SAEEDAN KHATOON Versus GOVERNMENT OF PAKISTAN
1. SYED HAIDER ALI PIRZADA, J.‑‑‑ The petitioner in the above petition has prayed for the following reliefs:‑
2. "(i) Call for perusal the Record and proceedings (F.I.R. No.24/84) of P.S. Liaquatabad.
(ii) Declare the judgment promulgated by Special Military Court No.12 on 29‑12‑1985 as being against law, without jurisdiction and the Constitution and therefore null and void.
(iii) Set aside the conviction and sentences awarded to accused Muhammad Mumtaz, Abdul Sattar and Abdul Salam and set them at liberty, or
(iv) Order re‑trial of the case alongwith the counter‑case by Civil Court of competent jurisdiction.
(v) Award any other appropriate relief which the Hon'ble Court may consider fit and proper in the circumstances of the case.
(vi) Award cost of the proceedings."
3. The facts leading to the filing of the above petition are that an incident took,, place at about 3‑00 a.m. on 20‑1‑1984 near Pathan Hotel in Bandhani Coiony, Karachi, in the course of which incident Muhammad Mumtaz husband of the petitioner and Abdul Sattar, her son were injured on one side while Abdul Qadeer, Abdul Aziz, Muhammad Yaqoob and Abdul Majeed received injuries on the other side. All the injured persons were removed to Abbasi Shaheed Hospital and information about the injured persons was conveyed, on the phone, to Liaquatabad Police Station by Dr. Tariq Masood, the Incharge Medico‑Legal office. Police reached the hospital after some time but meanwhile Abdul Majeed had succumbed to his injuries. Statement of P.W. Abdul Qadeer was recorded at 6‑15 p.m. which was subsequently incorporated as F.I.R. in the 154, Cr.P.C. Book (F.I.R. No.24/84). Injured Muhammad Mumtaz and Abdul Sattar and one other son of the petitioner named Abdus Salam were arrested by the police in the case registered under sections 302, 307 read with section 34, P.P.C.
4. A counter‑case in respect of the injuries sustained by Muhammad Mumtaz and Abdus Sattar, in the same incident (F.I.R. No.48 of 1984) was registered on 4‑2‑1984 at the same police station against P.W. Abdul Qadeer, ‑Abdul.Aziz and Muhammad Yaqoob for offences under sections 324, 325, P.P.C. The case. was sent up for trial before a First Class Magistrate but it was transferred to the Sessions Judge, Karachi where the counter‑case was pending. The case against the husband and two sons of the petitioner proceeded in the Court of Sessions Judge, Karachi where evidence of three witnesses was recorded. At that stage, however, the case was withdrawn from the Court and transferred to Special Military Court No.12 while the counter case remained pending in that Court. The counter‑case was also withdrawn on the representation of the petitioner but after a period of about nine months, it was transferred to Special Military Court No.13 instead of the Special Military Court No.12. The Special Military Court completed the trial of the case against the husband and two sons of the petitioner and found all the three accused guilty of the offences with which they were charged and they were sentenced as under.‑.‑
(a) Abdul Sattar son of Muhammad Mumtaz.
(1) Death : To suffer death by being hanged by the neck till he be dead.
(2) Fine: To pay Rs.50,000 as compensation to the heirs of deceased Abdul Majeed. In default of payment to be recovered as arrears of land revenue.
(b) Muhammad Mumtaz son of karim Bakhsh.
(1) imprisonment : To suffer imprisonment for life.
(2) Fine to pay Rs.25,000 as compensation to the heirs of deceased Abdul Majeed. In default of payment to be recovered as arrears of land revenue.
(c) Abdul Salam son of Muhammad Mumtaz .
(1) I mpriso nment: To suffer imprisonment for life.
(2) Fine: To pay Rs.25 000 as compensation to the heirs of deceased Abdul Majeed. In default of payment to be recovered as arrears of land revenue.
