narcotics were got stuffed in the containers of W.R.S.M. Trading Company, Dubai and shipped by m.v. "COMPANIA". At Dubai the contraband narcotics were intercepted by Dubai Authorities from the Rice consignment received from Pakistan. ' Accused Ghulam Muhammad, M. Ashraf and Muhammad Rafiq are employees of Sunny Enterprises, Karachi owned by absconding accused Abdul Saeed. They indent rice from R.E.C.P. For shipment to Dubai for WRSM Trading Company, Dubai. ' Accused Nooruddin and Choudhry Muhammad Afzal have abetted the offence by printing R.E.C.P. Master Cartons and one K.G. Packets, respectively for accused Shakil Ahmed. The cartons and packets printed by them resembled the cartons and packets of the Rice Export Corporation of Pakistan without any order or authority from the R.E.C.P. ' The gang of smugglers involved in this case is linked to international narcotics smugglers. Huge quantity of more than one ton of narcotics has been smuggled in the instant case from Pakistan to Dubai. The investigation in the present case is very tedious as some accused have gone underground. Investigation is also to be conducted at Dubai to connect the links properly. ' Accused Hazrat Saeed and Syed Aftab Shah have confessed their guilt before 1st Class Magistrate. ' As the investigation has not so far been completed, Interim Charge Sheet is being put up as from the facts so far collected it appears that an offence punishable under section 156(1)(8) of Customs Act, 1969 has been committed by the accused. ' Final charge sheet shall be submitted in the case as soon as the investigation is completed. (Sd.) (9-5-1985) (Syed Meraj Rasool), Assistant Director, F . A , E.E. Wing, Karachi. ' A list of the following accused was filed with the Special Court of Customs and Taxation: (1) Syed Shakil Ahmed (2) G.M. Haleem. (3) Syed Aftab Shah. (4) Syed Hazrat Shah. (5) Ghulam Muhammad. (6) Muhammad Ashraf. (7) Muhammad Rafique. (8) Nooruddin. (9) Ch. Muhammad Afzal. (10) Noor Ahmad Abbasi. ' These persons were arrested on various dates between 23-4-1985 and 30-4-1985 under No,21 of 1985 which was transferred for trial before the Special Military Court No,18 on 3-4-1985. Respondent No,3 submitted the final charge sheet before the Special Military Court in which the names of Noor Ahmad Abbasi S.P.O. Customs, Malik Manzoor Ahmed Inspector, R.E.C.P., Nazir Ahmad Inspector R.E.C.P. At Karachi, Muhammad Alam proprietor of Shazad Enterprises the handling agent of R.E.C.P., Muhammad Sharif the clerk of Premier Mercantile Service were added as accused. The names of Abdul Saeed Proprietor of Sunny Enterprises and Ghulam Muhammad and Muhammad Ashraf who were its employees were dropped from the charge-sheet. Another charge-sheet, dated 19-10-1985 was submitted by F.I.A. Before the Special Military Court in which the names of Gerald Nazreth, Karachi, Sabur-ur Rehman and Syed Shamim Shah were mentioned for the first time. Out of 18 accused only seven were shown in list as persons sent for trial. Before the Special Military Court
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only charge-sheet No,21 of 1985 was presented under the Authority of Martial Law Administrator. In this charge sheet the following six persons were made accused: (1) Sabur-ur-Rehman petitioner in Petition No,1219/88. (2) Syed Shakil Ahmed. (Petition No,309/88). (3) G.M. Haleem (Petition No,1633/87). (4) Syed Aftab Shah. (5) Syed Hazrat Shah. (6) Syed Nasim Shah (Petition No,193/89). ' The charges framed against the accused persons were as follows: CHARGE SHEET ' Civilian accused (1) Sabur-ur-Rehman s/o Habibur-Rehman, (2) Syed Shakil Ahmed s/o Muhammad Ahmed, (3) G.M. Haleem s/o A.B. Haleem, (4) Syed Aftab Shah alias Juna s/o Muqadar Shah, (5) Hazrat Syed Shah s/o Ayub Shah, (6) Syed Nasim Shah s/o Hassan Shah all residents of Karachi are jointly charged with: {{TABLE}} First charge under section 10 Illegal export of dangerous of Dangerous Drugs Act 1930 drugs out of Pakistan, in that r/w CMLO-77 (Against Accused they, Nos.1 and 2 only) On or about 17 March, 1985 at Karachi in collaboration of each other and with abetment of the co- accused and others illegally exported 1045 Kgs. Dangerous drugs/others to Star Board Company, London by substituting the dangerous drugs in the consignment of packeted rice, loaded in vessel m.v. (COMPANIA) which consignment was apprehended at Dubai on 13 April 1985 and thereby committed the aforesaid offence. {{TABLE}} Second charge under section 21 of Dangerous Drugs Act 1930 r/w CMLO-77 and MLR-36 (Against Accused No,3 only) Abetment of illegal export of