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Petitioner: SATAR GUL AND Another VS Respondent: MARTIAL LAW ADMINISTRATOR, ZONE `B', N: W. F. P., JUDGMENT
Court Name: Peshawar High Court Judge(s): Shahnawaz Khan, Abdul Hakim Khan, Sardar Fakhre Alam Title:SATAR GUL AND Another vs MARTIAL LAW ADMINISTRATOR, ZONE `B', N: W. F. P.,
JUDGMENT
Reported As: PLD 1979 Peshawar 119 Result: Petitions accepted Judgment JUDGMENT ABDUL HAKEEM KHAN, C. J.-This order will also dispose of Writ Petitions Nos. 97, 286, 152, 258, 287 and 331 of 1979; 530 of 1978 and 277, 294, 322, 343, 342, 334, 387 and 320 of 1979, as questions of law on which the present petition (Writ Petition No. 98 of 1979) is to be disposed of, also arise in the aforementioned petitions. It may be added that in some cases, as the sequel will show, questions of facts are also common and the petitioners have identical grievances. 2. Period-wise classification of the writ petitions is as follows:- "Cases in which offences were allegedly committed before the imposition of Martial Law on 5th of July 1977 (hereinafter called Pre-Martial Law cases). (1) Present Petition, i.e. W. P. No. 98 of 1979 (Sattar Gul etc. v. M. L. A., Zone B, N.-W. F. P., Peshawar and others). (2) W. P. No. 97 of 1979 (Rashid Ahmad Khan v. M. L. A., Zone B and another). (3) W. P. No. 286 of 1979 (Gulzar Ahmad Khan and others v. S. M. C. No. 7, Peshawar and others). (4) W. P. No. 287 of 1979 (Muhammad Zubair v. P. S. M. C. No. 7 and others). (5) W. P. No. 331 of 1979 (Dayar Khan v. P. S. M. C. No. 7, Peshawar and others). (6) W. P. No. 530 of 1978 (Abdul Wali Shah v. P, S. M. C. No. S, Mardan). Cases in which offences were allegedly committed before the imposition of Martial Law and partly after the imposition of Martial Law (hereinafter called Pre- to Post- Martial Law cases): (1) W. P. No. 277 of 1979 (Zakirullah Khan v. S. M. C. No. 15 and others). (2) W. P. No. 152 of 1979 (Zafeer Gul v. P. S. M. C. No. 7, Peshawar).
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(3) W. P. No. 258 of 1979 (Saifullah Khan v. Major Nasirullah and others). Cases in which the offences were allegedly committed after the imposition of Martial Law (hereinafter called Post Martial Law cases): (1) W. P. No. 294 of 1979 (Noor Muhammad v. D. M. L. A., etc). (2) W. P. No. 322 of 1979 (Muhammad Saeed and five others v. P. S. M. C. No. 3, Kohat). (3) W. P. No. 343 of 1979 (Abdul Waheed v. P. S. M. C. No. 13, Peshawar and others). (4) W. P. No. 342 of 1979 (Abdul Karim v. M. L. A., Zone B and another): (5) W. P. No. 334 of 1979 (Abdus Sattar v. P. S. M. C. No. 13, Peshawar and others). (6) W. P. No. 387 of 1979 (Habibullah etc. v. M. L. A., Zone B and others). (7) W. P. No. 320 of 1979 (Fazlur Rehman v. M. L. A., Zone B)." 3. The petitioners of the three Pre- to Post- Martial Law cases, i.e. W. Ps. Nos. 277, 152 and 258 can be grouped together with the petitioners of Pre-Martial Law cases i.e. W. Ps. Nos. 98, 97, 286, as they are being accused of offences of similar type, arising of course 'from different transactions. In W. Ps. Nos. 287 and 331 (Pre-Martial Law cases), the petitioners are being accused of offences, arising out of the same transaction. As far as W. P. No. 530 of 1978 (Pre-Martial Law case) is concerned, it is a separate case. All the Pre-Martial Law cases are now pending in the Military Courts. As far as Pre- to Post- Martial Law cases are concerned, all the three, i.e. W. Ps. Nos. 227, 152 and 258 are by persons who have been convicted and sentenced as follows:- (a) Zakirullah petitioner in W. P. No. 277 of 1979: To one year R. I. And a fine of Rs. 1,00,000, under section 409/418, P. P. C. ; (b) Zafeer Gul and Saifullah petitioners in W. P. No. 132 of 1979 To one year R. I. And a fine of rupees twenty lacs each. (e) Saifullah Khan petitioner in W. P. No. 258 of 1979 To one year R. I. And a fine of Rs. 20,000. In the Post-Martial Law cases, Writ Petition No. 294 is a case, which is still pending in the Military