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Criminal Miscellaneous Petition No. 1905 of 1958, decided on 17th December 1958, under section 526, Cr. P. C.

(a) Martial Law Regulation No. 1‑A (a) and No. 2‑Magis trate's Court does not become a Military Court unless convened or empowered as a Special Military Court or a Summary Military Court by the Administrator.

(b) Martial Law Regulations‑Offences under‑Joinder in one trial with offences tinder ordinary law‑Anomaly‑Separate trials necessary.

By reason of Martial Law Order No. 3, issued by the Chief Martial Law Administrator, Criminal Courts while trying offenders under the Martial Law Regulations are to follow the procedure laid down for summons cases under the ordinary law.

This is bound to lead to an anomalous position in cases in which offences under the Pakistan Penal Code and those under the Martial Law Regulations are dealt with at one trial. It is desirable, therefore, in cases where the provisions of the Pakistan Penal Code or any special law and the Martial Law Regulations are alleged to have been contravened that there should be separate trials.

(c) Martial Law Regulations‑Offences under‑Trial by Magistrate‑High Court's jurisdiction under S. 526, Cr. P. C. in matter of transfer of case remains unaffected.

Even if it be assumed that the orders of Magistrate trying cases arising out of breaches of Martial Law Regulations and Orders are not open to appeal or revision under the Code of Criminal Procedure, there being no provision to that effect in any Martial Law Regulation or Order issued by the Chief Martial Law Administrator, the power of the High Court to direct transfer of a case pending in a Court, which by reason of the Code of Criminal Procedure is subordinate to it, to another Court subordinate to it or to itself, has not been taken away and the power is not dependent on the circumstance that the case does or does not relate to a breach of Martial Law Regulation or a Martial Law Order.

The High Court's power to transfer a case remains intact by virtue of Articles 2 (2) and 4 of the Laws (Continuance in Force) Order (Post‑Proclamation I of 1958).

(d) Criminal Procedure Code (V of 1898), S. 526‑Magistrate's erroneous view that being a Military Court under Martial Law he was immune to High Court's jurisdiction under S. 526, Cr. P. C.; presentation of application for transfer of case giving rise to regis tration of another case, under Martial Law viz., impeding a Military Court in discharge of its duty‑Grounds for transfer.

Chaudhari Nazir Ahmad Khan for Petitioner.

Mushtaque Ahmad Mian, A. A. G. for Respondent.

Dates of hearing : 10th and 11th December 1958.

‑--By this petition, under section 52.6 of the Code of Criminal Procedure, Fateh Muhammad, a resident of Khuni Chak, Police Station Lalamusa, Tehsil Kharian, District Gujrat, now confined in the Judicial Lock‑up at Gujrat, seeks the transfer of a criminal case under sections 307 and 326, read with section 34 of the Penal Code, and Regulation 20 of the Martial Law Regulations from the Court of Mr. Muhammad Aslam Virk, Magistrate of the 1^st Class with section 30 powers, Gujrat, to any other Court of competent jurisdiction. The petitioner had applied to the Magistrate for adjournment of the proceedings under clause 8 of section 526 of the Code of Criminal Procedure, in order to afford the petitioner an opportunity to move a petition in this Court for transfer of the case from his Court, but the Magistrate, being of the view that he was acting as a Military Court, did not adjourn the proceedings. The matter came up at a preliminary hearing on the 3rd of December, 1958 and it was ordered that notice should issue to the State and the proceedings before the Magistrate be stayed till the disposal of the petition.

