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Writ Petition No. 580 of 1979, decided on 22nd September, 1979.

‑‑‑Art. 199‑‑Martial Law Regulation [C.M.L.A.'s] No. 31‑‑Conviction‑ Whether maintainable‑‑Accused allegedly failed to appear before Sub‑Martial Law Administrator in response to notification‑‑Accused required by police in some case registered against him‑‑F.I.R. not produced‑‑No order produced indicating that case was entrusted to Military Court‑‑No charge under any Martial Law Regulations or Martial Law Order made out‑‑Accused not wanted by any Military Court‑‑No charge‑sheet served on accused‑‑Accused never, asked whether he pleads guilty or not guilty‑‑Accused, held, was seriously prejudiced by non‑compliance of provisions of law and he could not be proceeded against under M.L.R. No. 31‑‑Conviction and sentence, set aside.

Muhammad Nawaz Abbasi for Petitioner.

Khalil‑ur‑Rehman Ramdey, Asstt. A.‑G for Respondent.

Date of hearing: 22nd May, 1979.

Muhammad Rafiq petitioner was tried by Summary Military Court No. 18, Rawalpindi, for an offence under Martial Law Regulation No. 31. The said Summary Military Court vide its order, dated 20th November, 1978, convicted the petitioner and sentenced him to 1 year's R.I. and confiscated all movable and immovable property of the petitioner.

The petitioner has assailed his conviction and sentence by means of this writ petitions. This judgment will dispose of the same.

It is alleged by the prosecution as per charge‑sheets that the petitioner failed to appear before Headquarter S.M.L.A. Sub‑Sector 2 without showing reasonable cause, on 10th August, 1978, in response to Notification No. L‑7532, dated 20th August, 1978 which was published in the Punjab Gazette, dated 20th August, 1978, and thus committed A an offence punishable under Martial Law Regulation No. 31.

3. Prosecution produced Major Talaat Khurshid, P.W. 1, in support of its case. He stated that the petitioner was required by the police as a co‑accused in a criminal case (F.I.R. No. 218 of 11th June, 1978). He further added that in spite of the best efforts of the police, petitioner could not be arrested and thereafter, the Headquarter S.M.L.A. Sub Sector 2 approached Headquarter D.M.L.A. Sector‑5 for the publication of Gazette Notification by M.L.A. Zone‑A, seeking to declare the petitioner as an absconder under C.M.L.A. No. 6 and M.L.R. No. 31. This Notification was duly published in the Punjab Gazette of 20th August, 1978.

4. The F.I. R. No. 218 of 11^th June, 1978 which had been referred to by Major Talaat Khurshid, P.W. 1, is not on the record. There is no order on the record indicating that the criminal case based on the said F.I.R. was ever entrusted for trial to Summary Military Court or for that matter to any Military Court. Major Talaat Khurshid, P.W. 1, has categorically stated that the petitioner was required by the police p as a co‑accused in the case. Section 87, Cr.P.C., is available to the police for instituting appropriate proceedings against an absconding accused. There is nothing on the record to indicate that the petitioner, was charged under any Martial Law Order or Martial Law Regulation or that he was wanted by any Military Court whatever. In the absence of this evidence, he could not be proceeded against under C.M.L.O. No. 6 or M.L.R. No. 31.

Moreover, there is nothing on the record to establish that tape charge‑sheet was ever served upon the petitioner. The record of the case which has been produced by Mr. Khalilur Rehman Ramdey, learned Assistant Advocate‑General, and which has been perused with the help of the learned counsel for the parties does not reveal that any such charge‑sheet was served upon the accused /petitioner. Record does not reveal that the accused was ever asked whether he pleads guilty or not guilty, although he is reported to be present at the time of the announcement of the sentence. This entire enterprise is contrary to Pakistan Army Rules Nos. 99 and 102. The accused /petitioner has been) seriously prejudiced by the non‑compliance of these provisions of law.

5. In view of the above discussion, I hold that this was a case of no evidence and that the petitioner in this case could not be proceeded against M.L.R. No. 31. His conviction and sentence is declared to be illegal and without lawful authority. He is set at liberty forthwith unless he is wanted in some other case.

His property both movable and immovable, shall be restored to him forthwith.

S.A. Writ petition accepted.

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