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Criminal Revision No. 508 of 1963, decided on 8th February 1966.
and Martial Law (Pending Proceedings and Protection) Order [President's Order No. 26 of 1962], S. 3‑Offence purely under Martial Law -Transfer of case under S. 3 of President's Order No. 26‑Existence of corresponding liability under ordinary law‑Not necessary‑Mere registration, however, in terms of S. 1 of Martial Law Order No. 91 [Zone "C"] of offence under appropriate Martial Law Regulation‑Does not make proceedings "pending before Special Military Court or Summary Military Court" as laid down in S. 3 of President's Order No. 26 of 1962‑Proceedings before ordinary Courts in such circumstance, held, not warranted by law ‑ Martial Law Regulation [C. M. L. A's] No. 41 (reconstituted)‑Martial Law Order No. 91 [Zone C], S. I.
Amulya Chandra Saha and others v. The State 17 D L R 152 fol.
East Pakistan v. Renuka Moyee Das 16 D L R 525 distinguished.
‑Jurisdiction Cannot be conferred by implication and by provisions in nature of savings as in Art. 250.
M. A. Hamid with Mozammel Huq and Nowab Ali for Petitioners.
Tofail Ahmed for the State.
.‑This revision is directed against the order of the learned Sessions Judge, Chittagong, rejecting the motion of the petitioners against an order of a Magistrate, First Class, Chittagong, dated 5‑2‑1963, holding that the case can proceed against the petitioners under Martial Law Regulation No. 41 and fixing 12‑3‑1963 for P. Ws.
Short facts necessary to be stated is that the petitioners have been proceeded against for the offences under Martial Law Regulation No. 41.
The offence is alleged to be a pure martial law offence for which there is no parallel in the ordinary law of the land.
On 18‑5‑1962, charge‑sheet was submitted by the Inspector, D. A. B., Chittagong, again t the petitioners on the allegations inter alia that Messrs Metropolitan Tanneries, Kalor Ghat, Chittagong, imported chemicals of various qualities against the industrial import licence issued to them from time to time since 1957 for using them in their own industry; that on 3‑10‑1960, the said firm sold ten cases of Hydro‑chloric acid to one Kiitish Chandra Saha and on 26‑10‑1960 sold some other chemicals to Manager of another firm; that the firm of which the petitioner were Managing Partner and Manager respectively sold chemicals without utilising the same in their own industry and without taking permission from proper authority thus committing offence under Regulation No. 41 (Reconstituted) under Martial Law.
While the trial was taken up before the learned Magistrate on 5‑2‑1963, the petitioners took objection to the jurisdiction of the trial Court.
The learned Magistrate held that Article 250 of the Constitu tion saved the proceedings and therefore the petitioners continued to be liable.
The motion before the learned Sessions Judge having been rejected, the petitioners have come to this Court.
Mr. Abdul Hamid, the learned counsel appearing for the petitioners has urged the three grounds in the petition which are as under:‑
"
: For that in view of the fact that the Regulations, as distinct from Civil laws, which created the offences alleged against the petitioner being no more in existence there can be no proceedings in prosecution pending in respect to the said offence."
:‑For that in view of the fact that the ordinary Courts were empowered by the Regulations to try the offences for contravention of some Regulations made under the Martial Law and that the said Regulations being no more in existence, the learned Magistrate in law cannot proceed with the case. Ground No. 3:‑For that the proceedings for prosecution before the learned Magistrate is hit by Martial Law Zone "C" Order No. 91."
The learned Counsel's contention in substance is that the Martial Law Regulations having been repealed as and from 8‑6‑1962, which is the commencing day of the Constitution, the petitioners could not on 5‑2‑1963 be subjected to trial before an ordinary Court for a purely Martial Law offence as under Regulation No. 41 which has been repealed and for which there is no corresponding offence under the ordinary law and that in any event the learned Magistrate in this case had not the jurisdiction to try such an offence by reason of Order 91 being an effective bar to such jurisdiction by the learned Magistrate.
Further that the proceedings in the present case having not been pending in any Martial Law Court, that could not be transferred under Order No. 26 to the ordinary Court.
He has also contended that when the Martial Law Regulation has been abrogated by Article 225 (3) of the Constitution, the Article 250 cannot save any investigation, legal proceeding, etc., under the Martial Law Regulation, because the word "law" in Article 250 only embraces all existing civil laws and other laws that have been re‑enacted by Field Marshal Ayub Khan as the President of the country, and that the word "law" does not mean or include Martial Law Regulations or Martial Law Orders which he had passed as the then Chief Martial Law Adminis trator.
