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Writ Petition No. 3212 of 1979, decided on 21st July, 1979.

‑‑ No: 7 as reconstituted by Martial Law. Order, 1977 [M. L. A. (Zone ' A')l No. 253 read with Pakistan Criminal Law Amendment Act (XL of 1958), S. 6 (5)‑Martial Law Order 7‑A new offence for all intents and purposes and triable by a Military Court inde pendently‑‑Legislature, held, competent to do away with provisions of Pakistan Criminal Law Amendment Act,. 1958, in regard to sanction for prosecution.‑[Sanction for prosecution].

Dil Muhammad v. Summary Military Court and others P L D 1978 Lah. 796 (2) ; Manzoor Ahmad v. President, Summary' Military Court No. 3, Karachi.P L D 1979 Kar.:623 ; Muhammad Niaz v. Martial Law Adminis trator, Zone D', Quetta card 4.otkers P L D 1979 Quetta 179‑ and Mapal Khan v. Martial Law Administrator, Ztine A', Lahore P L D 1978 Lah. 766 ref.

Nemo for Appellant.

Rashid Aziz, Addl. A.‑G. for Respondents.

Date of hearing : 21st. July 1979.

This is a writ petition to challenge, the trial of the petitioner pending before a Summary Military Court for offences under section 161, P. P. C., section 5 (2) of the Prevention of Corruption Act, 1947, and Martial Law Order No. 7 read with Martial Law Regulation No. 14.

2. The argument of the learned counsel is that a person who can be tried by a Special Judge under the Criminal Law Amendment Act, 1958, can not be tried by a Summary Military Court. He also submitted that Martial Law Order No. 7 was not a new law‑ which could be tried by t‑he Summary Military Court irrespective of the provisions of section 161, P., P. C. and section 5 (2) of the Prevention .of Corruption .Act, 1947. In his connec tion, the learned counsel relied upon Dil Muhammad v. Summary Military Court and others (P L D 1978 Lah.796)., Manzoor Ahmad v. President, Summary Military Court No. 3, Karachi (P L D 1979 Kar.623) and Muhammad Niaz v. Martial Law Adminis trator, Zone D, Quetta and 4 others (P L D 1979 Quetta 179).

3. The last case cannot be looked into since an appeal was taken in that case to the Supreme Court (Civil Appeal No.99 of 1978). Later on the case was sent back to the Special Judge for being tried under the normal law of the land. It was in these circumstances that the appeal was dismissed as infructuous but subject to the observation that the decision will not affect any other case pending before the Military Courts concerning the schedule of offences triable under the Criminal Law. (Amendment) Act.

The case Dil Muhammad v. Summary Military Court and others is distinguishable. Several writ petitions were allowed on the ground that Martial Law Order No. 7, as it then stood, was not a law the contravention of which could be held to be punishable under Martial. Law Regulation No. 14.

At that time Martial Law Order No. 7 read as follows :‑

"Whosoever offers or attempts to offer bribe or illegal gratification in any form or manner and whosoever accepts such bribe or illegal gratification, and whosoever abets or induces or attempts to induce someone to offer or accept bribe‑ or illegal gratification in any manner or form with the object that in the course of transaction of official business some favour or disfavour shall be obtained for any one, some service, or‑ disservice shall be rendered for undue benefit of someone, shall be tried by. a military Court."

4. Martial Law Regulation No. 14 provides that ""contravention. of any Martial Law Order shall be punished with rigorous imprisonment for a term which may extend to 5 years, forfeiture of property, and/or whipping not exceeding 20 stripes". Since Martial Law Order No: 7 did not create any offence, it was held that there was nothing to contravene in that. Order ,and as such Martial Law Regulation No: 14 was not applicable.

5. By the time that this judgment was rendered, Martial Law Order No. 7 had been re‑constituted as from the 18th January, .1978,' though the reconstitution was with retrospective effect. The reconstituted Martial Law Order No. 7 provides,

"No person shall offer or attempt to offer bribe or illegal gratification in any form or manner and no person shall accept any bribe or illegal. gratification for himself or any other person ‑or induce or attempt to induce any person to offer or accept such bribe or illegal gratifica tion in any form other than a legal remuneration as a motive or reward for doing or for bearing td do any act or for showing favour or disfavour to any person, in relation to an official business."

Since this Martial Law Order was reconstituted later, it was held that it .was not applicable.. It was also observed that the Summary Military Courts 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.

6. Karachi case is also not, different from this case. In that case Martial Law Order No: 5 issued by the Martial Law Administrator, Zone C' provided only for investigation and trial of corruption cases but did not create any new offence. There are, no doubt, certain observations which favour the petitioner but. they are clearly obiter and cannot be taken into consideration.

7. Now Martial‑Law Order No. 7 has been once was re‑constituted ‑With effect from the 11th April, 19'79, by Martial Law Order No. 253 which is as follows : ‑

"(1) No person being or expecting to be a public servant .or being an employee of a corporation. association or body in which the Government has any financial interest; shall accept or obtain or agree to accept or attempt to obtain from any person, for himself or, for any other person, any gratification whatever, other than legal remunera tion as motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person or with any public servant or employee of a corporation, association or body in which the Government has any financial interest.

(2) No person, being a public servant or being an employee of a Corporation, association or body in which the Government has any financial interest, shall accept or obtain, or agree to accept or ‑attempt to obtain, for himself or for any other person any valuable thing without consideration, or for .a consideration which he knows to be inadequate; from any person whom he knows to have been, or to be likely to be concerned in any proceeding or business tran sacted or about to be transacted by such public servant or employee, or having any connection with the official functions of himself or of any public servant or employee to whom he is subordinate, or from .any person whom he knows to be interested in or related to the person so concerned.

(3) No person shall accept or obtain or agree to accept or attempt to obtain from any person, for himself or for any public servant or an employee of a corporation, association or body in which the Government has any financial interest, any gratification whatever as a motive or reward for inducing such public servant or employee, by corrupt or illegal means, to do or forbear to do any official act or to render or to attempt to render any service or disservice, to any person in the exercise of the official functions of such public servant or employees

(4) Contravention of paragraphs Nos. 1 to 3 above shall be punishable under MLR‑14 and its abetment under MLR 86."

Now that". Martial Law Order. has been twice .re‑constituted,, it is clear that at least 'as from 18th January. 1978, it created a new offence. The sentence for that offence under Martial Law Regulation No. 14 is also different. It may be stated that while the sentence for an offence under section 161, P. P. C. is 3 years or fine or both and in section 5 (2) of the Prevention of Corruption Act is 7 years or fine or both, the sentence for an offence inter alia under Martial Law Order No. 7 is five years' rigorous imprison ment, forfeiture of property and/or whipping not exceeding 20 stripes. While the maximum sentence in MLR 14 is reduced to five years, .much more deterrent sentences of forfeiture of property and of whipping have been added. To all intents and purposes the offence under Martial Law Order No. 7 as re‑constituted is a new offence. This question is not with out authority now. In Mapal Khan v. Martial Law Administrator, Zone A Lahore.(P L D 1978 Lah.766) it was held that Martial Law Order No. 7 of 1978, as amended in 1978, creates a special offence in the peculiar situation prevalent in. the country. This provision was held to be valid.

8. The argument of the‑ learned counsel that for trial of an offence under the Criminal Law (Amendment) Act, sanction of the Government is necessary while under the present law it is not necessary, is of no con sequen6c. Once it is held that. Martial ‑Law Order No.7 creates a new offence, it is opera to the Legislature to do away with the provisions of the Criminal Law (Amendment) Act in regard to sanction.

9. This petition is without force and is dismissed.

Petition dismissed.

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