dangerous drugs; in that he, ' On or about 17 March 1985 at Karachi in collaboration with accused 1 and 2, and others abetted commission of illegal export of dangerous drugs by procuring charas, hiring Bungalow No,43, 17th Street, Khayaban-e-Ntujahid, Phase-V, D.H.S. Karachi for accused No,2 and took necessary steps to facilitate its eventual illegal export hence committed the aforesaid offence. {{TABLE}} Third charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,4 only) ' On or about 17 March 1985 at Karachi in collaboration with accused 1 and 2 and others abetted the commission of illegal export of dangerous drugs by packing in the packets and loading the same in truck owned by accused No,5 after substituting the same with packeted rice at B.No,43, 17th Street, Khayaban-e-Mujahid Phase-V, D.H.S. Karachi thus,' facilitated its eventual illegal export hence committed the aforesaid offence. {{TABLE}} Fourth charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,5 only) ' On or about 17 March 1985 at Karachi with collaboration of co-accused and others abetted the offence of illegal export of dangerous drugs/charas by accused Nos.1 and 2, by providing him transport, loading of charas from B. No,43, 17th Street, Khaban-e-Mujahid Phase-V, D.H.S. Karachi by substituting with the packeted rice, getting the same transported to Karachi Port thus facilitated its eventual illegal export hence committed the aforesaid offence. {{TABLE}}
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Fifth charge under section 21 Abetment of illegal export of of Dangerous Drugs Act 1930 dangerous drugs; in that he, r/w CMLO-77 and MLR-36 (against Accused No,6 only) ' Between 1983-1985 at Pakistan, UK. And Dubai abetted by planning, financing, supervising and facilitating the eventual illegal export of 1045 Kgs. Dangerous drugs/charas out of Pakistan hence committed'the aforesaid offence. {{TABLE}} Sixth charge under section Smuggling narcotic/charas out 156(1) (8) of Customs Act 1969 of Pakistan; in that they, r/w CMLO-77 (against Accused Nos.1 and 2 only) ' On or about 17 March 1985 at Karachi in collaboration with each other and with active abetment of the co-accused and others smuggled out of Pakistan 1045 kgs. Charas from Shakil and Company Pakistan to Star Board Company, London by substituting the charas in the consignment of packeted rice loaded in vessel m.v. "COMPANIA" which consignment was apprehended at Dubai on' 13 April 1985 hence committed the aforesaid offence. ' Seventh charge under section 156(1) (8) of Customs Act 1969 r/w CMLO-77 and MLR-36 (against Accused No,3 only) ' Abetment of smuggling of , narcotics out of Pakistan; in that he, ' On or about 17 March 1985 at Karachi in collaboration with co-accused and others abetted the commission of offence of smuggling by procuring charas, hiring Bungalow at Defence Housing Society (B 43, 17 Street, Khayaban-e-Mujahid Phase V, D.H.S. Karachi) for accused Shakil Ahmed and taking necessary steps to facilitate its eventual smuggling hence committed the aforesaid offence. {{TABLE}} Eighth charge under section Abetment of smuggling of 156(1) (8) of Customs Act 1969 narcotics out of Pakistan; in r/w CMLO-77 and MLR-36 that he, (against Accused No,4 only) ' On or about 17 March 1985 at Karachi in collaboration with co-accused and others abetted the smuggling of narcotics by packing charas in Bungalow No,43, 17 Street, Khayaban-eMujahid Phase-V, Defence Housing Society, Karachi and loading the same in truck of accused No,5 by substituting the same with packeted rice thus facilitated its smuggling hence committed the aforesaid offence. {{TABLE}} Ninth charge under section Abetment of smuggling of 156(1) (8) of Customs Act 1969 narcotics out of Pakistan; in r/w CMLO-77 and MLR-36 that he, (against Accused No,5 only) ' On or about 17 March 1985 at Karachi abetted the commission of offence of smuggling by accused Nos.1 and 2 and others by providing his transport, loading the charas from Bungalow No,43, 17 Street, Khayaban-e-Mulahid Phase-V, D.H.S. Karachi by substituting with the packeted rice, getting the same. Transported to the Karachi Port thus facilitated its eventual smuggling hence committee the aforesaid offence. ' Tenth charge under section 156(1) (8) of Customs Act 1969 r/w CMLO-77 and MLR-36 (against Accused No,6 only) ' Abetment of smuggling of narcotics out of Pakistan; in that- he, ' Between 1983-1985 at Pakistan, UK and Dubai, abetted by planning, financing, supervising and facilitating the eventual smuggling of 1045 kgs. Charas out of Pakistan hence committed the aforesaid offence.
