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Before Muhammad Zahoorul Haq and Abdul Razak A. Thahim, JJ
SHAH MUHAMMAD--Petitioner
versus
FEDERATION OF PAKISTAN
and 2 others--Respondents
Constitutional Petition No. D-1390 of 1986, decided on 21st May, 1987.
(a) Constitution of Pakistan (1973)--
---Arts. 199 and 270-A--Penal Code (XLV of 1860), S. 302 West Pakistan Arms Ordinance (XX of 1965), S. 13-D--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)- Accused tried and convicted under Martial Law Regulations and sentenced to death by Special Military Court and his sentence of death confirmed by Chief Martial Law Administrator--- Action of Special Military Court protected by Art. 270-A of the Constitution--Order of conviction, held, unexceptionable--Contentions raised on behalf of accused that Martial Law Regulations were not supra Constitution and Article 270-A of Constitution was passed by incompetent legislature and was invalid and that National Assembly was elected under Provisional Constitutional Order, 1981 and not under 1973 Constitution, therefore, all sentences passed by Martial Law Authorities were illegal and without jurisdiction--Contention repelled--Held, power of legislature was only to be exercised by elected representatives and it was within their jurisdiction to amend Constitution--Since Constitution had been amended by validly elected National Assembly, a forum competent to do so, therefore it could not be said that Assembly was not competent to amend the Constitution particularly when fairness of election had not been challenged.
Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan P L D 1977 S C 657 ref.
Muhammad Bachal Memon v. Government of Sind through Secretary Department of Food and 2 others P L D 1987 Kar. 296 rel.
(b) Constitution of Pakistan (1973)--
---Art. 199--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.3--Sind Children Act (XII of 1955), S.68- Provisions of Sind Children Act do not override Martial Law Regulations and Orders--Convicts tried and sentenced to death under Martial Law Regulations and Orders, held, could not claim any privilege on account of their age so far as sentence of death was concerned- Offender could be punished with a sentence laid down in Martial Law Regulations and Orders whether he was a child or adult--Provisions of Sind Children Act, 1955, being contrary to Martial Law Regulations, would be deemed to be inoperative or having been superseded by provisions of Martial Law Regulations and Orders--Death sentence awarded by Special Military Court to convict who was below eighteen years of age could not be challenged on account of his being of tender age.
(c) Constitution of Pakistan (1973)--
---Art. 199--Courts are creature of the Constitution and are not law-making bodies.
A. Mujeeb Pirzada for Petitioner.
Rashid A. Akhund, Waphuddin Ahmad, A.-G. for Respondents. Date of hearing: 11th May, 1987.
ABDUL R AZAK A. THAHIM, J.-- By this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the death sentence awarded to convict Azim s/o Akan allas Mir Khan on 25-2-1986 by Special Military Court No. 36, Khairpur Mir's has been challenged.
The facts in brief are that on 24-10-1984 one Muhammad Afzal lodged report at police station Kotdiji "Crime No.113" in which he alleged that at 2.00 a.m. 8-10 persons armed with hatchet, rifle and guns attacked Pasha Petrol Pump and killed one Rashid Khan and robbed Rs.37,823, two watches, gun and revolver. The incident was witnessed by Bachal, Mansha, Shah Nawaz and Alam Sher. The challan of the case was submitted before Special Military Court No.36.
The condemned prisoner Azim along with Ghulam Rasool, Roshan Rind, Siddique Rind, Azam Rind, Khadim Hussain Rind, Khudan allas Khuda Bux Kalhoro, Latif Dino, Gul Hassan and Ghulam Ali were tried by Special Military Court No.36 and all were convicted under section 302 PPC, 13-D Arms Ordinance, 17 (4) Offence against Property (Enforcement of Hudood) Ord. 1979 and Martial Law Regulations. They were sentenced to death. The conviction of all other accused except Azim was commuted to imprisonment for life by the President of Pakistan on mercy petition, but the death sentence of Azim has not been commuted.
