KAZIM RAZA Versus GOVERNMENT OF SIND

1. JAMALUDDIN H. AHMAD, J .------Syed Kazim Raza and Naseeruddin Haider, the two petitioners in the above two petitions respectively, assailed the pro ceedings of the Summary Military Court at Karachi, which tried them together, and by its impugned order dated the 4th of January 1971, found them both guilty of the charges against them and consequently passed sentences against them as under ;-

2. Naseeruddin Haider to suffer six months' R. I., to pay fine of Rs. 25,000 and to suffer six lashes and Syed Kazim Raza to suffer three months R. I. and to pay fine of Rs. 25,0110 only. For properly appreciating the contentions raised in these petitions, it would be convenient to give a brief account of the facts and circumstances that led to the passing of the impugned order. Both Syed Kazim Raza and Naseeruddin Haider hereafter called the petitioners were Inspectors in the Directorate of Customs Intelligence at Karachi, and on the basis of some secret information that some consignments of silver were to reach Karachi, they made necessary arrangements for detection and investiga tion, which resulted in F. I. R. dated 6-2-61 against Fateh Muhammad and Abbas Ali. On 22-3-68 the final charge-sheet against these two persons was put up in the Court of City & Additional District Magistrate, Karachi, and the relevant part of the text thereof which reveals the whole investigation made by the two petitioners is repro duced hereunder :-----

3. "Information had been received that Fateh Muhammad son of Muhammad Ramzan (accused No. 1) was regularly receiving consignments of silver from up-country for smuggling out the same to Dubai through launches from New Fish Harbour. The information was closely followed and it was gathered on 4-2.68 that 4 parcels of silver had arrived at Karachi Cantt. Railway Station in the said party's name from Lahore by parcel train who were to take delivery of the same shortly. It was also gathered that more parcels of silver were on their way in the name of the same party. Accordingly, a watch was kept at the Railway Station by an Intelligence Officer.

4. On 5-2-68 at 1 p.m. another Intelligence Officer left the Directorate Office on receiving necessary menage and, picking up two independent Mashirs en route, reached Karachi Cantt. Railway Station where the partly lay in ambush. After scme time they observed the said Fateh Muhammad (accused No. 1) who was accompanied by Abbas Ali s/o Shah Zaman (accused No. 2) engaging taxi No. KAU-8918 and loading six heavy parcels in its dickey from the Railway Station Parcel Office. The taxi was then occupied by the above two accused persons which was followed by the Intelligence Officers and the Mashirs in one of the Officer's private car when the said taxi left the Railway Station. The taxi was followed to Sarrafa Bazar Karachi where it stopped for about an hour. During this time, the six parcels were unloaded by the two accused persons named above from the taxi, taken to a silver refining shop of the Sarrafa Bazar, opened, and a part comprising of old ornaments, of silver separated from each of the parcels. The orna ments were reloaded in the dickey of the said taxi which was again occu pied by the said accused. All this unloading, separation of part consign ments, and re-loading happened before the eyes of one of the Mashirs. when the taxi started on its onward journey with the six parcels of the silver and the said accused, it was again followed by the Intelligence Officers and the Mashirs. The said taxi entered the New Fish Harbour and halted near the sea shore where several fishing boats were moored. The said accused persons got down from the said taxi and unloaded four parcels one by one from its dickey. When they were trying to unload the remaining two parcels from the dickey, they were challenged and intercepted by the Intelligence Officers before the Mashirs. The contents of the six bundles were examined and silver bars and blocks were found therein. The two accused persons stand ing near the dickey of the taxi, and also the taxi driver were questioned, the six parcels of silver and the occupants of the taxi were taken into custody and a Mashirnama was prepared on the spot. The property recovered and the taxi and the said accused persons were brought to the Directorate Headquarters where the six bundles of silver were weighed before the Mashirs and a weighment Mashirnama prepared.

5. Fateh Muhammad (accused No. 1) and Abbas Ali (accused No. 2) were arrested for attempting to export silver, in contravention of-I. T. C. Notification No. S. R. O. II issued under section 3 of the Import and Export Trade Control Act, read with section 19 of the Sea Customs Act, punishable under sections 167 (8a) and 212. The silver was also seized, statements of the accused persons and the Mashirs were recorded. The F. I. R. was submitted in this honourable Court on -- 6-2-68 at 10 a. m."