5. The findings of the Special Military Court and the sentences, awarded by it to the three accused persons, were submitted for confirmation to the Martial Law Administrator, Zone `C', Karachi as required under the law. The Martial Law Administrator, however, did not confirm the findings and the sentences awarded by the said Court and by a Revisional order dated 16‑10‑1985 the case was sent back to the said Court, directing it, to reasons for the purpose of revising their findings as well as the sentences awarded to the accused. persons. Specific directions were issued to the said court to re examine Dr. Muhammad Tariq Masood with regard to the nature of extent of injuries found on the accused persons. It was further ordered to reconsider their verdict in the light that "it was a free fight wherein both the parties inflicted injuries on each other". In para. 2 of the revision order there was further direction to re-peruse the evidence on record, record additional evidence and revise their' findings and sentences in respect of the accused persons.
6. It as the case of the petitioner that to compliance with the directions of the Martial Law Administrator, Zone `C', the Special Military Court No.12 did re‑assemble to record further evidence of Dr. Tariq Masood who stated that he found 8 injuries on the person of accused Muhammad Mumtaz, one of which was grievous in nature. It is the further case of the petitioner that the Special Military Court No.12, however, did not record any further evidence. On 29‑12‑1985 only few hours before the lifting of Martial Law, the said Special Military Court No.12 announced the judgment in which the said Court adhered to its previous findings and imposed the same sentences as stated above. Convict Abdul Sattar submitted a petition under Article 7(1) of M.L.O. 107 praying that the proceedings of the Military Court be annulled and the case be retried by a competent Court alongwith the connected case. Hence the present petition.
7. We have heard Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the petitioner, Mr. A.A. Mohammadally, learned Additional Advocate General, Sindh and Mr. M. Umer Qureshi, learned counsel appearing for the Deputy Attorney, General.
8. It was contended that the Martial Law Administrator, Zone `C' directed the Special Military Court to record the evidence of Dr. Muhammad Tariq Masood with regard to the nature and extent of injuries inflicted on the accused persons to reconsider its verdict in the light that it was free fight, wherein, both the parties inflicted injuries on each other, to re-peruse the evidence on record and to record further additional evidence and revise its findings and sentences that so only one of the directions were complied with i.e. recorded evidence of Dr. Muhammad Tariq Masood.
9. The counter‑case was not fixed by the same Court despite objections made. in this behalf.
10. Mr. Umer Qureshi, learned counsel appearing for respondent No.1, has fairly conceded to the above position. Mr. AA. Mohammadally has also fairly conceded to the above position.
11. We have considered the contentions of the learned counsel and have carefully gone through the documents available on the record. It, is not disputed that the directions of the Revising Authority have not been complied with. It is not in dispute that the injuries were inflicted on both the parties.
12. It would be pertinent to point out at this stage that counter‑case arising from the same incident was not tried by the same Court. It is desirable that the criminal case and the counter‑case should be tried by the same Court to avoid risk of conflicting findings. The circumstances and the facts of the case are such that injustice had been caused or great prejudice is caused that it would be amount to an illegality warranting interference and remand of the case. In the instant case when the main case was being tried by the Special Military Court No.12 and the counter‑case was being tried by First Class Magistrate, an objection was not only raised, but a petition was submitted to the Chief Martial Law Administrator praying that both the cases be tried by the same Court. It appears that the counter‑case was transferred to the Special Military Court No.13. The accused persons again objected to the transfer of the case to the Special Military Court No.13.
13. In a case reported in PLD 1989 SC 26, it was held that acts 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.
14. In view of the above factual as well as legal position, we are of the considered view that the proceedings were without jurisdiction and therefore, the resulting conviction is also without jurisdiction. We would, therefore, allow g the petition and declare the impugned proceedings and the conviction arising therefrom as being without lawful authority and of no legal effect. We further direct that the main case and the counter‑case be tried afresh before the Court having jurisdiction.
15. H.B.T./S‑889/K Petition allowed.