Court, while the petitioners in the rest have been convicted and sentenced as follows :- (a) Muhammad Saeed, Muhammad Iqbal, Malik Saurang, Muhammad Ali, Muhammad Alam and Khushal Khan petitioners in W. P. No. 322 of 1979. To one year R. I. And a fine of Rs. 3,000 each under section 506/114, P. P. C.; (b) Abdul Waheed petitioner in W. P. No. 343 of 1979: To one year R. I. And a fine of rupees one lac under section 23/27 of the Drugs Act ; (c) Abdul Qadeer and Abdul Wahid petitioners in W. P. No. 342 of 1979; To one year R. I. And a fine of rupees one lac each under section 23/27 of the Drugs Act ; (d) Abdus Sattar petitioner in W. P. No. 334 of 1979: To one year R. I. And a fine of rupees one lack under section 23/27 of the Drugs Act ; (e) Faizullah, Ziaullah and Habibullah petitioners in W. P. No. 387 of 1979 Faizullah to one year R. I. And a fine of Rs. 25,000. Ziaullah to on- year R. I. And a fine of Rs. 25,000. Habibullah to one year R. I. And a fine of Rs. 1,00,000. under section 23/27 of the Drugs Act; and (f) Fazlur Rehman petitioner in W. P. No. 320 of 1979: To one year R.1. And a fine of Rs. 50,000 under section 23/27 of the Drugs Act." 4. In this context it will be useful to notice those writ petitions in which the accused/convicts have had to face a similar charge or charges before the Summary Military Courts. The first group of cases is covered by Writ Petitions 98, 97, 286, 152 and 258 and the second group Comprises Writ Petitions 287 and 331, still pending with the Summary Military Courts and the third group comprises Writ Petitions 343, 342, 334, 387 and 320 of 1979, where petitioners have been convicted by
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Summary Courts under section 23/27 of the Drugs Act. It may be added that the other grit petitions are of diverse nature and cannot be grouped together. 5. The background of the case in the first group is common. The Agricultural Development Authority of the Government of N: W. F. P. (hereinafter to be called the A. D. A.) received imported as well as indigenous fertilizers for ultimate sale to the farmers and towards the end of July/August 1974, the A. D. A. Appointed Principal Agents and Special Agents in the North-West Frontier Province. National Farm Guide Trust of Pakistan at Peshawar, working under Bashir Ahmad Khan (petitioner in W. P. No. 97 of 1979) was one of the Principal Agent of A. D. A., the other being Pakistan National Oils (hereinafter to be called PNO), Daur Corporation Ltd., Peshawar (hereinafter to be called DCL) and Sarhad Rural Supply Corporative Corporation (hereinafter called SRSCC). The Principal Agents were to distribute fertilizers supplied by the A. D. A. To the farmers through their authorised Dealers. The share of the Principal Agents was as follows :- For the distribution of the remaining 25% share, the A. D. A. Appointed (1) Gul & Co. Peshawar, (2) Khyber Fertilizer Corporation, Takht Bai, (3) General Trading Company, Nowshera, and (4) People Farm Service, Lahore, at Peshawar, as their agents to sell the fertilizers to farmers directly as also through their sub-dealers at various places in the N.-W. F. P. On 19th December 1975, the Government of Pakistan announced reduction of 12 % in the sale price of all kinds of fertilizers and undertook to compensate the stockist. Official teams were sent to check the claims and the agents got rebate through cheques. One such cheque was issued for Rs. 1,1086 in the name of Saifur Rehman on 16-1-1976 and be realised it before the imposition of Martial Law. 6. It appears this led to the registration of F. I. R. No. 144 of 16-8-1977, and in the result Zafeer Gul writ petitioner in 152 and Saifullah Khan writ petitioner in No. 258 were booked. But when the case against them was being investigated, it transpired that the writ petitioner& in Nos. 97, 98 and 286 had also embezzled the price of fertilizers sold an3, therefore, permission under section 156 Cr. P. C was obtained and when it appeared