6. But before this charge-sheet was submitted, on 19-2-68.one of the accused shown therein, i.e. Fateh Muhammad s/o Ramzan filed a direct complaint under section 409 read with 34, P. P. C. against both the petitioners in the Court of the Special Judge, Anti-Corruption, Central, at Karachi. This complaint was sent for enquiry to the Special Police Establishment and on 10-4-68 the Deputy Superintendent Police registered an F. I. R. on that basis. Fateh Muhammad alleged that movement of silver within Pakistan was neither controlled nor restricted and the rate at Karachi being higher than that pre vailing in the upcountry, one Haji Taj Din had sent three consignments of silver from Lahore for sale in the local market at Karachi. These three con signments were sent by passenger train and were shown as "silver". Two of the consignments weighing 3 maunds 10 seers and 3 maunds 8 seers each had been received at the Karachi Cantonment Station on Sunday the 4th of February 1968 while the third consignment weighing 3 maunds 10 seers was received on Monday the 5th of February, 1968. These three consign ments were duly entered at Nos. 80456, 80460 and 80461 in the inward delivery book maintained in the Office of the Parcel Clerk at the Railway Station. But when he went to take delivery of these consignments he was shown a writing in the delivery book to the effect that delivery of silver was to be made only in the presence of the Customs Inspector Naseer Haider and therefore the consignments were actually delivered only after the two petitioners arrived. The main features of the accusations against the petitioners were that they had secured a total of nine maunds and 28 seers of silver at the Cantonment Railway Station for which oral and documentary evidence existed, but they concocted a false story which was incorporated in the F. I. R. registered against Fateh Muhammad and another on 6-2-68. The petitioners did not specify the quantity of the silver actually secured, but the newspapers disclosed the quantity to be about 5 maunds. The complaint therefore was that silver worth about Rs. 70,000 had been misappropriated by the petitioners and that both of them had in furtherance of their common intention falsely imprisoned and detained the complainant and misappropriated approximately 4 maunds of silver, and had thereby committed offence under section 409/34, P. P. C.

7. In the events that followed the City and A. D. M. proceeded with the case against Fateh Muhammad and Abbas Ali and witnesses were examined during the period from 26-6-68 to 27-8-68. He framed a charge under sections 167 (8-A), 212 read with section 19 of the Sea Customs Act against them. But at that stage, this case was transferred from that Court for trial by Military Court by a letter from the Lt. Commander and Sub-Administrator, dated 10-9-69.

8. Thereafter this case was tried before Lt. Cdr. I. U. Choudhary, President of the Summary Military Court, who served them with the same charge as framed by the City and A. D. M., Karachi, but by an order dated 7-11-69 he acquitted them both, of the said charges. What was ordered further was that the silver seized from them was directed to be returned to them. On 19th January 1970 i.e. after two and a half months of the above-stated acquittal of Fateh Muhammad and Abbas Ali, sanction was given for pro secution of the two petitioners stating that the three consignments of silver duly awarded in the delivery book maintained at the railway parcel office were actually delivered to Fateh Muhammad broker in the presence of petitioner Naseer-ud-din Haider who had by abusing his official position, prepared false record i.e. the seizure memo dated f-2-68, showing recovery of silver of 5 maunds 6 seers and two chattaks at Fish Harbour from the six bundles which had been received by Fateh Muhammad from parcel office on 5-2-68 in his presence. He also prepared a false First Report dated 6-2-68, besides other record, falsely showing the recovery of silver at Fish Harbour. He had committed an offence punishable under section 409 and 120-B of the Pakistan Penal Code read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947. This sanction was given, for his trial for the said offence by the Special Judge, Central, Karachi. A similar sanction was given for the prosecution of Syed Kazim Raza also. In fact it was alleged that there was a criminal conspiracy between the two for committing breach of trust in respect of silver weighing 4 maunds 21 seers and 14 chattaks.

9. The trial of the two petitioners therefore commenced before the Special Judge, Central, Karachi, by reading out the substance of accusations on 8-5-70, to which both the petitioners pleaded not guilty. From 9-7-70 to 19-8-70 four prosecution witnesses were examined by the Special Judge, when by a letter dated 26-8-70, this case was directed to be transferred from that Court, for trial by a Summary Military Court, which is as under :----

10. "The Superintendent,

11. Special Police Estt.,

12. Karachi.

13. Sub ; Taking over of criminal case against Government Official by Martial Law Authorities-Customs Intelligence Inspectors Nasir Haider and G. K. Raza.

