SH. MUHAMMAD YOUSAF Versus FEDERAL GOVERNMENT AND 5 OTHERS

MUNIR A. SHEIKH, J .--- In this Constitutional petition the petitioners seek declaration to the effect that the conviction and sentence passed by the Summary Military Court No. 18, Rawalpindi, on 3-1-1985 on the basis of the charge-sheet, dated 29-12-1984 founded on F.I.R. No.421, dated 7-8-1979 lodged by respondent No.4 and the direction to respondent No.3 to dispossess the petitioners from the house owned by them and any proceedings commenced in pursuance thereof by the respondents were without lawful authority and of no legal effect with costs.

2. The facts forming the background of the dispute relevant for the disposal of this Constitutional petition shortly stated are that one Haji Muhammad Abdullah and respondent No.4 both non-claimants filed applications under the Settlement Laws on prescribed N.C.H. Forms seeking transfer of evacuee property House No.Q-43 Chowk Imam Bara, Rawalpindi. It was transferred by the Deputy Settlement Commissioner, Rawalpindi, through order, dated 21-5-1960 to Haji Muhammad Abdullah on the basis of his possession through allotment from 1947. He through Association Deed, dated 31-12-1963 surrendered his ownership rights in the said house in favour of Sh. Habib Ullah deceased predecessor-in-interest of the present petitioners. This Deed was approved and accepted by the Deputy Settlement Commissioner on 6-2-1964. P.T.O. was prepared in the name of Sh. Habib Ullah-deceased but before it could be delivered to him he had died. It was, therefore, amended and the same was issued in the name of the present petitioners as his successors-in-interest on 21-9-1964. P.T.D. was also issued in their favour on 8-7-1965.

3. After the lapse of a period of seven years respondent No.4 filed an appeal before the Additional Settlement Commissioner against the order, dated 21-5-1960 of the Deputy Settlement Commissioner alleging that the said order of transfer was passed behind his back without considering his N.C.H. Forms and merits of his claim for the transfer of the property in comparison with the case of said Haji Muhammad Abdullah i.e. the transferee. The Additional Settlement Commissioner through order, dated 6-4-1968 accepted the appeal and remanded the case to the Deputy Settlement Commissioner for decision of the case afresh. The petitioners filed revision petition against the said order of the Additional Settlement Commissioner before the Settlement Commissioner, which was rejected through order, dated 8-2-1969. The petitioners filed Writ Petition No.432/R of 1969 before this Court, which was accepted through judgment, dated 7-2-1975. The order of the Deputy Settlement Commissioner, dated 21-5-1960 and the PTO/PTD issued in favour of the petitioners were maintained. Respondent No.4 filed C.P.S.L.A. No.253 of 1975 before the Supreme Court of Pakistan, which was dismissed on 19-6-1979. He filed review petition, which too was dismissed by the Supreme Court through judgment, dated 24-3-1980. He also filed civil miscellaneous application before the Supreme Court, which was also rejected through order, dated 12-12-1982.

4. After having failed in his endeavours to get the order of transfer, dated 21-5-1960 passed by the D.S.C. set aside and the property transferred in his favour respondent No.4 attempted to reopen the case by filing a civil suit before the Civil Court. He simultaneously also filed miscellaneous application before the D.S.C. The petitioners moved an application against respondent No.4 before the Supreme Court for contempt of Court in which notices were issued to the learned Civil Judge who entertained the suit, Deputy Settlement Commissioner and respondent No.4. They tendered unqualified apology before the Supreme Court and the matter was disposed of through order, dated 5-10-1982. The said suit and the application filed before the D.S.C. were not further prosecuted.