Mr. Tofail Ahmed, the learned Counsel appearing for the State has opposed the petition arguing that though the offence was a purely Martial Law offence without any co‑relation to any offence under the ordinary law, Order 26 was no bar to the proceedings and that the savings of Article 250 of the Constitution are not limited to civil laws and other laws as enacted by Field Marshal Ayub Khan as President of the country.
He has emphasised the words "instituted, continued or enforced", particularly the word "instituted" in the penultimate lines of clause (e) of Article 250 of the Constitution.
Mr. Tofail Ahmed has also cited a Divisional Bench decision of this Court, namely, East Pakistan v. Renuka Moyee Das (16 D L R 525).
In this case offence of carrying currency notes unauthorised beyond borders of Pakistan was committed by the accused on 30‑11‑1961 was triable under Regulation 58 of the Martial Law Regulation.
The case against the accused actually started before the Sessions Court on 15‑6‑1962 and the accused was discharged on the ground that Martial Law expired under Article 225 of the Constitution came into being.
Contention was raised that the order of discharge was illegal in view of the provisions of Article 250 of the Constitution and that the ordinary criminal courts could try the offence under clause 1 (a) of the Regulation 58 and further that Article 3 of the President's Order 26 of 1962 made the criminal Courts competent to try offences pending before the Military Courts before 8‑6‑1962.
It was held that "from the provisions of Article 250 of the Constitution it was clear that the proceedings which were launched at a time when the Martial Law Regulation No. 58 was in operation and was pending from before the commencing day, could not have been dropped by the Court on the plea of Martial Law having been revoked with the coming into force of the Constitution."
Mr. Tofail Ahmed has next cited the decision in the case of Amulya Chandra Saha and others v. The State (17 D L R 152) which again is a Division Bench decision of this Court.
The facts shows:‑
"Regulation 45 of the Martial Law Regulation which made the failure to declare or surrender foreign exchange holding held in a foreign country by December 1958, by a Pakistani citizen in terms of para 3 of the Regulation an offence under the Regulation stood repealed by virtue of Art. 225 of the Constitution with effect from 8th June 1962, the day on which the present Constitution came into force".
The petitioners in the present case were charged for their failure to declare or surrender their foreign exchange holding in a foreign country as required by the Regulation 45 and after a preliminary enquiry by a Magistrate they were committed to the Sessions Court to take their trial under Regulation 45 of the Martial Law Regulation.
The contention raised on behalf of the petitioner was that even if the petitioners had committed an offence by not declaring or surrendering their foreign exchange holding they could not after the 8th of June 1962, be proceeded against under the Martial Law Regulations, but they could be dealt with under the ordinary law of the land, in the present case the Foreign Exchange Regulation Act. In other words, it was urged if they had committed an offence by keeping foreign exchange holding in a foreign country then after the commenc ing day an ordinary criminal Court only would have jurisdiction to try that offence which is constituted by the facts of the case under the ordinary law of the land and therefore no trial so far as the petitioners are concerned could be held under Regulation 45 of the Martial Law Regulations even by an ordinary criminal Court inasmuch as the force of that Martial Law had exhausted itself with the expiry of the Martial Law period and coming into force of the Constitution of 1962 on 8‑6‑62.
Held: Under the provisions of section 3 of the President's Order No. 26 of 1962 all cases which were pending day, i.e. 8‑6‑62, before a Special or a Summary Military Court stood transferred to an ordinary criminal Court to be tried under the ordinary law of the land.
The criterion to judge as to whether a case started under the Martial Law Regulations shall after the commencing day he tried by an ordinary criminal Court, which would have jurisdic tion to try the offence constituted by the facts of that case under the ordinary law, is the fact whether that case on the commencing day was pending before a Special or a Summary Military Court.
Therefore, in spite of the fact that Regulation 45 of the Martial Law Regulations stands repealed with effect from 8‑2‑62, the proceedings commenced under the said Regulation shall continue under the provision of clause (e) of Article 250 of the Constitution.
Further held: Ordinary criminal Court had jurisdiction with effect from 27‑5‑61 (the day on which the ordinary criminal Courts were vested with power to try offences under Regula tion 45, if the Zonal Martial Law Administrator so directs, in accordance with the provision of the Criminal Procedure Code) to try a case under Regulation 45 of the Martial Law Regulations."