1. Fateh Muhammad s/o Muhammad Ramzan lodged a complaint in the above Court of Special Judge (Central), Karachi against the above two Custom Inspectors alleging that they have misappropriated 4 maunds of silver which was sent to him from Lahore. Investigation was taken up by Pakistan Special Police Estt. and a prima facie case was made out, on account of which Ministry of Home and Kashmir Affairs was moved to accord sanction for the prosecution of the above two Customs Inspectors.

2. This matter was taken up by former sector 7 with former H. Q. M. L. A., Zone 'A'.

14. As the trial of this case by a Military Court has been approved by the Chief Martial Law Administrator, you are, therefore required to submit all the relevant papers to this H. Q. to arrange the trial ab initio.

15. (Sd.) Lt. Col.

16. " For Administrator,

17. (S. H. Zafar)."

18. In the trial before the: Summary Military Court, 9 witnesses were examined for the prosecution and 6 for the defence, and in the result the impugned order dated 4-1-71 referred to above was passed and the two petitioners were found guilty. Except the sentence of six lashes passed against petitioner Syed Naseer-ud-din Haider the rest of the sentences passed in the impugned order were confirmed. However, the sentence of imprisonment of S. Naseer-ud-din Haider was remitted after he had served it out for about three months, and in the case of Syed Kazim Rata after he had served it out for one month and 7 days. With regard to the sentence of fine, the case of the petitioners was that it was sought to be recovered by the second res pondent i.e. District Magistrate of Karachi. It may also be mentioned that the revision petitions against their conviction filed by the petitioners, before the Martial Law Administrator, Zone 'D', were dismissed by the Governor of Sind by a short order dated 10th of may 1972, after the lifting of the Martial Law which was on 20-4-72.

19. The learned counsel for the petitioners attacked the proceedings as well as the order of conviction passed by the Summary Military Court as being without jurisdiction firstly on the ground that, the case against the petitioners which was pending before the Special Judge Central and in which some witnesses had also been examined, could not be legally transferred from that Court to the Summary Military Court, The cognizance of the case taken by the latter Court was therefore without any lawful authority.

20. Now on the date of the transfer of the case i e. 10-9-69, the law relating to the jurisdiction of the Criminal Courts, was dealt with in Martial Law Regulation No. 3 which was reconstituted on 28th of May 1969 by M. L. R. 45, and which read;

21. "Martial Law Regulation No. 3 issued by the Chief Martial Law Administrator, is hereby reconstituted and shall be deemed always to have been so reconstituted as follows;

22. No. 3: Notwithstanding any thing contained in these regulations the ordinary Courts, including a High Court, shall exercise their respective jurisdiction in respect of ---

(a) Offences other than offences created by these regulations ; and

(b) Cases relating to offences created by these regulations which are transferred to such Courts for trial." As the case of the petitioners was transferred to the Summary Military Court in August 1970, Mr. Khalid M. Ishaq submitted that, as the pro secution was for offences not created by Martial Law Regulations, the case could not have been transferred to a Military Court at all.

23. Mr. Farooqi, on the other hand, relied on Martial Law Regulation No. 42, which had been promulgated on 4-5-1969, and which read

24. "(1) A Zonal Martial Law Administrator may direct that any case or class of cases, under the ordinary law pending in any criminal Court, irrespective of whether the case or cases relate to after the imposition of Martial Law or whether trial has commenced or NOT, shall be transferred for trial to a Military Court specified by him and the Military Court shall try the case according to its own procedure. Where a case in which trial has commenced is transferred. the Military Court to which the case is transferred shall NOT, by reasons of such transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer, and may act on the evidence al ready recorded by or produced before the criminal Court from which the case has been transferred.

(2) .--------------------

25. Mr. Farooqi was right when he submitted that the case against the petitioners had been transferred under this Regulation, but M. L. lt. 3 had been reconstituted after the promulgation of M. L. R.

