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Constitutional Petition No. 721 of 1978, decided on 15th May 1978.

Read with Whipping Act (IV of 1909), S. 2‑Whipping‑Sentence of whipping not an innovation of Martial Law Authorities but a punishment prescribed under S. 2 of Whipping Act, 1909‑Summary Military Court, held, competent to award such punishment under M. L. O. No. 4.‑[Sentence].

Begum Nusrat Bhutto's case P L D 1977 S C 657 ref.

‑‑ Taking out processions and distributing provocative leaflets-- Accused admitting to have arranged, organized and led May Day procession and distributed leaflets, banners and placards among pro-cessionists containing provocative material‑Accused also admitting to be aware of fact of procession being illegal and banned‑Conviction and sentence awarded by Summary Military Court, held, not faulty.

S. A. Wadood for Petitioner. Zahoorul Haq, A: G. for Respondents.

The petitioner, who is Acting Chairman of Mazdoor Kissan Awami Rabita Committee, has filed this petition challenging conviction of 12 persons by Summary Military Court for violation of Martial Law Regulations Nos. 12, 13, 33 (2) (d). It was contended that the said Regulations could not be validated under the doctrine of necessity, as enunciated by the Supreme Court in the judgment of Begum Nusrat Bhutto (P L D 1977 S C 657). It was further contended that the sentence of lashes was violative of Army Act, 1952 and International Covenants on Human Rights. Another contention, which was stressed with great force, was that M. L. R. 12 had been repealed by M. L. R. 23 and as such the punishment awarded under the latter Regulation could not be sustained in law.

We issued notice to the Advocate‑General in order to ascertain facts, without admitting the petition. The learned Advocate‑General produced the record of the proceedings of the Summary Military Court, which was also examined by Mr. S. A. Wadood on 10‑5‑1978, and on his request adjournment was granted to enable him to file counter‑affidavit, which, however, was not done.

We had the occasion to examine the validity of various Martial Law Regulations and Orders, issued by the Chief Martial Law Administrator, and the issue stands concluded by our judgment dated 9‑5‑1978, passed in Cont. Petition No. D‑52/78, and connected petitions, and as such, the said question is not open to any further examination by us.

In so far as the validity of sentence of whipping is concerned the same is not an innovation of the Martial Law Authorities and is a punishment which was provided as far back as 1909, under the Whipping Act of that year (Act IV of 1909). Section 2 of the Act provides that in addition to the punishments prescribed under section 53 of the Pakistan Penal Code certain offenders are liable to punishment of whipping. The Summary Military Court was competent to award this punishment, not exceeding 15 stripes, under M. L. O. No. 4. The Chief Martial Law Administrator, who could validly promulgate various Martial Law Regulations and Orders as already held by us, was certainly competent to provide for this special punishment, for the contravention of any Martial Law Regulation or Order, and, therefore, no exception can be taken to the punishment of whipping.

The learned Advocate‑General, who appeared on Court notice, con tended that the accused were not at all convicted under M. L. R. 12 and, therefore, the allegation, that punishment to the accused was awarded under a repealed Regulation, is without foundation. We, have examined the record and we find that none of the accused were sentenced under M. L. R. 12. The contention raised in this behalf is, therefore, completely devoid of any substance.

Neither the learned counsel was able to point out any breach of the Pakistan Army Act or Rules nor have we been able to find anything wrong in the record of the proceedings, which has been examined by us. The accused Javed Shakoor, who was the Chairman of the Mazdoor Kissan Awami Rabita Committee, had admitted before the Summary Military Court that he had arranged, organised and led the procession on 1st May 1978, and had distributed leaflets, banners and placards, which were carried by the processionists. He also admitted that he was fully aware of the fact that procession were illegal and banned but in spite of the same he had organised and led the procession. He however, stated that he had done so thinking that it was his right to do so. We have also read one of the leaflets which were distributed on the occasion and the same contains highly provocative material. The said Javed Shakoor was also asked if he wanted to call any witness in defence, which he declined. All the other accused had pleaded guilty and stated that they were aware that taking out of procession was illegal but despite the same they had participated in the procession. Accordingly we do not find any, fault with the trial by the Summary Military Court.

In the result, we find no merit in the petition which is dismissed in limine.

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