2. Some of the material facts are these. On the 22nd of November, 1958, at about 7 a.m., Sardar Khan, a resident of Khuni Chak, made a report at Police Station Lalamusa that Fateh Muhammad petitioner, his two sons and a friend of theirs had made a murderous assault on him with firearms. The case was registered under section 307/34 of the Pakistan Penal Code and investigation was undertaken. The petitioner and the other three accused were arrested on the 24th of November, 1958 and came to know that the charge against them was under sections 307 and 326 read with 34 of the Pakistan Penal Code and Regulation 20 of the Martial Law Regulations. The petitioner and his co accused were produced before Khan Abdus Samad, Magistrate 1st Class, Gujrat, on the 25th of November, 1958, and were ordered to be produced in Court again on the 2nd of December, 1958. On the 1st of December, 1958, the accused persons learnt that the case was to be heard that very day by Mr. Muhammad Aslam Virk, section 30 Magistrate, Gujrat. On the 1st of December, 1958, at 3 p.m., the case came up for hearing before Mr. Virk and the accused were given a precis of the evidence and it was directed that the case would be heard the next day. On the 1st of December, 1958, the accused persons applied to the Magistrate for grant of the copies of the statements of witnesses before the police, but no order was passed on that application it being directed that it would be considered the next day. On the 2nd of December, 1958, the accused persons moved three applications, one of which was to the effect that as they intended to move the High Court for transfer of the case, it should be adjourned for a sufficient time to enable them to do that, as required by section 526, clause (8) of the Code of Criminal Procedure. When the request for adjournment of the case to enable the accused to apply to this Court for transfer of the case was made, it appears that it was directed either by Mr. Virk or by the Prose cuting Sub‑Inspector that a case under section 16 of the Martial Law Regulations be registered against the petitioner as he was impending a Military Court in the discharge of its duty.

3. A copy of the petition for transfer was sent to the learned Magistrate for his comments. He has sent a lengthy report wherein he has said, inter alia, that the fact that he is trying a case relating to an offence punishable under Regulation 20 of the Martial Law Regulations gives him the status of a Military Court and the provisions of the Code of Criminal Procedure do not apply to the trial. If the view of the Magistrate that when he is hearing a case relating to an offence punishable under the Martial Law Regulation, he becomes a Military Court, is correct, it is obvious that his view that the Code of Criminal Procedure would not apply to him, would, to a great extent, be correct. The main question for determination, therefore, is whether the view of the Magistrate that a Magistrate trying a case relating to an offence under the Martial Law Regulations becomes a Military Court can be accepted. Regulations I‑A and 2 of the Martial Law Regulations, issued on the 7th of October, 1958, read as follows :‑

" No. 1‑A.

(2) Special Courts.‑Special Court of criminal jurisdiction shall be of the following classes:‑

(i) Special Military Courts.

(ii) Summary Military Courts.

Special Military and Summary Military Courts shall have the power to try and punish any person for contravention of Martial Law Regulations or orders or for offences under the ordinary law.

The Criminal Courts as by law established shall have power to try and punish any person for offences under the ordinary law and for contraventions of Martial Law Regulations or Orders.

(b) Special Military Courts.‑An Administrator of Martial Law may convene Special Military Courts in his area of administration for the trial of any offence committed in any area to which these Regulations extend ; provided that the term ordinary law as above mentioned shall in each case be held to include the provisions of any special law for the time being in force in that area.

Subject to the provisions of these regulations a Special Court shall be constituted in the same manner, and shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952, and the provisions of that Act and of the rules made thereunder shall apply to, and govern all such proceedings ; provided that :‑

(i) Any person exercising the powers of a Magistrate of the first class or of a Sessions Judge may be appointed a member of the Court ;

(ii) The Court may pass any sentence authorised by law or by these Regulations ;

(iii) All sentences of death shall be reserved for confirmation by an appointed Administrator of Martial Law, irrespective of his rank.

(c) Summary Military Courts.‑--An Administrator of Martial Law may, by general or special order, empower any Magistrate of the first class or any military or naval or air force officer provided that he has been specially selected for this particular duty to hold a Summary Military Court in his area of adminis tration for the trial of any offence committed in that area.

Subject to the provisions of these Regulations a Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952 and the provisions of that Act and the rules made thereunder shall apply to, and govern, all such proceedings, provided that ;

(i) No other officer shall be required to attend such proceedings ;

(ii) The Court shall not be required to record more than a memorandum of the evidence or to frame formal charges ;

(iii) The Court may try any offence without reference to superior authority ;

(iv) The Court may pass any sentence authorised by law or by these Regulations except death, transportation, or imprison ment exceeding one year or whipping exceeding fifteen stripes ;

(v) The proceedings of every Summary Court shall without delay be forwarded for review to the Administrator of Martial Law in the area in which the trial was held.

An Administrator of Martial Law may by general or special order, give directions as to the distribution among the Summary Military Courts of cases to be tried by them.