42. Now, on the plain language of M. L. R. 3, as reconstituted, it was retrospective, and Mr. Khalid M. Ishaq also relied on the words "notwithstanding anything contained in these Regulations ; accordingly learned counsel's submission was that M. L. R. 42 was inconsistent with and had been repealed by M. L. R. 3, as reconstituted.

26. In support of this submission, Mr. Khalid M. Ishaq relied on a judgment of the West Pakistan High Court reported in Malik Mir Hassan v. State (P L D 1999 Lab. 786.) and further submitted that this judgment was binding on us, as it was a Full Bench judgment. The question in this case, as in the instant case, was of the validity of the transfer of a criminal case from the Court o the Special Judge to a Military Court after the reconstitution of M. L. R. 3. and Mushtaq Hussain, J., observed at page 818 :-----

27. "On a plain reading of the reconstituted Regulation referred to above, it is clear that the criminal Courts, as by law established, will continue to exercise jurisdiction with respect to (a) offences other than offences created by these Regulations and ; (b) cases relating to offences) created by these Regulations, which are transferred to such Courts, for, trial. The words 'notwithstanding anything contained in these) Regulations' occurring in Martial Law Regulation No. 3 and again in the reconstituted Regulation No. 45 are significant. By necessary intendment, the power to transfer pending cases from the criminal Courts under the ordinary law by the Zonal Martial Law Adminis trator have been taken away completely by the reconstituted Martial Law Regulation No. 45. We are clear in over minds that the Martial Law Regulation No. 42 could not be invoked to transfer pending cases against the petitioners from the Court of the Central Special Judge to the Special Military Court, Rawalpindi for trial."

28. In reaching this conclusion, besides the above interpretation, their Lord ships also relied on the case of Muhammad Ayub Khan v. Pakistan (PLD1960SC237) and observed :----

29. "The Special Judge appointed under the Pakistan Criminal Law (Amend ment) Act, 1958, is a Court of special jurisdiction, its jurisdiction being confined only to a specific class of cases under a prescribed procedure. In Muhammad Ayub Khuhro v. Pakistan it was held that a Court of a Special Judge was neither of a status of a High Court nor that of a Criminal Court constituted under the Criminal Procedure Code, Martial Law Regulation No. 42, therefore, would not be attracted to this category of cases pending in the Court of Special Judge."

30. The Full Bench, therefore, finally came to the conclusion :----

31. "That the order transferring the cases from the Court of the Special Judge Central to the Special Military Court, was defective on the legal plane, and is without jurisdiction, in view of the Provisional Constitution Order and M. L. Regulation 3 as reconstituted by Regulation No. 45."

32. The learned counsel for the third respondent submitted that the view taken in the case cited was not correct, and he reserved the right to challenge it before their Lordships.

33. His next submission was that even if the orders convicting the petitioners were without jurisdiction, these orders had been saved by Article 281 of the Interim Constitution and could not therefore be questioned. This Article in so far as it is relevant reads as under : -----

34. "281.-(1) All Proclamations, President's Orders, Martial Law Regu lations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.

(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty-fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done."

35. This Article of the Interim-Constitution, which was intended to give validity to orders, proceedings and acts, enumerated in clause (2), became operative from the 21st April, 1972, and its real import, scope and the nature of validation granted by the above clause (2) was the subject matter of inter pretation in the case State v. Ziaur Rehman (PLD1973SC49) and it was observed at page 89 :----

36. "In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fade. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 alongwith some of the other provisions of the same Constitution without departing from the well-recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice."

37. The above view was reaffirmed by their Lordships in the case Federation of Pakistan v. Saeed Ahmed Khan (PLD1974SC151) where the same arguments were again raised and it was contended that the intention of the law-giver was made clear by the language used in Art. 269 of the Permanent Constitution. Their Lordships, however, after considering the full arguments concluded :---

38. "The words `notwithstanding any judgment of any Court' were, it appears, introduced to take away the effect of the decision of this Court in the case of Miss Asma Jilani under which these acts would have been invalid. This does not affect the decision in Zia-ur-Rehman's case, because, there the interpretation of these very words came up for consideration, and it was held that the validity sought to be conferred by these words did not extend to acts done, orders made or proceedings taken without jurisdiction, coram non judice or mala fide because such acts, orders or proceedings could neither be done in the exercise of powers derived from President's Orders, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws, or even in the purported exercise of these powers."