Coming to the subject‑matter before me the present offence under Martial Law Regulation No. 41 stood originally as:
"The sale and purchase of import licences and permits is prohibited. The prohibition also applies to the sale of imported raw materials and other goods by industrial consumers and actual users, but not to the traders who can sell the goods after import in the normal authorised way. Non‑compliance with this regulation is punishable. Maximum punishment 14 years' R. I. and fine."
As reconstituted on 17th February 1959, is stood as: -
"Martial Law Regulation No. 41 is reconstituted as follows, and shall be deemed always to have been so reconstituted:‑
(1) No person shall sell, purchase or otherwise deal in any import permit, or in any import licence other than an import licence issued under the Export Bonus Scheme.
(2) Except with the previous permission in writing of the Central Government, no person who imports goods against a licence issued to him in his capacity as industrial consumer shall sell or otherwise transfer such goods, or use the goods for a purpose other than the purpose or purposes for which the licence was issued.
(3) Nothing in paragraph 2 of this Regulation shall apply to goods imported under the Barter Scheme or the Export Bonus Scheme, or under any Export Promotion Scheme other than the Export Industries Special Licensing Scheme, or to goods imported in the normal authorised way.
(4) Whoever contravenes any of the provisions of this Regulation shall be punished. Maximum punishment seven years' R. L"
It is apparent that the offence is a pure creation of Martial Law without any correspondence in the ordinary law. This has been frankly conceded by the learned Counsel for the State.
There is also little doubt that it stood repealed in terms of Articles 225 (3) of the Constitution which is as under:‑
"(3) All Martial Law Regulations, except those specified in the Table to this clause, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation so specified shall be deemed to have become an Act of the Central Legislature and shall, with the necessary adaptations, have effect as such."
The present Martial Law Regulation being not one of those specified in the Table, stands clearly repealed.
Now the question is whether firstly there was pending proceeding as could be transferred under Order No. 26 of 1962 to the ordinary Court and secondly whether to justify transfer, it was necessary that there should be a corresponding liability under the ordinary law.
Section 3 of President's Order No. 26 of 1962 runs as follows : ‑
"3. Transfer of pending cases:‑
(1) Every case pending immediately before the commencing day before a Special Military Court or a Summary Military Court shall on the commencing day stand transferred to the Criminal Court which would have jurisdiction to try the offence constituted by the facts of that case, under the ordinary law.
(2) A case transferred to a criminal Court under clause (1) shall be tried by it in accordance with the procedure applicable to the trial of such a case, under the ordinary law."
The decision as cited from 17 D L R 152 by which we find ourselves bound held that the order applied to all pending proceedings before the Special Military Court or Summary Military Court; that is, that all, all such pending proceeding would stand transferred to the ordinary Court whether there was corresponding liability under the ordinary law or not.
Now the question that arises is, was the present proceeding at all a pending proceeding before the Martial Law Courts prior to the Order or even prior to the commencing day of the Constitution on 8‑6‑1962.
In our present case only charge sheet was submitted b; Inspector, D. A. B., on 18‑5‑1962.
The matter had not at all gone to the Administrator or Sub Administrator, Martial Law far from receiving back the record from them for trial by ordinary Court and far from the passim of any commitment order by the ordinary Court on 28‑5‑196; before the commencing day on 8‑6‑1962 as in the facts of the 17 D L R case.
On the other hand, in the light of Martial Law Zone "C' Order No. 91, the present matter was only awaiting transmission to the proper Court, that is, the Military Court and there was no question of the matter pending for trial even by the ordinary Court of the S. D. O.
Order No. 91 which needs quoting in extenso is in these terms:
"(1) All Martial Law offences shall be registered with the, the nearest police‑station under the ordinary law of the land, provided that where the offence is not chargeable under the ordinary law, it shall be registered under the appropriate Martial Law Regulation. The officer‑in‑charge, police‑station concerned, will institute the necessary investigation into the ease expeditiously and submit it to the Magistrate, Sub -divisional Officer having jurisdiction, as in the case of civil offences without delay.