" No. 2.

Notwithstanding anything contained in these Regulations, the Criminal Courts as by law established shall continue to exercise jurisdiction over persons accused of all offences committed under the ordinary law and also under these regulations."

A special Military Court, mentioned in Regulation 1‑A is, as stated in the Regulation, to be convened by an Administrator of Martial Law, and it is provided that subject to the provisions of the regulations a Special Military Court shall be constituted in the same manner; and shall exercise the same powers and t follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952 and the provisions of that Act and of the, rules made thereunder shall apply to the Court with this difference that any person exercising the powers of a Magistrate of the first class or of a Sessions Judge may be l appointed as a member of the Court. According to section 87 of the Pakistan Army Act of 1952, a Field General Court Martial must consist of at least three members and it is, therefore, obvious that Mr. Virk, who was dealing with the case entirely single handed, was not a Special Military Court. Coming to the Summary Military Courts mentioned in Regulation 1‑A of the Martial Law Regulations, one finds that it is an Administrator of Martial Law who can, by general or special order, empower any Magistrate of the first class or any military, naval of air force officer, to try an offence committed in the area under him. Under sub‑clause (iv) of clause (c) of Regulation I‑A, a Summary Military Court cannot pass a sentence exceeding one year's rigorous imprisonment. The maximum sentence for the offences under the Pakistan Penal Code, alleged to have been committed by the petitioner and his co‑accused, is transportation for life and the offence under Regulation 20 alleged against the petitioner is punishable with a maximum sentence of ten years' rigorous imprisonment. If Mr. Virk is acting as a Summary Military Court, it should be presumed that he was to consider the offences alleged to have been committed by the petitioner to be by no means serious in nature, as he cannot pass a sentence exceeding one year's rigorous imprisonment. But I might make it clear that Mr. Virk in his report claimed for himself the status of a Special Military Court and not that of a Summary Military Court. If he had cared to read the provisions contained in Regulation I‑A, relating to Special Military Courts, it would have become clear to him that if he were to sit as such a Court, he would be only one of its members and not the whole of it.

4. It was contended by Ch. Nazir Ahmad Khan, the learned counsel for the petitioner, that Regulation 20 of the Martial Law Regulations was tagged on without any justification to the offences under sections 307 and 326 of the Pakistan Penal Code at the instance of the then Superintendent of Police, Gujrat, who was inimically disposed towards the petitioner, so that the petitioner and his co‑accused should not have the benefit of the procedure prescribed for trial of warrant cases, because by reason of Martial Law Order No. 3, issued by the Chief Martial Law Administrator on the 7th of October 1958, Criminal Court while trying offenders under the Martial Law Regulations were to follow the procedure laid down for summons cases under the ordinary law. It is not necessary for the purposes of the present petition to determine whether the contention of the learned counsel for the petitioner that Regulation 20 had been unnecessarily tagged on to the other offences is correct, but I might point out an anomaly that would arise if an offence under the Martial Law Regulations and one under the Pakistan Penal Code which, as in the present case, happens to be a warrant case, are tried together. Under the Martial Law Order 3, the offence under Martial Law Regulation No. 20 must be tried as a summons case, while the offences under the Pakistan Penal Code, 'alleged to have been committed by the petitioner and his co‑accused, will have to be tried in the manner provided by the Code of Criminal Procedure for trial of warrant cases, and this anomalous position' is bound to arise in almost all cases in which offences under the Pakistan Penal Code and those under the Martial Law Regulations are dealt with at one trial. It is desireable, therefore, in cases where the provisions of the Pakistan Penal Code or any special law and the Martial Law Regulations are alleged to have been contravened that there should be separate trials so that the difficulty pointed out above is not experienced.