Mr. Abdul Mujeeb Pirzada has challenged the conviction death sentence to Azim on the grounds that death sentence has been awarded to convict Azim by Special Military Court without lawful authority, without jurisdiction, mala fide and illegal being against the spirit and law laid down by the Constitution. It is contended by the learned counsel that:-----
(i) That the trial of the accused was held contrary to the provision of Pakistan Military (Army) Act, 1932 and Rules 1954 (Pakistan Army Rules).
(ii) that with 8th amendment in the Constitution of Pakistan, the powers of judicial review also restored to the Superior Courts.
(iii) the composition of Special Military Court is against Martial Law Orders, instructions and Army Act as Magistrate of the first class was not to exercising powers under section 30 of the Cr.P.C. and that Military Officer not below the rank of Major could act the member of the Special Military Court.
(iv) that condemned prisoner Azim was 12 years of age at the commission of the alleged offence therefore his trial by Special Military Court and death sentence is not warranted by the law as Sind Children Act 1955 is applicable to the cases of such accused.
He has relied on the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan reported in PLD 1977 S.C. 657.
Mr. Nujeeb Pirzada has also argued that Martial Law Orders and Regulations are not supra Constitution and Article 270-A was passed by incompetent legislature and it is invalid. It is argued that National Assembly was elected under P.C.0 1981 and not under 1973 Constitution. Therefore all sentences passed are illegal and without jurisdiction. We do not agree with this argument as the power of legislature is only to be exercised by the elected representatives and it is within their jurisdiction to amend the Constitution, since the Constitution has been amended by a validly elected National Assembly, a forum competent to do so therefore it cannot be said that assembly was not competent to amend the constitution particularly when the fairness of election has not been challenged. It is a settled principle of law that courts are creature of the Constitution and are not law making bodies. In view of Article 270-A of the Constitution all M.L. Regulations & Orders made, Laws enforced, proceedings taken acts done by an authority or any person between the 5th July 1977 and, the date on which this Article comes into force, deemed to be and always to have been validly made, taken or done notwithstanding anything contained in the Constitution and notwithstanding any judgment of any Court shall not be called in to question, in any Court on any ground whatsoever. The Chief Martial Law Administrator and the Martial Law Administrators of the various Zones issued Martial Law Regulations and Martial Law Orders from time to time which have been protected by Article 270-A of the Constitution. Number of C petitions were filed challenging the convictions awarded by the Martial Law Authorities and Full Bench In-case of Mohammad Bachal Memon v. Government of Sind, through Secretary Department of Food and two others reported in PLD 1987 Kar. 296. held that scope to challenge the conviction of the Martial Law Courts or acts of the Martial Law Authorities is restricted to act or orders which were without jurisdiction or the proceedings which were coram non judice. This full Bench Judgment, in which one of us was a member, is binding on us. Therefore in view of the above legal position it cannot be said that the conviction and sentence passed by the Military Courts is without, jurisdiction as the Special Military Court had the jurisdiction to try petitioner. Illegalities, if any committed in the course of trial are cured by the provisions of Art.270-A (2) of the Constitution.
Reverting to the next argument of Mr. Pirzada that Azim cannot be sentenced to death as he was minor and in view of Section 68 of the Sind Children Act 1955 he could not be sentenced to death or transportation or imprisonment. The convict and his co-accused was tried for the violation of Martial Law Orders and Regulations for which sentence of death has been provided.
Under Martial Law Order 3 (2) Summary Military Courts and Special Military Court had the power to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under any law for the time being enforce. In the present case the accused were tried for the murder, dacoity and Hudood Ordinance. The punishment for murder is death or imprisonment for life. It may be pointed out that under Martial Law Regulation No.7 issued by the Chief Martial Law Administrator on 5th July, 1977 any person guilty of dacoity could be awarded death sentence or amputation of hand. Ordinarily the death sentence is not provided for the dacoity therefore there is special provision for the sentence of some offences in the Martial Law Regulations issued from time to time. As such the Special Military Courts are competent to pass the sentence.