clear that they had also fraudulently received rebate, by forging certain documents, F. I. R. No. 823 was registered on 24-10-1977. The amount embezzled by Zafeer Gul (writ petitioner in No. 152 of 1979) was found to be Rs. 9,97,500 (actual price of 15000 bags of fertilizers) and this embezzle--ment had taken place between the period 1-6-1977 to 3rd of August 1977. As far as writ petitioners in No. 98 of 1979, namely, Sattar Gul and Zafeer Gul and Rashid Ahmad Khan in W. P. No. 97 of 1979 are concerned. a reference to the charge-sheet on page 12 of this writ petition will show that they, along with others, are being Wed jointly on the following charges and for offences committed in December 1976: "Sattar Gul and Zafeer Gul, for an offence under section 473, P. P. C. For counterfeiting the seal of Saifur Rehman for the purpose of cheating ; Sattar Gul, Saifullah and Muhammad Khan for an offence under section 468, P. P. C., for forgery by preparing bogus documents in respect of refund of rebate on fertilizers worth Rs. 11,086.61 ; Saifullah Khan, Muhammad Khan. Rashid Ahmad, Sattar Muhammad, Gulzar Muhammad, Gul Hashim and Muhammad Hussain under section 5(2) of the Prevention of Corruption Act for obtaining the Government money by corrupt and illegal means." Again charge-sheet on page 8 in Writ Petition No. 286 of 1979 will show that the writ petitioners in that case, namely Gulzar Muhammad Khan, Muhammad Khan, Sattar Muhammad Khan and Mir Alam Khan were being charged as follows:- "Gulzar Muhammad Khan and Muhammad Khan under section 468, P. P. C. For committing forgery by making false entries in the Registers in the year 1976-77 and thereby misappropriating 2844 bags of D. A. P. Fertilizer and 637 bags of Urea valued at Rs. 2,48,084. Haji Mir Alam Khan under section 411, P. P. C. For dishonestly receiving misappropriated property on 2-6-1977 valued at Rs. 1,31,256,
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Sattar Muhammad Khan under section 109, read with section 468, P. P. C., for abetting the commission of the forgery, as aforesaid, Gulzar Muhammad, Muhammad Khan and Sattar Muhammad, under section 409, P. P. C., for committing criminal breach of trust with, respect to fertilizer bags worth Rs. 3,28,084. Gulzar Muhammad, Muhammad Khan and Sattar Muhammad under section 5(2) of the Prevention of Corruption Act, 1947, for having committed criminal misconduct in respect of fertilizers and Urea worth Rs. 2,48,084." 7. In the second group Writ Petition No. 287 has been moved by Muhammad Zuber and No. 331 by Dayar Khan. Both these persons, are being tried in pursuance of F. I. R. No. 331, dated 19-9-1971, on the allegation that Muhammad Zuber, contractor supplied 22 air-conditioners on 30-6-1971 for installation in the Agricultural Farm Building at Pir Sabaq, Nowshera after purchasing each unit at the cost of Rs. 7,005 from Bara but charged Rs. 14,555 from the Government for each. The offences with which both the petitioners are being charged are under sections 156(89) and 167 of the Customs Act, 420, 468, 471 and 40) of Me P. P. C. And 5(2) of the Prevention of Corruption Act. It may be added that the air-conditioners supplied by Muhammad Zuber have been confiscated and a penalty of Rs. 25,00,000 has been imposed upon him by the Deputy Collector (Customs), Peshawar. The appeal against the aforementioned order is, however, pending with the Collector (Customs), Peshawar. 