39. And to the extent of considering the question whether the proceedings against the petitioners before the Summary Military Court were coram non jualce, the case of Mir Hassan v. State supported the petitioners.

40. The learned counsel for the third respondent then contended that objection to the jurisdiction of the Military Court should have been taken by the petitioners at the time of trial before that Court which was not done although the Pakistan Army Act and Rules specially provided for the raising of such a plea by the accused before the commencement of their trial. He referred to Rule 41, which is in the following terms :----

41. "41. Special plea to the jurisdiction :-(1) The accused, before pleading to a charge, may offer a special plea to the general jurisdic tion of the Court. If he does so, and the Court consider that anything stated in such plea show that the Court have no jurisdiction, they shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof of qualification thereof, and any address by the accused and reply by the prosecutor in reference thereto.

(2) If the Court overrule the special plea, they shall proceed with the trial.

(3) If the Court allow the special plea, they shall record their decision and the reason for it, and report it to the convening authority and adjourn. Such decision shall not require any confirmation, and the convening authority shall either forthwith convene another Court for the trial of the accused or order the accused to be released.

(4) If the Court are in doubts as to the validity of the plea, they may refer the matter to the convening authority and may adjourn for that purpose or may record a special decision with respect to such plea, and proceed with the trial."

42. According to the learned counsel the petitioners by their commission had in fact submitted to the jurisdiction of the Summary Military Court, an having thus acquiesced to the trial were not entitled to raise this objection in these proceedings. This contention however has no force as the petitioners had submitted to the jurisdiction of the Summary Military Court only as accused persons. and in the case Muhammad Afzal v. Board of Revenue, West Pakistan (P L D 1967 S C 314) where the facts were that the High Court had refused to grant relief because of a finding that the question of jurisdiction had not been raised before the Member Board of Revenue, but it was found as a fact that there had been an act performed by the Board without lawful authority to the substantial prejudice to the party who appeared as a respondent before the Board, it was observed by their Lordships;

43. "If that were to be accepted as a good ground for denying to the subject the benefit of Article 98 actions in excess or perversion of public powers would gain enormous access of immunity. Like the law-and order administration, the revenue administration, in its impact on the cultivator has all-pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength. The usual and the wise course, that he takes is to submit for the time being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such a condition as that which the learned Judges have applied in this case."

44. Their Lordships also further made it clear that----

45. "By mere submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."

46. This case was followed in Khenaram v. Commissioner, F.C.R. (P L D 1969 Quetta 24) (Judgment by Dorab Patel, J.) in which, relying on the common law principle that the conduct of a petitioner was not relevant in a Habeas Corpus Writ as distinguished from certiorari, it was observed that the case of Muhammad Afzal emphasizes the duty of the Court to examine the circumstances of each case. And in that view of the matter, the petitioners in the present case were obviously facing the all pervading authority of the Martial Law and had no choice but to appear before the Summary Military Court, and they could not be prevented from showing to the High Court that the proceedings and consequential orders passed against them were all illegal.

47. Mr. Naseem Farooqi, the learned counsel for the third respondent then pointed out that the present petitions were filed after more than two years of the order passed by the Summary Military Court, and a year after the rejecting of the revision application by the Governor of Sind, and therefore, he submitted the petitions should be dismissed, on the ground of laches alone. The explanation for the delay given by the petitioners is that they had been advised to wait for the decision in the case of State v. Ziaur Rehman, which was then pending before the Supreme Court and in which the point under consideration was whether in the background of the constitutional protection, the orders passed by the Military Courts or other Martial Law Authorities could at all be interfered with and if so to what extent. As the case Ziaur Rehman v. The State and another was decided by the Supreme Court on the 8th of January 1973, but the original cause that gave rise to these questions had been under the active consideration o Courts even during the first few months of 1972, and also as the points of law had arisen on account of successive political changes in the country, I Mr. Khalid Ishaque, the learned counsel for the petitioners argued that the delay caused was for reasons which are not the result of negligence so as to disentitle the petitioners to any remedy and that this was not in fact a case of laches.