5. The petitioners as transferees/landlords filed an ejectment petition against respondent No.4 before the Rent Controller seeking his ejectment from the house in question. This application was accepted and respondent No.4 evicted, who was directed to hand over the vacant possession of the house to the petitioners. Respondent No.4 filed appeal against the said order of eviction before the Appellate Authority, which was rejected. He filed a Constitutional petition before this Court challenging the legality of the orders of Rent Controller and the Appellate Authority passed in the said ejectment petition, which too was dismissed. He filed C.P.S.L.A. No.89/R of 1983 before the Supreme Court, which was also dismissed through judgment, dated 30-1-1984.

6. The transfer price of the house determined by the Settlement Commissioner was Rs.12,144 which the petitioners paid through adjustment from the Compensation Book of one Salim Khan from whom the petitioners purchased the same as permissible under the Settlement Laws at the relevant time. The said Compensation Book was subsequently found to be not genuine, therefore, on 12-7-1979 a notice was issued by the Settlement Department to the petitioners to that effect. The petitioners coming to know that the Compensation Book sold by Salim Khan for adjustment of the said amount against the transfer price of the property was not genuine sought permission to deposit the same in cash. The permission was granted and the petitioners deposited the said amount on 21-7-1979.

8. On 7-8-1979 respondent No.4 lodged F.I.R. No.421/79 at Police Station Civil Line Rawalpindi, under section 420/471/468, P.P.C. against the petitioners for using bogus Compensation Book of Salim Khan. The petitioners made application to seek bail, which was accepted by the learned Sessions Judge on 7-11-1979. The Public Prosecutor informed the Court that the Summary Military Court had been constituted for the trial of the said case. On 8-11-1979 the Summary Military Court also granted bail to the petitioners and passed an order that the case should go to the ordinary Criminal Court, as a consequence of which it was entrusted to the Court of Section 30 Magistrate, which was presided over by the learned Senior Civil Judge, Rawalpindi.

9. The petitioners made an application under section 249-A of the Cr.P.C. praying that since no Court could take cognizance of any offence for trial except on a complaint made by the competent Authority as envisaged by section 28 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 and that the amount of Rs.12,144 which was got adjusted from the said Compensation Book had already been paid in cash on 21-7-1979, therefore, they should be acquitted. The learned Senior Civil Judge acting as Section 30 Magistrate through order, dated 16-7-1981 accepted the said application and the petitioners acquitted on the ground that the complaint had not been filed by the competent Authority. Respondent No.4 filed revision petition against this order before the learned Sessions Judge, which was dismissed/disposed of through order, dated 14-3-1982. On 4-2-1984 Summary Military Court issued stay order against the eviction of respondent No.4 from the house as ordered by the Rent Controller. This order was, however, vacated by the said Court on 6-2-1984. The petitioners filed execution petition for execution of eviction order in which warrant for possession was issued and the possession of the house delivered to the petitioners in pursuance thereof.

10. Subsequently on 2-1-1985 petitioner No. 1 Sh. Muhammad Yousaf, was arrested in the night and produced on 3-1-1985 before a Summary Military Court and served a charge-sheet. The said Summary Court convicted and sentenced him to one year's R.I. with a fine of Rs.3,00,000 and in default thereof to suffer further R.I. for one year in the same case F.I.R. No.421/79. A separate order was also passed on 5-2-1985 directing the District Magistrate to dispossess the petitioners from the house and deliver possession of the same to respondent No.4.

11. The petitioners approached this Court through Writ Petition No.79 of 1985 on 31-3-1985. The learned Assistant Advocate-General was called to appear and produce the order, dated 8-9-1985 passed by the Summary Military Court addressed to D.M. and in the meantime not to dispossess the petitioners. This Constitutional petition was fixed before a Division Bench of this Court. The true facts having come to the knowledge of the petitioners -as to how Summary Military Court took cognizance of the case, therefore, the prayer of the petitioners to withdraw the said writ petition for filing fresh writ petition was accepted by this Court and in consequence thereof the present amended Constitutional petition was filed.