(2) (a) An additional copy of the F I R. showing the relevant Martial Law Regulation, shall be prepared and forwarded without any delay by officer‑in‑charge, police‑station to the President, Summary Military Courts, having jurisdiction, in respect of offences chargeable under the following Regula tions issued by the Chief Martial Law Administrator‑
| Regulation No. | Class of offences |
| 6, 7 and 11 | Offences in respect of Recalcitrants. |
| 13 and 36 | Offences against members of Armed Forces only. |
| 42 and 65 | Hoarding and Blackmarketing. |
| 22 | Adulteration of foodstuff. |
| 27 | Smuggling. |
| 45 and 58 | Foreign Exchange offences and conversion of Pak Currency. |
| 5 | Abetment and attempt to commit the offences, enumerated above. |
| 68
| Trial in absentia in the above cases. |
(b) On completion of necessary investigation in respect of the above offences, or any other offence which is chargeable exclusively under the Martial Law Regulation, the officer‑in -charge, police‑station, will submit the investigation report along with the charge‑sheet to the Magistrate, Sub‑divisional Officer concerned, who will ensure that the investigation and record of the case is complete in all respects. The Magistrate, Sub- divisional Officer will then send the case with the said report to the President, Summary Military Court concerned who may expedite the case if it is delayed at any stage.
(c) Offences charged under Martial Law Regulation shall be non‑compound able.
(3) The President, Summary Military Court, on receipt of the record of a case may try the case himself, or where the offence is of grave nature, shall submit it to the President Special Military Court for trial. The President, Summary Special Military Court, may either cancel or confirm the ball granted during the investigation stage and will communicate his order to all concerned.
(4) (a) No Military Court shall entertain a case at the investigation stage or where the record of the case is incomplete subject to sub‑para. (b) below.
(b) As regards Remand and Bail during the investigation stage the officer‑in‑charge, police‑station, shall produce the accused without delay before the nearest Magistrate Sub -divisional Officer concerned for appropriate orders, which shall be final in respect of offences specified in para. 2 above, provided that the President of the Special Military Court having jurisdiction, may in respect of cases enumerated in para. 2 above, once moved to review the orders rejecting or granting the bail.
(5) The investigation report referred to above, which is submitted to the President, Summary Military Court, shall contain a summary of the statement, made by each witness during the investigation, duly translated into English. An English translation of the F. I. R. seizure lists and other relevant documents will also be attached to the original documents. A copy of the aforesaid summary of statements shall be provided to the accused by the prosecution at least 24 hours before' the commencement of his trial.
(6) The officers responsible for investigation (Police/BAC) and prosecution (PP/Pl/PSI) of the case will ensure that the case record is .complete and all relevant evidence collected before the case is put up to a Military Court for trial. If the Court finds any flaw or irregularity in the investigation1proseeu tion, the President of the Court will, where warranted, report against the persons responsible for the same to the reviewing authority for necessary action.
(7) (a) In respect of any offence, civil or Martial Law, other than those specified in para. 2 above, the Martial Law Administrator or Sub‑Administrator concerned, may at his discretion or at the request of the District Magistrate, order the trial by a Military Court.
(b) Martial Law Administrator or Sub‑Administrator may, where appropriate direct the Magistrate/ District Magistrate to transfer a case to a Military Court for trial. Where a case in which trial has commenced, is transferred, the Military Court to which the transferred, shall commence the trial de novo."
From the above in the light of clauses 2 (b) and 7 (a) of the order, it appears that for Martial Law offenses of the present kind, the S. D. O. is a mere‑conduit‑pipe for the purpose of expeditious transmission to the President, Summary Military Court.
The S. D. O. in this case has not even the powers of a Magistrate under Chapter XVIII of the Code of Criminal Procedure to examine even as to whether there is a prima fact case.
The scheme of the order leaves no room for the learned Magistrate to entertain the case for his disposal or to discharge arid it is out and out the domain of the Military Court,
It also appears that Regulation No. 61 dated 4th February 1959, provided for trial of all cases under Martial Law Regulations by Special Military Courts and Magistrates of the First Class except those which provided the penalty of death.
Regulation No. 66 of the Martial Law Regulations, amended Regulation No. 61 which provided that:‑
"With effect on and from the 1st day of March 1959, no case relating to an offence under any of the Martial Law Regulations shall be tried by any Court other than a Military Court, Special or Summary:"
On 27‑5‑1961 C. M. L. R. 61 was further amended by Regulation 86 which provided that:‑
"(1) with effect from 27th May 1961, cases relating to offences under Martial Law Regulations Nos. 18, 21, 26, 27, 31, 32, 42, 43, 44, 45, 46, 52, 54, 58, 62, 64, 65, 67, 75, 77, 80 and para graph 3 of Martial Law Regulation No. 83, shall, if the Zonal Martial Law Administrator so decides in any case, also be triable by the ordinary criminal Courts competent under the Code of Criminal Procedure, 1898, to impose the maximum penalty provided in the Martial Law Regulation to which the offence relates. (2) Where a case is tried by an ordinary criminal Court under sub‑paragraph (1) the provisions of the Code of Criminal Procedure, 1898, shall apply."