48. Mr. Farooqi, on the other hand, submitted that the petitioners had not been debarred from prosecuting their constitutional remedies ; therefore they should have filed their petition earlier, which no doubt, would have been dismissed, but, according to learned counsel, this was quite immaterial, because the petitioners would have been free to file a petition for leave before their Lordships. No doubt, the petitioners could have filed their petition earlier, but, if the submission is accepted, it would put a premium on un necessary litigation, and, on the other hand, the very objection advanced by Mr. Faruqi was considered and rejected by two Division Benches of the West Pakistan High Court.

49. In Mubarak Alt Bhatd v. Fiayaz Ali Khan (PLD 1963 Lah. 8) the contention of the res pondents was that the petition was barred by laches and the petitioner's explanation of the delay in filing the petition was very similar to the one in the instant case. The learned Judges in the Division Bench observed, with reference to these arguments :-

50. "It was argued for the State that these petitioners having come to Court about 2 years after their removal their petitions should not be heard. The reason why they had not come earlier is that according to an earlier decision of the Supreme Court in Mr. Zafar-ul-Ahsan s case, the High Court and the Supreme Court had no jurisdiction to entertain writ petitions against orders of Screening Committees. A different view, however, was taken in a subsequent case which was published in the Law Reports sometime this year." and the petitions were accepted.

51. These observations were followed by another Division Bench of High Court of West Pakistan, in Abdul Qayum Khan v. The State (P L D 1968 Posh. 6). No judg ment to the contrary was cited and respectfully following the view taken in K the cases mentioned above we hold that these petitions were not barred on account of delay.

52. Additionally, Mr. Khalid Ishaque enumerated the irregularities in the trial of the petitioners. Major Usman Baig who bad presided the Summary Military Court, during his examination in this Court had been questioned about these irregularities; and the learned counsel argued that the explanations of the witness coupled with the proved irregularities in the trial, established mala fides. In this connection, learned counsel referred to the failure to~ prepare and supply an abstract of evidence to the petitioners ; the failure to frame a charge properly and the failure to amend it. Even graver was the failure to give the petitioners an option of separate trials and failure to take evidence of character and failure to summon Rustom Khan in spite of an application made for that purpose. As this witness was the taxi driver who bad taken silver from the Cantonment Station, it is obvious that his evidence would have been useful for the defence of the petitioners and was necessary for a just decision of this case. Surprisingly the record of the evidence was also admittedly destroyed, and Major Mirza Usman Baig did not know of any rule for permitting him to do so. He also could not quote any provision of the Army Act or Rules which empowered him to impose the punishment of lashes for the offences charged. In the submission of the learned counsel these features were enough to show that the proceedings were mala fide but Mr. Nasim Farooqi described them all as mere bona fide errors of proceedings and as we are deciding the petitions upon the main question of jurisdiction we do not think it necessary to decide the issue of the proceedings being mala fide.

53. Mr. Nasim Farooqi then raised a technical objection to the competence of these petitions on the ground that the reliefs sought by the petitioners could net possibly be given, as there was no Summary Military Court or any other such Court in existence after the Martial Law had been withdrawn. When it was pointed out to him that the sentence of fine passed against the petitioners was still being enforced his reply was that no fine in fact was being recovered. Mr. Usman Ghani Rashid, the Assistant Advocate-General, who appeared for the first two respondents also made the similar statement. However in support of his above contention Mr. Nasim Farooqi relied on a case from the Indian Jurisdiction. The Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Association (Calcutta Branches) and others (AIR 1956 S C 746), but we find that the specific point was not decided in that case, because the final decision proceeded on a totally different consideration.

54. The prayer made in these petitions in effect seeks the setting aside of the judgment and sentence of the Summary Military Court dated 4-1-1971 on the ground of being illegal, void and passed without proper authority. There appears no reason why such a declaration should be denied to them petitioners when the illegality is patent. Even if the respondents now do not propose to recover the fine the sentence already undergone by the petitioners has left a stigma, which they would naturally be interested to clear as they are aggrieved by it.

55. In view of the above discussion, it is clear that the petitioners are aggrieved by the impugned decision of the Summary Military Court which it had given without lawful authority inasmuch as the case against the petitioners could not have been validly transferred from the Court of Special Judge. Central, where it was pending and had been proceeded with ; and in the result the petitions are allowed, but with no orders as to costs.

56. DORAB PATEL, J.- I agree.

57. S. A. H.

58. Petitions allowed.