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Writ Petition Nos. 465 and 478 of 1956, decided on 20th May 1957.
First Schedule Article 59-Failure to record reasons for ordering Court martial at a shore establishment instead of on board a ship-Irregularity not affecting jurisdiction of Court.
Failure to record reasons for ordering a Court martial to be held at a shore establishment instead of on board a ship is a mere irregularity and cannot affect the legality of the trial or conviction unless it be shown that this irregularity affected the petitioner prejudicially.
This failure cannot affect the jurisdiction of the Court martial duly constituted under Article 58 of the said Schedule.
Krishnamurthi Ayyar v. Krishnamurthi Ayyar and another A I R 1927 P C 144 and N. A. Subramania lyer v. King Emperor 28 I A 257 ref.
S. 13 (3)-Inappli cable to Court martial proceedings held in accordance with Schedule to Pakistan Naval (Discipline) Act (XXXIh of 1934).
, First Schedule Article 62-Court martial deemed to be duly constituted if opportunity of raising objection not availed of.
Held, that constitution of a Court martial cannot be found fault with if opportunity to raise objections under Article 62, First Schedule, Pakistan Naval (Discipline) Act (XXXIV of 1934) has not been availed of.
Held, therefore, that Article 62 was a complete answer to a case where the authority ordering a Court martial, instead of naming only the person who was to preside and who was then to summon other officers to sit on the Court with him, nominated all the members of the Court martial.
Hassanally for Petitioner.
Fayaz Ali and Pesh Imam for Respondents.
LARI, J.--These two writ petitions- can be disposed of by a common order.
Writ Petition No. 465 of 1956, has been filed by Abdul Hadi Haquani lately Lieutenant in the Pakistan Navy. He was tried and convicted by a Naval Court Martial for offences punishable under sections 3 (1) (c) of the Official Secrets Act 1923, (5) (1) (a) of the same Act and 28 of Pakistan Navy (Discipline) Act, 1934. The connected Writ Petition No. 478 of 1956 has been filed by Muhammad Sher Khan Ibrat lately Commander and Senior Supply Officer, Dilawar. He too was tried and convicted by a Naval Court Martial for offences punishable under sections 28 and 43 of Pakistan Navy (Discipline) Act,1934 an, under section 5 of the same Act read with section 409 of the P. P. C.
The most important contention raised on behalf of i e petitioners is that under Article 59 of the First Schedule to the Pakistan Naval (Discipline) Act XXXIV of 1934 a Court martial must be held on board one of His Majesty's ships or vessels of war, unless otherwise directed by the Central Government or the officer ordering the Court martial for reasons to be specifically recorded on the proceedings in which case the Court martial could be held at a port. 1n these cases the Court martial were held on a shore establish ment without any reasons being recorded for the same. This procedure, according to the contention of the petitioners, has rendered their convictions without jurisdiction and illegal.
Article 59 runs thus:-
"A Court martial under this Act shall be held on board one of His Majesty's ships or vessels of war, unless the Central Government or the officer who ordered the Court martial in any particular case for reasons to be recorded oil the proceedings otherwise direct, in which case the Court martial shall be held at a port at such convenient place on shore as the Central Government of the officer who ordered the Court-martial shall direct."
The Court martial in both the cases were ordered by the Naval Admiral who directed that the trial be held on Naval Establishment known as Dilawar. No reasons for ignoring a ship or vessel of war was recorded. The effect of Article 59 is that ordinarily a Court martial shall be held on board one of his Majesty's ships or vessels of war but it can also be held at a port on shore as directed by the officer ordering the Court martial. The only condition precedent is that the Central Government or the officer who ordered the Court martial shall record the reasons. The simple question therefore for consideration is whether the failure to record reasons for ordering holding of a Court martial oil shore vitiates the trial and the resultant conviction. To our mind the failure to record reasons is a mere irregularity and cannot affect the legality of the trial or conviction unless it be shown that this irregularity affected the petitioner prejudicially.