12. It is manifest from the documents filed by respondent No.4 alongwith written statement that he was Qasid in the Cabinet Division and was attached with Mr. K.U. Faruqui, Additional Secretary Cabinet Division at the relevant time. He after having failed to get the house transferred in his favour as against Haji Muhammad Abdullah made miscellaneous application to the President/ Chief Martial Law Administrator when he visited the Cabinet Secretariat in September, 1983. The President issued a directive to the Cabinet Secretary to provide every possible help to him for redress of his grievance. On this the Cabinet Division sought the opinion of the Inspector/S.H.O. Police Station Civil Lines, Rawalpindi in which said cas0 F.I.R. No.421/79 was registered. He submitted report on 26-2-1983 in favour of respondent No.4, which was contrary to the judgments passed on the judicial side by the Settlement Authorities, this Court and the Supreme Court. Mr. Khadim Hussain a Major D.A.J.A.G. directed the S.P.P. Rawalpindi to put up the challan afresh for trial of the said case in the Military Court. It was, however, observed that in his directive that the accused at the time of trial may take "plea in bar" on the basis of the decisions of the Supreme Court/High Court and M.I.C., Rawalpindi in the matter. He, however, added that the superior Court had never adjudicated upon the issue of forgery and fraud and that previously the case was dismissed on the technical ground by the Military Court and the merits of the same were not adjudicated upon. He opined that the trial afresh by the Military Court was not hit by the plea in bar as contemplated by law, as such, the trial of the case in Summary Military Court would be free from "plea in bar" and the said Military Court may overrule such objections at the time of trial if advanced by the accused. In these circumstances the Summary Military Court took cognizance of the case tried the petitioner of the charges on 3-1-1985 and sentenced him to rigorous imprisonment for one year with a fine of Rs.3,00,000, in default thereof to further undergo a period of one year. A separate order was passed for the dispossession of the petitioners from the house and delivery of possession of the same to respondent No.4. Mr. K.U. Faruqui, Additional Secretary informed the President/Chief Martial Law Administrator by forwarding a copy of the order of the Military Court in relation to his earlier directive. The grounds on which the order for delivery of possession of the house in dispute to respondent No.4 was passed on 5-2-1985, the implementation of which was sought on 8-5 1985 are reproduced below in extenso:--

"Since it has been adjudicated that the convict Sheikh Muhammad Yousaf was in illegal possession of House No.Q/43 Imam Bara Road, Rawalpindi, by committing cheating and forgery, you may please take appropriate action for restoration of possession of the said house to its legal owner to Mr. Inayat Ullah."

13. The charge framed by the Military Court reads as under:--

FORGERY FOR THE PURPOSE OF CHEATING:

First Charge under section 420/468 read with C.M.L.O. 177 in that he, on or about 31st December, 1963 prepared three bogus documents namely agreement deed and an affidavit purported to be executed by Saleem Khan and Sheikh Muhammad Abdullah respectively and a claim book to obtain the allotment of House No.Q/43 Imam Bara Road, Rawalpindi from the Settlement Department, thereby committed an offence punishable under section 420/468, P.P.C. read with C.M.L.0.77.

USING FORGED DOCUMENTS AS GENUINE :

Second charge under section 171, P.P.C. read with C.M.L.0.77 in that he, on or about 6th May, 1963 produced three forged documents mentioned in the first charge, before Settlement Authorities, to obtain allotment of House No.Q/43 Imam Bara Road, Rawalpindi, thereby committed an offence punishable under section 71, P.P.C. read with C.M.L.0.77.

(Sd.)

Lt.-Coe P.N. D.A.J.A.G

(Muhammad Yar)

Referred to Summary Military Court No. 18, Rawalpindi for taking cognizance. "

The judgment/order passed by the Summary Military Court for sentencing as aforementioned Muhammad Yousaf petitioner No. 1 is as under:--

"Sentence: Taking all these matters into consideration, I now sentence the accused.

Accused No. 1 Muhammad Yousaf son of Sheikh Habib Ullah resident of House No.43/Q Chowk Imam Bara, Rawalpindi.