As it will appear from the above that M. L. R. No. 41 which is the present offence is not an item covered by that list. There is nothing to show any further amendment after Regulation No. 86 so as to include this item No. 41.
The result is that on the 7th of June 1962, or on the com mencing day, namely 8‑6‑1962, the matter was not pending before either the Military Court or the ordinary Court.
Mr. Tofail Ahmed sought to wriggle out of the quandary by pointing to the following provisions of Order No. 91 as appearing in the first para. thereof, namely:‑
"All Martial Law offences shall be registered with the nearest police‑station under the ordinary law of the land, provided that where the offence is not chargeable under the ordinary law, it shall be registered under the appropriate Martial Law Regulation."
He has urged that the case being registered as Martial Law offence it stood transferred to the Criminal Court under the provisions of Order No. 26.
It will be recalled that Order No. 26 only refers to transfer of cases pending immediately before the commencing day before a Special Military Court or a Summary Military Court.
In terms of 2 (b) of Order No. 91 as quoted in extenso before, the case was yet to be sent with the report to the President, Summary Military Court.
Mere registration of the offence under the appropriate Martial Law Regulation, therefore, does not mean that the proceedings were pending before the Special or Summary Military Court,
Even as pointed out the offence was registered on 14‑7‑1961, as a Martial Law offence and their charge‑sheet was submitted before the S. D. O., on 18‑5‑1962, it made little difference.
No additional copy of the F. I. R. even was sent to the Summary Military Court having jurisdiction‑the present offence under Martial Law Regulation No. 41 being not one covered by clause 2 (a) of Order 91.
Not even the charge‑sheet submitted by the police on 18‑5‑1962, was before the Military Court.
It was only lying before the S. D. O., for wholesale trans mission of the case with the report and the charge‑sheet.
Next question is as to whether the present proceedings could be saved by Article 250 of the Constitution.
Article 250 of the Constitution is in these terms:‑
"Where a law is repealed, or is deemed to have been repealed by, under, or by virtue of this Constitution, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
and any investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, for feiture or punishment may be imposed, as if the law had not been repealed."
Mr. Ahmed, the learned counsel for the State wants to say that the present proceeding is fully covered by the Article/and in support he has relied on the decision in the case of Renuka Moyee Dus as quoted already.
In that case the case against the accused actually started long before the commencing day and after commitment by Magistrate, was pending before the Sessions Court on 15‑6‑1962, which discharged the accused on the ground that the Martial Law involved expired under Article 225 of the Constitution with effect from 8‑6‑1962.
The case before us is rather different.
Although it may be said that the proceedings were launched at a time when the Martial Law was in operation, the charge- sheet by the police being on 18‑5‑1962, it could not be said that the matter was pending before either the Military Court or the ordinary Court before the commencing day.
The matter seems to be hibernating in "no man's land" before the commencing day. It did not go to the Military Court nor did it come back therefrom for disposal by the ordinary Court nor did it stand transferred.
Mr. Tofail Ahmed has next relied upon the expressions "remedy may be instituted" in clause (e) of Article 250 of the Constitution.
This raises the fundamental question of jurisdiction which has not been dealt with in the decisions laid before us.
Even assuming that clause (e) of Article 250 of the Constitu tion authorised even instituting of the case at this stage, the course would be easy if the offence had any correspondence with the ordinary law in which case there could be no total extinction of the liability.
The Legislature it seems has not provided any forum or provision for the present type of offence which is purely martial and which could not be held to be pending either before the Military Court or the ordinary Court before the commencing day of the Constitution.
Jurisdiction cannot be conferred by implication and by provisions in the nature of savings as in Article 250 of the Constitution.
There is another serious aspect of the case, namely, that the maximum sentence under Martial Law Regulation No. 41 even as modified runs to seven years' which no Magistrate in the ordinary course has the power to impose.
In the circumstances as above, we hold that the presently proceedings against the petitioners are not warranted by law.
Confronted with the rather difficult predicament, the learned Counsel for the State made commendable efforts to save the situation though without success.
The Rule is made absolute; the proceedings against the petitioners in D. A. B. G. R. Case No. 951 of 1961 now pending before the learned Magistrate are hereby quashed.
.‑I agree.
K. B. A.
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