8. Third group of cases relates to Post-Martial Law offences under section 23/27 of the Drugs Act in respect whereof Summary Military Courts have already recorded convictions and sentences: (i) W. P. No. 343 of 1979 is by Abdul Wahid and W. P. No. 343 by father of Abdul Qadeer to question the validity of convictions and sentences of Abdul Wahid and Abdul Qadeer by the Summary Military Court, under section 23/27 of the Drugs Act on the charges that they sold spurious drugs. Each one of them was sentenced to one year R. I. And a fine of rupees one lac. (ii) In W. P. No. 342 of 1979 Abdul Karim father of Abdul Qadeer has questioned the validity of conviction and sentence passed by the Summary Military Court under section 23/27 of the Drugs Act against his son. (iii) In W. P. No. 334 of 1979, Abdus Sattar Proprietor Zam Medicos Rehmat Market, Bajori Gate, Peshawar, has been convicted and sentenced to one year R. I. And a fine of Rupees one lac under section 23/27 of the Drugs Act for having been found in possession of spurious drugs. (iv) In W. P. No. 387 of 1979, Faizullah and two others have been convicted and sentenced under section 23/27 of the Drugs Act, read with section 434 of the P. P. C. Habibullah to one year R. I. And a fine of rupees one lac, Ziaullah to one year R. I. And a fine of rupees twenty-five thousand; and Faizullah to one year R. I. And a fine of rupees twenty-five thousand, on the allegations that they were found in possession of spurious drugs on 10-8-1978. (v) In W. P. No. 320 of 1979. Fazlur Rehman has been convicted and sentenced under section 23/27 of the Drugs Act to one year R.I. And a fine of rupees five thousand for having been found in possession of spurious drugs on the 7th of October, .1978. 9. Cases which do not fall under any group are noticed in the sequel. (i) W. P. No. 530 of 1978 is by Abdul Wali Shah and the offences of which he is being accused fall under section 420/468/409, P. P. C. Occurrence took place between August, 1976 and April, 1977. The case against the petitioner is that he is a clerk in Habib Bank Ltd., Mardan and that he forged the documents whereby he got Rs. 23,100 fraudulently. He is to face trial before a Summary Military Court. (ii) W. P. No. 277 of 1979 has been moved by Zakirullah Khan, Chief Engineer, Mechanical, Khazana Sugar Mills, against his conviction and sentence of one year R. I. And a fine of rupees one lac under section 409/418, P. P. C., for committing criminal breach of trust in the sum of Rs. 33,285.08 meant for full time wages payable to the subordinates and cheating with the knowledge that wrongful
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loss would be caused to the Mills, though it was his duty to protect the interest of the Mills. The first offence was committed between July, 1977 to May, 1978 and second during 1976-77 (presumably the Financial year). (iii) Writ Petition No. 294 of 1979 has been moved by Noor Muhammad and seven others, against the order, whereby they were ordered to be tried by a Summary Military Court as against the usual practice of being tried by the Special Judge. All of them have been charged for smuggling foreign goods on 15-2-1979, without payment of customs duty under section 156(89) of the Customs Act. Three of them, namely, Noor Muhammad and Ruhullah and Said Rehman have been further charged under section 156(89) of the Customs Act for smuggling foreign goods and being found in possession of sanitary goods, cloth, vehicles, spare parts, etc. For which no customs duty was paid, on the above-mentioned date at Sarai Miran Bana Mari. (iv) W. P. No. 322 of 1979 has been moved by Muhammad Saeed and five others to question the validity of their convictions and sentences under section 506/114, P. P. C. To one year R. I. And a fine of Rs. 3,00) on the allegations that they threatened one Munawar Khan who turned an approver in the murder case of two young sons of Major Raqiqullah Shah. 10. It will be seen that W. Ps. 98, 97, 286, 152, 258, 277 and 530 are the cases triable by the Special Judge under the Criminal Law Amendment Act, 1958. W. Ps. 287 and 331 are partly within the jurisdiction of the Special Judge, under the Criminal Law Amendment Act, 1958 and partly of the Special Judge, under the Customs Act. W. Ps. 343, 342, 334, 387 and 219 are exclusively triable by the Special Court under the Drugs Act. So to speak except for .The W. P. No. 322 of 1979, which is a case triable by an ordinary Criminal Court, the rest are to be tried by Special Courts of exclusive jurisdiction under