(a) To suffer rigorous imprisonment for one year.

(b) To pay fine of Rs.3,00,000 (Rupees three lac only)

Note : In default of payment of fine to suffer further rigorous imprisonment for one year.

Signed at Rawalpindi on 3rd January, 1985

(Sd. )

President Summary Military Court No. 18

(Zia-ur-Rehman Anwar)

(Signature of officer holding the trial).

14. Learned counsel for the petitioners made the following submissions in support of this writ petition:--

(a) that the trial of petitioner No. l by the Summary Military Court on the aforementioned charges and the order passed by it for his sentence as also the order issued by the Martial Law Authorities for the dispossession of the petitioners from the house in dispute and delivery of its possession to respondent No.4 are based on erroneous assumption that he was lawful owner thereof, suffer from positive mala fides;

(b) that the order for sentencing petitioner No. l by the Summary Military Court was passed mechanically under the influence, directive of the President/Chief Martial Law Administrator in support of which there was no evidence available on the record to prove the prosecution case;

(c) that the question of transfer of the house having earlier been decided by the competent Courts could not be reopened and the order for reopening the case was passed arbitrarily, capriciously and whimsically which suffered from malice;

(d) that the charges framed on which petitioner No. l was convicted related to the payment of the remaining transfer price of Rs.12,144 of the house in dispute which amount was deposited in cash, therefore, there was no legal basis for declaring that the transfer/allotment of the house had been obtained through cheating or for passing order for the delivery of possession of the same to respondent No.4 in the presence of ejectment order passed by the competent Courts which was upheld upto the Supreme Court alongwith the transfer of the property to the petitioners' predecessor-in-interest.

15. Learned Deputy Attorney-General and learned Advocate-General appearing for respondents Nos. l to 3 and 5 respectfully submitted that the proceedings taken by the Summary Military Court, and the impugned order for sentencing the petitioner No.l by it, and the order passed by the Martial Law Authorities for the dispossession of the petitioners and delivery of possession of the house to respondent No.4 have been protected by Article 270-A of the Constitution, therefore, jurisdiction of this Court is barred to question the legality of the same. The controversy has been set at rest by the Supreme Court in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar reported as PLD 1989 SC 26 in which it has been held that the acts, orders or proceedings of Martial Law Authorities which were done, made or taken without jurisdiction, mala fide or coram non judice, had not been saved from the scrutiny of the Courts by ouster clause of Article 270-A of the Constitution. While elaborating this principle the Court clearly held that the said Article did not take away the jurisdiction of the High Court from reviewing acts, actions or proceedings, which suffered defect of jurisdiction or were coram non judice or were mala fide. For this purpose it was unnecessary to draw a distinction between malice in fact and malice in law.

16. Testing the present case on the touch stone and the principles laid down by the Supreme Court we feel no hesitation in holding that the trial of petitioner No. l in case F.I.R. 421/79 by the Summary Military Court, proceedings taken by it and the orders for sentencing him and delivery of possession of the property to respondent No.4 suffers from positive mala fides as they were initiated on the directive of the then Chief Martial Law Administrator issued on the application of respondent No.4 who was Naib-Qasid in the Cabinet Division after having failed as regards transfer of property upto Supreme Court and in the petition for eviction too. It was a case of acute misuse of the powers by the Martial Law Authorities and Summary Military Courts in the matter where no such power could be exercised for personal ends so as to grab the property for respondent No.4, the transfer of which under the law was declined to him upto Supreme Court. These proceedings were got initiated with mala fide intention, which were motivated by desire to get back the property through underhand means, which cannot be permitted. This Constitutional petition is pending since, 1988 and the learned Deputy Attorney-General has neither brought on the record copies of the proceedings of the said Military Court in order to establish that the sentence awarded to petitioner No.l by the said Court was based on evidence which clearly established the prosecution case. Even the record of the proceedings of the Military Court has not been produced. We are justified to accept the argument of learned counsel for the petitioners that the sentence was not based on any evidence much less evidence of unimpeachable character proving the case of prosecution beyond any shadow of doubt which was required in every criminal case to convict and sentence a person for any offence and we will raise inference in this regard against the respondents particularly keeping in view the background as aforementioned and the purpose for which the proceedings were reopened on the directive of the Chief Martial Law Administrator.

