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Criminal Appeal No. 6 and Criminal Miscellaneous No. 30 of 1979, decided on 15th March 1979.

Criminal Procedure Code (V of 1898)‑

‑‑ S. 498‑Bail‑Summary Military Courts and other Tribunals-- Bound to act strictly within four corners of law including Martial Law Regulations and Orders, etc. as well as Pakistan Army Act, 1952 and Pakistan Army Rules, 1954‑Record silent regarding affording to petitioner accused an opportunity to cross‑examine a prosecution witness‑Case diary showing petitioner having asked for time to produce defence witnesses but same record showing petitioner having not intended to call any witness in defence‑State Counsel not able to advance any convincing arguments either on law or on facts‑Peti tioner sentenced to imprisonment but no possibility of disposal of case by High Court for quite a long time‑Bail application, held, could not be kept pending till disposal of main petition challenging validity of petitioner's conviction‑Bail allowed in circumstances.‑[Mr. Zulfikar Ali Bhutto v. State P L D 1978 S C 40 ; Nawab Khan v. Waris 1qbal P L D 1976 S C 394 and Muhammad Ismail v. State P L D 1956 Lab. 862 held not applicable].

Begun: Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan P L D 1977 S C 657 and Dil Muhammad v. Summary Military Court and others P L D 1978 Lab. 796(2) ref.

P L D 1978 S C 40 ; P L D 1976 S C 394 and P L D 1956 Lab. 862 held not applicable.

Azizullah Memon for Petititoner.

Muhammad Yousuf Ch., A. A.‑G. (Baluchistan) for Respondents.

ORDER

KHUDA BAKHSH MARRI, C. J.‑This order will dispose of the bail application moved on behalf of petitioner Sardar Bahadur Khan. It was filed by him with Constitutional petition challenging his conviction under Martial Law Regulation 21 on 18th January 1979, before this Court.

On 25th February 1979, this application came for hearing but with consent of both the learned counsel, we ordered to hear the bail application alongwith the case on 4th March 1979. On 4th of March, the case was adjourned for the production of the record. On 7th March 1979, after hearing arguments of the learned counsel for the petitioner, the learned A. A.‑G. requested for adjournment of the case for seeking further instructions particularly, on a new point raised by the learned counsel for the petitioner with regard to para. 7 of the Martial Law Regulation No. 21. On 12th of March 1979, we heard the learned counsel for both parties and intended to dispose of the case, but during the course of arguments certain difficulties arose, particularly interpretation of para. 7 of Martial Law Regula tion No. 21, the learned A. A.‑G. was not in position to meet the contention of the petitioner. This Court as such needed assistance of Attorney --General of Pakistan, who is said to be going abroad for Medical treatment and would not be available to appear before 31st May 1979. The matter as such was adjourned. However, we ordered for disposal of the bail application. The learned A. A.‑G. requested for two days time for getting further instructions with regard to the bail application.

Mr. Azizullah Memon, learned counsel for the petitioner contended that authenticated copy of notification authorizing the Court to take the cognizance under para. 7 of Martial Law Regulation No. 21 was not produced. The taking of cognizance as such by the Summary Military Court was illegal. He further contended that on face of the record, the provisions of section 112 of Pakistan Army Act of 1952 and rules made thereunder were flagrantly violated by the Summary Military Court. Besides the opportunity of calling the defence witnesses was not given to the petitioner.

We are surprised that the learned A. A.‑G. produced before us an affidavit of Brigadier Muhammad Arif Khan, President of Summary Military Court, Quetta, wherein it has been alleged that P. W. Muhammad Azeem was summoned as a Court witness, but due to oversight it was not recorded so and he was described as a prosecution witness. Furthermore, the deponent admits that through oversight the digits "XXX" denoting the cross-examination of the accused could not be inserted by the typist and the fact remains that the petitioner has cross-examined the witness. Indeed this affidavit supports contention of the petitioner.

Besides, the record of the case is before us; Muhammad Azeem Transpor Assistant S. & G. A. D. has been shown as prosecution witness in the case. The record is silent regarding affording the opportunity of cross-examination to the petitioner. The learned A. A: G. in vain submitted that the were only minor irregularities but not illegalities and were curable under law.

Additionally, the diary dated 17th December 1978, of the President, Summary Military Court shows that the petitioner had asked for time to produce defence witnesses. But it is interesting to note that the same B record shows that the petitioner did not intend to call any witness in defence. The learned A. A.-G. has not been able to explain these discrepancies in the record. He however tried to give evasive replies to the Court questions.

The petitioner has been sentenced to undergo imprisonment for on year on 19th December 1978. There is no possibility of the disposal of the case at least before 31st May 1979, as the learned A. A.-G. is not in position to meet the contention raised by the petitioner in respect of para. 7 of c M. L. R. 21. The bail application of the petitioner, as such could not be kept pending till the disposal of the main petition. The disposal of the bail application as such was felt necessary at this stage.

In case of Begum Nusrat Bhutto v. Chief o-t Army Staff and Federation of Pakistan (P L D 1977 S C 657) it has been held :-

"That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or order, Presidential Order or Ordinance."

In case, Dil Muhammad v. Summary Military Court and others (P L D978 Lab. 796) it was held;

"The Summary Military Court have been exercising an exceptional jurisdiction rooted in State necessity. They have a limited jurisdiction and therefore if they assume jurisdiction they must do it within the four corners of the law that they have themselves framed. If they have any misconception about it or are mistaken about it, or overreach it or apply it in utter disregard of facts and circumstances of the case, then it is not possible to defend their actions on the ground of substantial justice."

In view of the law laid down in the above cited judgment, there cannot) be two opinions that the Summary Military Courts and other Tribunals if they assume jurisdiction, are bound to act strictly within the four corners of the law which include Martial Law Regulations and Order etc. as well as Pakistan Army Act, 1952 and Pakistan Army Act Rules, 1954.

Coming to the merits, the learned Assistant Advocate-General has failed to advance any convincing arguments either on law or on facts. The principles laid down in authorities P L D 1978 S C 40, P L D 1978 Lab. 148, P L D 1976 S C 394 and P L D 1956 Lab. 862, relied upon by the learned Assistant Advocate-General simply do not apply to the circumstances of the case before us. Hence they are of no avail to him.

For the reasons given above, we direct that the petitioner be released on bail on furnishing surety in the sum of Rs. 5,OC0 with personal bond o B the like amount to the satisfaction of the Additional Registrar of this Court. The petitioner is directed to attend this Court till disposal of the case.

S. A. H. Bail allowed.

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