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' The Special Military Court No,18 was constituted by the Martial Law Administrator Zone 'C' under MLOs 266, 274 and 283 which tried all the six accused jointly. The trial commenced on 3-11-1985, the sentence was pronounced on 19-12-1985 and promulgation of sentence effected from 28-12-1985. Out of 84 witnesses cited by the prosecution 45 were examined. It has been alleged that confession of the accused implicating himself and other accused was obtained by coercion and threat. The accused however filed a written statement before the Special Military Court retracting from the confession. During the trial the Martial Lain Administrator Zone 'CI passed an order, dated 8-12-1985 making applicable the provision of Article 11 of the President's Order No,4 of 1982 to the proceedings of the present case. This order was passed in exercise of power under CMLO 4(5) as amended by CMLO 97. It has been alleged that this order is mala fide, unconstitutional, illegal and void. A joint application to the Special Military Court pointing out the 'illegality and inapplicability of Article 11 was filed and it was requested that the matter may be referred back to the Convening Authority under Rule 141 of the Army Rules but the Court refused to do so. The prosecution concluded its evidence on 11-12-1985. On that date the Court ordered that the accused can examine their witnesses provided they were present in Court on 12-12-1985. According to the petitioners this action was against the principle of natural justice as no opportunity to defend was provided to the accused. The Special Military Court assembled on 18-12-1985 and deliberated on the findings. It unanimously observed that F.I.A. Had committed irregularities during investigation. However on 19-12-1985 the President of Special Military Court announced decision convicting the accused as follows: ' 'The Court now sentence civilian accused No,1 Sabur-ur-Rehman son of Habibur Rehman as under: (a) Suffer rigorous imprisonment for 14 years (fourteen years) (b) Confiscation of all movable and immovable property. (c) Fined Rs,5,00,000 (Rupees five lac only) in default to suffer rigorous imprisonment for two years. ' The Court now sentence civilian accused No,2 Shakeel Ahmed son of Muhammad Ahmed as under:-- (a) To suffer rigorous imprisonment for 14 years (fourteen years) (b) Confiscation of all movable and immovable property. (c) Fined Rs,2,00,000 (Rupees two lac only) in default to suffer rigorous imprisonment for one year. ' The Court now sentence civilian accused No,3 G.M. Haleem son of A .B.A. Haleem as under:-- (a) To suffer rigorous imprisonment for fourteen years. (b) Confiscation of all movable and immovable property. (c) Fined Rs,5,00,000 (Rupees five lac only) in default to suffer rigorous imprisonment for two years. ' The Court now sentence civilian accused No,4 Aftab Shah June son of Muqadar Shah as under: ' To suffer rigorous imprisonment for 5 years (five years). ' The Court now sentence civilian accused No,6 Nasim Shah son of S.Hasan Shah as under: (a) To suffer imprisonment for life (25 years). (b) Fined Rs,20,00,000 (rupees twenty lac only). (c) Confiscation of all movable and immovable property." ' We have heard Mr. I.A. Hashmi, Mr. Rashid Akhund, Mr. Mujib Pirzada, and Mr. Mukhdum Ali Khan Advocates for the petitioners and Mr. Umer Qureshi Advocate and Mr. Muhammadally A.A.-G. For the respondents. ' Before dealing with the contentions raised by the learned counsel for the petitioners we may observe that the petitioners have challenged conviction by Special Military Court which was passed before lifting of the Martial Law land was saved by Article 270-A. The grounds for challenging such order and conviction have been set out in Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 where it was observed as follows:
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'Taking into account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'constitutional deviation., it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not takd away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in tact and malice in law.' ' While holding that Martial Law Order 107 cannot be treated as one possessing the status of an extra constitutional legislation, it was observed: "In my opinion, for the disposal of the issue before us nothing turns on the omission of the word 'duly' or addition of the word 'properly' in paragraph 4, ibid. A careful reading of this paragraph would show that the words 'previous operation' as occurring therein furnish the test for determining the kinds of acts, actions, obligations, liabilities, penalties, punishments or proceedings which fall within its ambit. Acts, actions or proceedings which could not be treated as relatable or having nexus with the 'previous operation' of the Martial Law Orders and Regulations would hardly fall within the protection offered by this paragraph. As observed by Kaikaus, J., in Abdur Rauf v. Abdul Hamid Khan PLD 1965 SC 671 no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute. Apart from that, in view of the assurance given to the citizens by Article 4 of the Constitution, such acts, actions or proceedings which suffered from lack or excess of jurisdiction or were mala fide or were coram non judice could not conceivably be regarded as done, taken or held in connection with the previous operation of a Martial Law Regulation or Martial Law Order. It is also doubtful if the said assurance could be circumvented by ex post facto sub-constitutional legislation by validating acts or proceedings which were patently illegal at the time they were performed. It is difficult to believe, in the absence of clear words to the contrary, that by paragraph 4 it' was intended to legalise them also." ' The learned counsel for the petitioners contended that as the Special Military Court was not properly constituted the entire proceedings were corum non judice. The question before us is whether the Special Military Court was constituted under MLO 4 or President's Order 4 of 1984. MLO 4 was promulgated on 5th July, 1977 by the Chief Martial Law Administrator which established Military Courts of Criminal Jurisdiction viz. (1) Special Military Courts, and (2) Summary Military Courts. Under para. 2 the Military Courts were vested with jurisdiction to try and punish any person for offence under any Martial Law Regulation, Martial Law Order or under any of the specified laws including the Customs Act 1969, Dangerous Drugs Act.. 1930 and Drugs Act 1976. The Martial Law Administrator was empowered to convene and constitute Special Military Courts. The constitution of Special Military Court is provided by para. 5 which runs as follows:- (5) A Special Military Court shall be convened and constituted in the same manner, and shall exercise the same powers and follow the same procedure as that of a Field General Court Martial convened and constituted under the Pakistan Army Act, 1952, and the provisions of that Act and Rules made thereunder shall apply to and govern all such proceedings: ' Provided that-- (a) Any person exercising the powers of a Magistrate of the first class or of a Sessions Judge may be appointed a member of the Court; (b) The Court may pass any sentence authorised by law or by these Regulations; (c) All sentences of death and amputation of hand shall be confirmed by the Chief Martial Law Administrator;
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(d) Recording of a' summary of evidence, if deemed necessary, may be dispensed with in a case and in lieu thereof an abstract of evidence may be recorded. (e) It shall not be necessary that the prosecutor be a person subject to the Pakistan Army Act, 1952. Any officer of the Armed Forces of Pakistan, or of Police Force or a public prosecutor or a lawyer may be appointed as a prosecutor. (f) Where in a case, a Martial Law Administrator deems expedient, he may, by order in writing, direct that the provisions of Article II of the President's Order No,1V of 1982 shall apply to such case with effect from the date as specified in' the order whether preceding or succeeding the date of that trial." ' The Special Military Court is to be constituted in the same manner as the Field General Court Martial is constituted under the Pakistan Army Act 1952. We now refer to the relevant provisions of the Army Act which are reproduced as follows: "Section 87. Composition of Field General Court Martial.--A Field General Court Martial shall consist of not less than three officers." ' The word 'officer' has been defined by section 8(12) as follows: -- "Section 8(12): 'officer' means a person commissioned, gazetted or in .Pay as an officer of the Pakistan Army and includes:-- (i) an officer who being a citizen df Pakistan holds a commission in Her Majesty's Land Forces, but does not include a junior commissioned officer; and (ii) in relation to a person subject to this…
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