It is nobody's case that holding of the Court martials on a shore establishment has prejudiced the petitioners in any way. The argument of Mr. Brohi is that mere non-compliance with Article 59 renders the trial illegal. It has to be borne in mind that holding of a Court martial on a shore establish ment is not prohibited. In fact it is expressly permitted provided the reasons for the same are recorded. This failure cannot affect the jurisdiction of the Court martial duly] constituted under Article 58 of the said Schedule. Reference) may be made to the observations of their Lordships of the Privy Council in Krishnamurthi Ayyar v. Kirshnamurthi Ayyar and an others (A I R 1927 P C 144) whereby they distinguished the case of N. A. Subramania lyey v. King Emperor (28 1 A 257).
It was contended on behalf of the respondents that as a result of retrospective amendments introduced by Ordinance XXV,of 1956 replaced by Act VIII of 1957 His Majesty's ships or vessels of war included Naval Establishments. As we have reached the conclusion that the trial is not void or illegal by mere holding of the Court martial. on a shore establishment it is not necessary to decide the effect of Ordinance XXV of 1956 or Act XIII of 1957.
Two additional points were urged in Writ Petition No. 465 of 1956. One is that by virtue of section 13 (3) of the Official Secrets Act the Court martial could not take the cognizance of the offences falling within section 3 of the Official Secrets Act without a complaint made by order or under authority from the appropriate Government or some officer empowered by the appropriate Government in this behalf. It is admitted that no complaint was filed as required by section 13 (3) of the Official Secrets Act. But the trial was not held under the provisions of Official Secrets Act. Petitioner Abdul Hadi Haquani was tried and convicted by a Court martial by virtue of the provisions of Articles 45, 46, and 56 of the Schedule to the Pakistan Naval (Discipline) Act. In view of Article 46 for all offences specified or referred to in the Pakistan Naval (Discipline) Act the offender may be tried and punished under the Naval (Discipline) Act. Offences contemplated by the Official Secrets Act are referred to in Article 45 and are punishable either in pursuance of the first part of the Naval (Discipline) Act as for an Act to the pre judice of good order and naval discipline not otherwise speci fied, or with the same amount of punishment as might for the time being be awarded by any ordinary competent criminal tribunal. Article 56 lays down that an offence triable under the Act may be tried and punished by Court martial. Section 3 of the Official Secrets Act is referred to in order to determine whether the act ascribed to the offender falls within the mischief of section 3 of the Act or not so as to make it triable and punishable under Article 46 read with Article 45 of the Schedule. The procedure to be followed is not that which is laid down in the Official Secrets Act. The Court martial has to proceed in accordance with the Schedule to Pakistan Naval (Discipline) Act. The Court martial itself has to be ordered either by the Central Government or some officer authorised by the Central Government. A complaint by the same authority would therefore be superfluous. After full consideration we have come, to the conclusion that section 13 (3) does not apply to the proceedings before the Courts martial held in accordance with the Schedule to Pakistan Naval (Discipline) Act.
The other point urged on behalf of the petitioner Abdul Hadi Haquani was that the authority ordering the Court martial can only name the officer appointed to preside over the Court martial. It is such officer who has to summon all officers next in seniority to himself present at the place where the Court martial is to be held to sit thereon till the number of nine is complete. In this case all the members of the Court martial were nominated by the authority ordering the Court martial. Article 62 however is a complete answer to this contention. It runs thus:-
" As soon as the Court is assembled, the names of the officers composing the Court skull be read over to the person charged, who shall be asked if he objects to being tried by any member of the Court; if the person charged shall object to any member, the objection shall be decided by the Court; if the objection shall be allowed, the place of the member objected to shall be filled up by the officer next in seniority who is not on the Court martial, subject to the regulations hereinbefore contained.
The person charged may then raise any other objection which he desires to make respecting the constitution of the Court-martial, and the objection shall then be decided by the Court which decision shall be final, and the constitution of the Court-martial shall not be afterwards impeached, and it shall be deemed to have been in all respects duly constituted."
A special point was urged on behalf of the petitioner Muhammad Sher Khan Ibrat. It was to the effect that the Court-martial had a bias against the petitioner and con sequently the trial by that Court-martial was vitiated. We felt uneasy while dealing with some of the orders passed by the Court-martial but on the whole we came to the conclusion that the petitioner has failed to establish a bias in the members constituting the Court-martial so as to vitiate the trial.
The result is that both the petitions fail and they are dismissed.
A. H. Petitions dismissed.
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