the ordinary law. 11. Writ Petitions, detailed in the first group relate to the offences, which were investigated pursuant to F. I. Rs. 144 of 16-8-1977; 823 of 24-10-1977 and 205 of 2-6-1977. These are cases, which were triable exclusively by the Special Judge, appointed under the Criminal Law Amendment Act, 1958, hereinafter called the Special Judge Criminal. The Minute Sheet which records sanction for trial of these cases by Summary Military Court is on page 155 of File No. 2006/ML/GAG (Vol. III), opened on 29-3-1978 and a reference to the same will show that a Captain of the DA GAG reported what follows:- A huge Government amount has been misappropriated during the last three years-by the agents of A. D. A. With the help of A. D, A. Officials. The loss caused to the Government runs in lakhs. The matter has already been brought to your notice by the concerned authorities. This matter has gained public importance because huge public money is involved. In the interest of the public at large and speedy disposal of these cases, sanction of M. L. A. For trial by a Military Court may be accorded. The Brigadier M. L. Thereupon observed that under the Rules, a case triable by a Special Judge cannot be tried by a Military Court, unless sanction is obtained and added proposal contained in para. 1 may be approved. Para. 1 refers to the report of the Captain. The note of Brigadier is dated 12September, 1978 and when it was before the M. L. A., he recorded the minute "para. 1 is approved". 12. As far as the cases in second group are concerned, some-offences whereof are exclusively triable by Special Judge Criminal and others by Special Judge appointed under the Customs Act hereinafter called Special Judge Customs, a reference to paras. 1 to 5 of the Minute Sheet of the A. A. G. (Legal), which is available on File No. PC/ML/Legal/353 will show that though D. M. L. A. (Sector 1) had decided that the case be tried by the Summary Military Court, Captain Ejaz Ahmad Mian, pointed out that M. L. A's. Specific orders were required under M. L. O. 61 for the expeditious disposal of the case, and furthermore sanction of the M. L. A. And Governor for trial of the case by Summary Military Court, for one of the accused, namely Diyar Khan happened to be a Gezetted Governmentth
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Servant. Brigadier M. L. Requested for the approval of the M. L. A. For trial in the Military Court of the two accused under M. L. O. 61 vide para. 6 of the Minute Sheet and he further prayed for sanction for the trial of Diyar Khan, XEN who was a Gazetted Officer, vide para. 7 of the Minute Sheet. The M. L. A. By his order, dated 15th of May, 1979 recorded the Minute "Proposals in paras. 6 and 7 are approved". 13. As far as cases of the third group exclusively triable by Special Court under Drugs Act are concerned, the Minute Sheet, appears on pages 56 and 57 of file ML/Legal 353, opened on 1st January, 1979. The A. A. G. (Legal) in paragraphs 5 and 6 of the Minutes submitted that cases arising out of F. I. Rs. Nos. 215, 152, 205 and 521 which relate to this group, recommended that the same be tried by the Military Court. He, therefore, prayed that M. L. A's sanction under M. L. O. 61 may be obtained and the Brigadier M. L. Endorsed the proposal and submitted it for approval. The Minute of M. L. A. Dated, 29-3-1979 reads "approved." 14. As far as Zakirullah, Mechanical Engineer, Writ petitioner in No. 277 of 1979 is connected, the Minute Sheet, available appear in between pages 12 and 13 of File No. PX/ML/Legal/364, marked, in red pencil. The subject of the Minute Sheet is "Trial of Khazana Sugar Mills cases by the Military Court". Minutes in paras. 