5. Having held that Mr. Muhammad Aslam Virk's view that he was a Military Court was not correct, I pass on to consider whether he was subject to the jurisdiction exercised by this Court under section 526 of the Code of Criminal Procedure to transfer a case from a Court subordinate to it to another of that description or to itself. It appears necessary td discuss the question at some length, because in his lengthy report Mr. Muhammad Aslam Virk has tried to show that the fact that he is trying a case under the Martial Law Regulations makes him immune from the control of this Court. One of the reasons given by Mr. Virk for his view is that because the sentence which he passes in the case would not be open to an appeal to any Court mentioned in the Code of Criminal Procedure, no part of the Code of Criminal Procedure was applicable to him. It is not necessary for the purposes of this petition to determine whether or not a sentence passed by Mr. Virk in the case before him can be questioned by an appeal to the Sessions Judge or to this Court, but even if it be assumed that the order of the Magistrate would not be open to an appeal in the manner men tioned in the Code of Criminal Procedure, it does not follow that the entire Code will be inapplicable to him. Under the Code of Criminal Procedure, in addition to having power to hear appeals in certain cases, the High Court possesses, inter alia, powers of revising the orders of all Courts subordinate to it, to grant bail in cases pending in any Court in the province and to transfer cases pending in any Court subordinate to it, and even if it be assumed that the orders of Magistrate trying cases arising out of breaches of Martial Law Regulations and Orders are not open to appeal or revision under the Code of Criminal Procedure, there being no provision to that effect in any Martial Law Regulation or Order issued by the Chief Martial Law Administrator, the power of the High Court to direct transfer of a case pending in a Court; which by reason of the Code of Criminal Procedure is subordinate to it, to, another Court subordinate to it or to itself, has not been taken away and the power is not dependent on the circumstance that the case does or does not relate to a breach of Martial Law Regulation or a Martial Law Order.

6. In this connection I may refer to sub‑paragraph (2) of paragraph 2 and paragraph 4 of the Laws (Continuance in Force), Order 1958, which was issued by the then President of Pakistan on the 10th of October 1958. The above‑mentioned provisions of that order read as follows :‑

"2, (2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and, subject further to the provisions of this Order, in their powers and jurisdictions.

"4. (1) Notwithstanding the abrogation of the late Constitution, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council. Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, by‑laws, Regulations, Notifica tions, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immedi ately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.

(2) In this Article a law is said to be in force if it has effect as law whether or not law has been brought into operation.

(3) No Court shall call into question any adaptation made by the President under clause (1).

Sub‑paragraph (2) of paragraph 2 preserves all jurisdictions of this Court including the powers to order the transfer of a case from the Court of a Magistrate, while paragraph 4 keeps intact the Code of Criminal Procedure the 526th section of which confers on this Court the power to transfer a case from a Court subordinate to it to another Court or to itself. In view of what D has been said above, it is hardly open to question that the High Court can transfer a case from, the Court of any Magistrate or Sessions Judge in West Pakistan notwithstanding the fact that the case relates to a breach of a Martial Law Regulation or a Martial Law Order.

8. I now proceed to consider whether an order of transfer, of the case is indicated. The view Mr. Virk has expressed about his own powers makes it desirable that he should not hear the case. Moreover, there is the fact that the request of the petitioner for an adjournment mentioned in clause (8) of section 526 of E the Code of Criminal Procedure resulted in a move to start a case under Martial Law Regulation No. 16 against him on the ground that he was obstructing, impeding and interfereing with a person acting in the execution of his duty under Martial Law. It is not necessary for the purposes of the present petition to deter mine whether Regulation No. 16 applied to the act of the petitioner, but it is obvious that an accused person, treated in the manner that the petitioner was, would feel that his fate was sealed with regard. to the case that was being tried. The learned Magistrate in his report has said that it was not he but the Prosecuting Sub‑Inspector who took steps, for registration of a case under Regulation No. 16 against the petitioner, while the assertion of the petitioner is that the Presiding Officer of the Court did so. It is not necessary to determine which of these two versions is correct but assuming that it was the Prosecuting Sub -Inspector who moved in the matter because the petitioner had the temerity of presenting an application to the Magistrate that he wanted to apply for the transfer of the case, the fact that the Prosecuting Sub‑Inspector did all this in the presence of the Magistrate would make the accused entertain apprehensions that the Magistrate would not deal with his case fairly. Consequently, I consider that the transfer of the case from the Court of Mr. Muhammad Aslam Virk is necessary and I would direct that the case should go to the District Magistrate, Gujrat, who will either hear it himself or entrust its trial to another Magistrate of competent jurisdiction.

--‑I agree.

A. H. Case transferred.

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