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Intra-Court Appeal No. 129 of 1979, decided on 11th June, 1979.
----No. 37, para. 3 read with Penal Code (XLV of 1860), Ss. 420, 471 & 468, P. P. C.-Transfer of case from Military Court to ordinary Court-Order of High Court justifying trial of accused by Military Court for alleged offences under Ss. 420 & 471, P. P. C. challenged on grounds of requirement of public interest necessitating trial by Military Court not being mentioned in order; there being no legal necessity of trial by Military Court a Brigadier being a complainant, and unlikely for accused to receive even-handed justice in a Military Court-Grounds, however, not found based on correct legal analysis in view of nature of allegations against, and placement of accused at that particular time, and Brigadier being o officer of appellant a natural complainant in respect of what was happening in his name in his Court-Order maintained, in circum stances.-[Transfer of criminal cases].
Muhammad Aslam v. The State 2 another 1979 P Cr. L J 211 ref.
Ghulam Nabi Bhatti for Appellant.
This is an Intra-Court-Appeal under section 3 of the Law Reforms Ordinance, 1972.
2. The appellant was posted as a clerk and attached with Brigadier Muhammad Sharif, President Disqualification Tribunal No. 2, Lahore, when a cage under section 420/471/468, P. P. C. was registered against him and he is now required to stand his trial in a Military Court. The appellant invoked the Constitutional jurisdiction of this Court challeng ing such a trial. The learned Judge in Chambers held that "there are special features of this case which justify its trial by Summary Military Court". The Court also observed that -in my view these are extra ordinary circumstances which justify the trial of the petitioner by the Summary Military Court. It is in the public interest that cases of such serious nature should be disposed of expeditiously and culprits brought to book without delay".
3. The learned counsel for the appellant has taken up three grounds for challenging the order under appeal. Firstly, it is stated that as required by para. 3(1) of M. L. O. 37 the requirement of public interest which necessitated the trial by a Military Court, has to be mentioned in the order directing the trial of the case by the Military Court. Secondly, it is stated that even otherwise there was no legal necessity that its trial should be by a Military Court. Thirdly, it is contended that a Brigadier being the complainant, it is unlikely that the appellant will receive even-handed justice in a Military trial.
4. It is one of those cases where para. 3 of M. L. O. 37 is not applicable for it does not relate to transfer of a case from an ordinary Criminal Court. The assumption of jurisdiction and the trial would rather be under para. 2 then under para. 3 and if an order under para. 3 has been passed, it will be a mere surplusage. The jurisdiction under para l remains unaffected by the satisfaction or non-satisfaction of any such requirement.
5. As regards the legal necessity, we are in one with the learned Judge in Chambers that the case of the appellant has certain special' features and that it can be singled out from all others of which a reference has been made by the learned counsel for the appellant particularly on the basis of decision in W. P. No. 294/79 and the case of Muhammad Aslam v. The State and another (1979 P Cr. L J 211). In both those cases the finding was that the cases were of an ordinary nature displaying no exceptional feature. The view formed by the learned Judge in Chambers as well as by us is a different one, in this case.
6. The next submission of the learned counsel is that the complain ant being a Brigadier even-handed justice will not be available. Keeping in view the nature of the allegation and also the placement of the appellant at that particular time, he was the natural complainant. Nobody else could take note of what was happening in his name allegedly and how the position of the Tribunal was being used or abused.
7. We find no merit in this appeal which is dismissed in limine.
Appeal dismissed.
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