ARSHAD MEHMOOD SIDDIQUI Versus MUHAMMAD HAROON

IRSHAD HASAN KHAN, J: ‑‑ This judgment will dispose of Writ Petition No.453/86 and Writ Petition No.662/86 involving identical question of law and facts and arising out of same order, dated 25‑3‑1985 passed by the Special Military Court No.65, Rawalpindi, whereby Muhammad Zaman, petitioner was convicted and sentenced to death under section 302, P.P.C., whereas Muhammad Hanif, petitioner was convicted and sentenced to life imprisonment in pursuance of F.I.R. No.124 dated 15‑10‑1975 under section 302/307, P.P.C. registered at Police Station Rawat, Rawalpindi.

2. The case of the petitioners is that the relatives of Zaheer Ahmad deceased were high ranking officers in the Pakistan Army, in that, Nadeem Akbar a brother of the deceased was Brigadier, Muhammad Yaseen another brother of the deceased was a Colonel, Mst. Kalsoom Bibi wife of Colonel Muhammad Yaseen was also a Brigadier and Muhammad Ashraf Khan, another brother of the deceased was a Chief Petty Officer from the Pakistan Navy. They exercised their influence for trial of the said case in a Special Court and succeeded in their efforts. Consequently, the case was transferred to the Special Military Court. The petitioners filed Writ Petition No.5892/78 before this Court in which the learned Additional Advocate‑General made a statement on behalf of the State that the case of the petitioners would be sent back to the ordinary Court. It was also stated on instructions from the Martial Law Authorities that no Military Court shall deal with the case in any manner whatsoever and that the case had already been sent to the Sessions Judge, concerned in the month of December 1978. In view of the said statement, the ' writ petition was disposed of as having borne fruit by order dated 7‑4‑1978. In consequence, the prosecution evidence was concluded before the, learned Sessions Judge, Rawalpindi in .December 1982 and so was the defence evidence. However, in violation of the undertaking given on behalf of the State, the case was again sent to the Special Military Court for trial.

3. No written statement has been filed in either case to controvert the allegations. It is thus apparent that the re‑trial by the Special Military Court was in violation of the undertaking given by the State to this Court. It could not, therefore, be said that the petitioners were tried honestly and bona fide by the Special Military Court. Clearly, the conviction and sentence recorded by the Special Military Court were tainted with mala fides and on that score alone, it is liable to be quashed. Reference may be made to The State v. Zia-ur‑Rahman PLD 1973 SC 49, wherein in similar circumstances, the conviction and sentence recorded by the Special Military Court were declared as mala fide. Reference may also be made to Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, wherein it was held that acts, actions or proceedings which suffered from excess or lack of jurisdiction or were coram non judice or mala fide could hardly be treated as those in accordance with law. In the instant case, It is established on record that the initiation of proceedings before the Special Military Court, which led to the conviction and. sentence of 'the petitioners were mala fide, being in violation of the undertaking given to this Court on behalf of the State. On this short ground alone, the impugned conviction is liable to be quashed. The result is that the case against the petitioners will be deemed to be pending and the same shall be tried by ordinary Court in accordance with law.

To this extent the writ‑petition is accepted with no order as to costs.

M.BA./M‑214/L Petition accepted.