MUHAMMAD SAEED AZHAR vs MARTIAL LAW ADMINISTRATOR, PUNJAB AND Other

ORDER

1. ANWAR UL HAQ, C. J.-The petitioner Muhammad Saeed Azhar seeks leave to appeal against an order made by a learned Judge of the Lahore High Court on the 21st of May, 1979, by which he has dismissed in limine a constitutional petition moved by the petitioner for the quashment of proceedings initiated against him under section 380 of the Pakistan Penal Code on the basis of a First Information Report made on the 14th of April, 1979, by a Japanese national to the effect that during his stay at the Ringo Bell Hotel, 57-McLeod Road, Lahore, a large amount of foreign currency as well as a radio belonging to him were stolen. The petitioner contended in the High Court that as proprietor of the hotel he was not in any manner, concerned with the theft, but he had been informed that his case would be put up for trial before a Summary Military Court, as ordered by the Martial Law Administrator, Zone `A'. The petitioner was arrested in connection with this case, but was later granted bail by a learned Magistrate at Lahore.

(a) There was no case at all against the petitioner as he was not named in the F. I. R., that no overt act had been attributed to him, and, as a matter of fact, the complainant himself had absolved him of all responsibility during the course of his statement recorded by a Magistrate under section 164 of the Criminal Procedure Code on 15-4-1979 ;

(b) In view of the enforcement of the Presidential Ordinance VI of 1979, all the Courts except the one established under that Ordinance had ceased to have jurisdiction over offences mentioned in the Ordinance, including the offence of theft ;

(c) The trial before a Military Court had certain jurisdictional require--ments, namely, expeditious disposal in the public interest and the need for the maintenance of law and order, but these requirements were not present in the instant case ; and

(d) The proceedings against the petitioner were the result of mala fides on the part of the local police.

2. All these contentions were repelled by the leaned Judge, with the result that the petition was dismissed in limine. The same contentions have been reiterated before us by Mr. Shaukat A.I , the learned counsel appearing for the petitioner.

3. We requested the learned Advocate-General, Punjab, to apprise us of the correct position as to whether a challan had been submitted against the petitioner, and whether it had been referred to a summary military Court for trial, as apprehended by the petitioner. After making inquiries from the relevant quarters, Mr. Aamer Raza informed us that challan had been submitted against an employee of the manager of the Hotel concerned, but no order had yet been made by any Martial Law Authority referring the case for trial to the Summary Military Court. He stated that the matter was still under examination.

4. As no order has yet been made referring the case to a summary military Court for trial, the question of examining whether the conditions prerequisite for such a reference are satisfied or not does not arise. The Court cannot undertake an academic exercise to examine the validity of an order whir& has not yet been passed by any Martial Law authority.

5. Similarly the contention that there is no case at all against the petitioner cannot be examined by this Court, nor could it be examined by the High Court, as the proper identity of the culprits concerned with the theft is a matter to be established by evidence, which can only be done at the trial. The statement said to have been made by the complainant under section 164 of the Criminal Procedure Code, which was read out before us by Mr. Shaukat A.I, does not appear to us to be conclusive on the point and it would be for the prosecution to establish its case by leading the necessary evidence. We only wish to point out that no finding can be given at this stage that the petitioner is not at all concerned with the matter as he is only the proprietor of the hotel.

6. The learned Judge in the High Court also appears to be right in taking the view that the question of the alleged mala fides on the par of the local police also requires factual investigation, which could not be undertaken by the High Court in the exercise of its writ jurisdiction.

7. As to the last contention that in view of the promulgation of offences. Against Property (Enforcement- of Hadood) Ordinance, 1979, all the Courts, other than those established under the Ordinance, have last jurisdiction to try an offence, of theft, the learned Judge in the High Court again appears to us to be right in observing that this Ordinance has not established any new hierarchy of Courts, in spite of the fact that section 3 thereof enjoins that the provisions of the Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. Ail examination of the various position of the Ordinance relating to the offence of theft, namely, sections 5 to 14, makes it clear that the Ordinance has applied the Islamic punishment of Hadd, as ordained by the Holy Qur'an and Sunnah to certain kinds of theft case the theft is found to be not liable to Hadd, etc., it shall be punished under the Pakistan Penal Code.

8. Under sections 23 and 24 of the Ordinance certain provisions of the Pakistan Penal Code and of the Criminal Procedure Code respectively have been made applicable to trial under the Ordinance ; and under section 25 thereof it has been provided that the Presiding Officer of the Court by which a case is triable, or an appeal is heard under this Ordinance shall be a Muslim, provided that if the accused is a non-Muslim, the Presiding Officer may be a non-Muslim. We have not been able to' discover any provision in the Ordinance setting up a special Court or Courts of exclusive jurisdiction for the trial of the offences made liable to the imposition of the Hadood as specified in the Ordinance. It follows, therefore, that these punishments can be awarded existing Courts of competent jurisdiction provided the other requirements spelt out in the Ordinance as regards the nature of the offence and the standard of proof are fulfilled. It is, therefore, not correct to say that the promulgation of this Ordinance the offence of theft has ceased to by the Courts established under the Criminal Procedure Code or the relevant Martial Law Regulations and Orders as at present obtaining in Pakistan: In any case, the Ordinance also makes it clear that in case the Hadd is not imposed then the offence would be punishable as provided in the Pakistan Penal Code.

9. For the foregoing reasons, the petition fails and is hereby dismissed.