17. The price of the house determined by the Settlement Department was Rs.12,144 which was paid in cash by the petitioners when they were informed that the Compensation Book of Salim Khan from which it was earlier got adjusted was bogus, therefore, the fraud, if any, was allegedly committed in respect of payment of the price of the property, as such, the same did not have any nexus with the earlier order of allotment and transfer of the same. The judgment passed by the Supreme Court on 19-6-1979 upheld the transfer of the house of Haji Muhammad Abdullah who surrendered his rights of ownership in favour of Sh. Habib Ullah deceased, predecessor-in-interest of the petitioners which was passed long before the determination of the price of the property and its payment from the said Compensation Book, as such, even if it had been revealed that the Compensation Book of Muhammad Salim was not genuine, it could not have any adverse affect on the legality of the 'order of allotment and transfer of the house as aforementioned which as observed was upheld upto the Supreme Court. It had also nothing to do with the order of ejectment passed by the Rent Controller which too was upheld upto the level of Supreme Court, as such no order could be passed for delivery of possession of the house to respondent No.4 assuming him to be the lawful owner in whose favour no order ever was passed by the Settlement Authorities for the transfer of the same. The manner in which the Summary Military Court acted in this case to pass an order for the delivery of possession of the property itself furnishes strong evidence that the intention behind these proceedings was to interfere in the orders of transfer of the house to respondent No.4 which could not be done under the law having attained finality.

18. Mr. Muhammad Iqbal Khichi, learned Assistant Advocate-General argued that under sections 174 and 175 of the Army Act of 1952 the Court while sentencing the accused person was empowered to restore possession of the case property to the complainant, therefore, the order passed by the Martial Law Authorities for restoration of possession of the house to respondent No.4 was validly made.

19. We are afraid the argument in our opinion is plainly unsound. The subject-matter of the charges for which petitioner No. l was tried and sentenced as observed above related to the adjustment of the remaining price of the house of Rs.12,144 and the Compensation Book from which the same was got adjusted after having been found to be bogus or not genuine which only could be recovered from the transferee of the property which the petitioners paid, therefore, there is no scope whatsoever left to argue and hold that the property itself could be treated to be the case property in this case. As we have already held the proceedings suffered from positive malice for the scope of the proceedings and sections 174 and 175 as argued were sought to be extended from their proper limits. In our view, the petitioners who purchased the Compensation Book from Muhammad Saleem were themselves victims of fraud played by the later by selling a bogus Compensation Book which in the ordinary circumstances a purchaser would not be knowing at the time of entering into agreement, as such, if any person was to be tried and convicted it was Muhammad Saleem and not petitioner No. 1.

20. For the foregoing reasons we hold that the proceedings taken by the Summary Military Court No. 18, Rawalpindi, for the trial of petitioner No. I on', the charges framed against him and order, dated 3-1-1985 passed by the said Court sentencing petitioner No. I to rigorous imprisonment for one year with a fine of Rs.3,00,000 and in default thereof to suffer further R.I. for one year and the order for the delivery of possession of the property to respondent No.4 erroneously assuming him to be the lawful owner thereof are without lawful authority and of no legal consequence and quashed. The writ petition stands accepted in terms thereof. Since the proceedings have been held to have suffered from positive mala fides and they were unjustifiably defended by respondent No. l the Provincial Government and respondent No.4, therefore, we direct that each of these shall pay an amount of Rs.5,000 to petitioners as special costs.

N.H.Q./M-193/L Petition accepted