1 to 8 need not be referred. In para--graph 9, the Brigadier ML-11, inter alia indicated that the views of the Law Secretary were that Zakirullah can be prosecuted under section 406/409/420, P. P. C. In the Military/Civil Court for unlawful gain derived by him. In paragraph 10, the Brigadier proposed that three officers, including Zakirullah, should be proceeded against departmentally and additionally Zakirullah be prosecuted in the Criminal Court for his criminal breach of trust and unlawful gain. In paragraph 11 Brigadier M. L. 11, however, recommended that Zakirullah be tried by the Military Court as there was sufficient evidence and similarly private firm which collaborated in the fraud of steel supplies should also be dealt with by a Militacy Court. The M. L. A. In the Minute, dated 1January, 1979 recorded "para. 11 is approved". The part, which he scored out, however, reads if we are to be trying one in a civil Court, it would be incorrect to try the other in the Military Court. They both" This case, it may be mentioned, was ordinarily triable by Special Judge Criminal. 15. As far as the writ petition of Noor Muhammad and 7 others (W. P. No. 294 of 1979) that the Minute Sheets are available on the file of ML/Legal/353 Part I, F. 1. R. 49 Smuggling case. The minute recorded by DA GAG in paragraph 5 of 12-3,1979 reads:- In this case famous smugglers are involved. There was exchange of fire between police and smugglers at a public place, which warrants the trial by a Military Court. The accused are nominated in the F. I. R. And smuggled items have been recovered from the house of the smugglers. It will be better if the case is tried by a Special Military Court so that maximum punishment for the offence, i.e. (10 years) can be given if offence proved. If M. L. A. Approves, a detailed pre-trial advice will be given by us on the case, for the guidance of the Court. The A. A: G., however, in para. 8 proposes that for sake of maintenance of law and order and expeditious disposal of this case in the public interest it is expedient that this case may be tried by Special Military Court under C. M. L. O. 61, read with paragraph 3(1) of C. M. L. O. 4 for which the M. L. A. May please accord approval. The Brigadier M. L. Recorded that "minute 8 above may please be approved". The minute of the M. L. A. Dated 18-3-1979, however, reads: "Para. 8 is approved. 7 Division has recommended Summary Military Court, Discuss with GOC, leave the option of Summary versus Special to him." Paragraph 10 of the Minute Sheet shows that the Col. Staff 7 Division, indicated that they wished to try the case in a Summary Military Court. This is why the case has been sent to the Summary Military Court. It may be mentioned here that this case was ordinarily triable by Special Judge Customs a Court of exclusive jurisdiction. It is also noteworthy that offences under sections 307 andst
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others of P. P. C. Of which these accused were charged have been left out and shall continue to be prosecuted in the ordinary Courts of criminal jurisdiction. 16. Before embarking upon a detailed discussion of the law points that arise in the present petitions, it will be necessary to advert to the authorities of the Supreme Court which should clarify all doubts, regarding the powers of this Court, as respects judicial reviews of the executive actions and the limits that have been laid down by the Supreme Court of Pakistan, within which executive can work. At page 716 in Begum Nusrat Bhutto v. Chief of Army Staff, etc. (PLD 1977 SC 657), his Lordship the Chief Justice of Pakistan, has, on the point of judicial review, observed: (v) That the 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 stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presi--dential Order or Ordinance. The last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposi--tion that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus popull suprema lex, the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, Legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for reason that these two organs of the State had lost their constitutional and moral authority in the circumstances…
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