The death sentence has been confirmed by the Chief Martial Law Administrator and mercy petition has also been dismissed therefore sentence awarded to Azim has become final. Under Martial Law Order 4 of Chief -- - - Law Administrator, Special Military Court and Summary Military Court were constituted and were empowered to try and punish any person for offence under any Martial Law Regulation. Martial Law Order a or under any laws as mentioned in that order notwithstanding that any offence is triable exclusively by Special Court or Tribunal or Special Judge or any other authority or body. In clause 4 of Martial Law Orders No.4 a Martial Law Administrator of the Zone could constitute number of Special Military Courts in his Zone as he deems fit for trial of offence under Martial Law Regulations or contravention of Martial Law Orders under any other law for the time being enforce and special Military Court was empowered to pass any sentence authorised by law or by these regulations. In Chief Martial Law Administrator Order No.5 (e) the only exception provided is that whipping shall not be awarded on women of any age or men over 45 years or persons below the age of 18 years. With regard to the sentence of even death penalty no one has been made immuned in this Order. The Martial Law Administrator Zone 'C' was empowered to constitute Special Military Court who were empowered to award 14 death sentence, amputation and whipping but no whipping is permitted to women, men over 45 years or below the age of 18 years under instruction No.6. Therefore provision of Sind Children Act do not over-ride the Martial Law Regulations or Orders. I am referring the Hudood Ordinance where no exception is provided in punishment to the youthful offenders. On this I refer to a case of Niaz Muhammad v. the State and another reported in 1985 P.Cr. L.J 1030. The plea of petitioner is that case was that provision of Sind Children Act being repugnant of the Ordinance shall be deemed to be inoperative to the extent of repugnancy for the reason that said Ordinance override d all other Laws. Section 3 of the said Ordinance reads as under:----
"The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force"
From the above provision it is clear that there is no provision in any other law which is repugnant to the provision of the said Ordinance within the provision of the latter Ordinance shall prevail and provision of other law shall be in effective or shall be deemed to have been superseded to the extent of repugnancy.
The convict was tried under the Martial Law Regulations and Orders of 1977 and the punishment is to be awarded to an offender in these provisions irrespective of his age therefore Martial Law Orders Regulations do not make any discrimination of age of the offender so far as sentence is concerned. The offender shall be punished with F a sentence laid down in the above provision whether he is child or adult. In our view the provision of Sind Children Act being contrary to the Martial Law Regulations as referred to above shall be deemed to be inoperative or having been superceded by the provisions of the Martial Law Orders and Regulations. In the above reported case it has been held that provisions of Sind Children Act 1955 do not apply in the cases of prohibition of Hadd Order where Hadd is punishable with imprisonment for whipping or stoning to death as the case may be. Therefore we are of the view that provisions of Sind C Children Act 1955 do not attract to the trial under Martial Law Regulations conducted by Special Military Court therefore this argument is repelled.
Lastly the composition of Military Court has been challenged on the ground that Magistrate who was the member of the Special Military Court had no power under Section 30 Cr.P.C. Mr. Pirzada is not able to substantiate this allegation and according to instruction No.6 relied upon by the learned counsel the requirement is that the President should be of the rank of Lt. Colonel while member from Armed Forces should e.g. Major or Captain and Magistrate of the First Class to constitute a Special Military Court. There is no requirement of Sec. 30 of Cr.P.C. powers for a Magistrate. From the record it is clear that Lt. Col. Muhammad Ishaque was the President of Special Military Court No.36 while other members were also qualified to be the member of the Special Military Court. Therefore this point has not been substantiated.
For the reasons stated above this constitutional petition is dismissed in limine.
M . Y . H . / S-54 / K Petition dismissed
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