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PLD 1993 LAHORE 218

Per Irshad Hasan Khan, J.

(a) Constitution of Pakistan (1973), Article 199
r/w Martial Law Orders (C.M.L.A.’s) Nos. 4 & 5—Martial Law Regulation (C.M.L.A’s) No. 3—Penal Code (XLV of 1860), Ss. 307, 326 354, 452, 148 & 149—West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16—

There is no cavil with the proposition that MLR No. 3 does not provide for imposition of fine. Learned counsel for the petitioners has, however, over-looked the fact that the petitioners were tried and convicted not only under MLR No. 3 but also under sections 148/149, 452, 354, 307 and 326 of the P.P.C. and section 16 of the Maintenance of Public Order Ordinance, 1960. Al the aforesaid sections of the Penal Code and the Maintenance of Public Order Ordinance do provide for imposition of fine and, therefore, no exception can be taken to this extent either. Reference may also be made to clause (c) to paragraph 7 of MLO No. 4 read with clause (f) (1) of MLO No. 5 which provides for the imposition of unlimited fine unless otherwise specified in a Martial Law Regulation and notwithstanding anything contained in any law for the time being in force, fine awarded by a Military Court shall be recovered as arrears of land revenue. As pointed out above, although imposition of fine is not contemplated by MLR No. 3 but the fine could have been validly imposed by the Summary Military Court under various provisions of the Penal Code and Maintenance of Public Order Ordinance stated above and, therefore, no exception can be taken to it. When faced with this Khawaja Habibullah, learned counsel for the petitioners submitted that even if it is assumed that imposition of fine was within the competence of the Summary Military Court, the impugned fines are wholly without jurisdiction, in that, conduct of trial by the Summary Military Court was governed by Instruction No. 8 issued by Martial Law Administrator, Zone ‘A’ on 17-7-1977. It was submitted that according to clause (c) to paragraph 5 of the Instruction the Summary Military Court is competent to impose sentence up to one year, whipping of 15 stripes and fine not exceeding Rs. 5,000. Here the punishments of imprisonment awarded to two out of the five petitioners were three years each and, therefore, their conviction was rendered coram non judice. According to him, under same provisions a Summary Military Court had no jurisdiction to impose fine exceeding Rs. 5,000 and, therefore, imposition of fine of Rs. 2,00,000 on each of the petitioner was also coram non judice. It is true that Martial Law Instruction No. 8, referred to above, does not empower the Summary Military Court to impose fine exceeding Rs. 5,000 but this plea is of no avail to the petitioners in that, Instruction No. 8 was issued on 17-7-1977 whereas vide CMLA Order No. 40 dated 26-2-1978, clause (c) to paragraph 7 of MLO No. 4 was substituted. The petitioners were admittedly tried by the Summary Military Court in 1984 and, therefore, the imposition of fine beyond Rs. 5,000 cannot be questioned in view of the aforesaid provision read with clause (f) of Martial Law Order No. 5(i). [p. 227, 228] B & C

(b) Constitution of Pakistan (1973), Article 199
r/w Martial Law Orders (C.M.L.A.’s) Nos. 4 & 5—Martial Law Regulation (C.M.L.A’s) No. 3—Penal Code (XLV of 1860), Ss. 307, 326 354, 452, 148 & 149—West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16—

The forfeiture of property by the Summary Military Court violated Articles 4, 23 and 24 of the Constitution which provided that no person shall be deprived of his property save in accordance with law and every citizen shall have the right ot acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restriction imposed by law in the public interest. Here the Summary Military Court which passed order for confiscation of the property of the petitioners had no jurisdiction to do so and therefore, the impugned confiscation of petitioners’ properties is coram non judice and cannot be sanctified under any discoverable principle. There is no force in the contention raised on behalf of the learned Deputy Attorney-General that with the sanctioning of mutation in favour of the Provincial Government, the property of the petitioners cannot be returned to them as that action is a past and closed transaction. As held above, the order relatable to the confiscation of the property of the petitioners was coram non judice and therefore, it is incapable of conferring any rights on the respondent-Government on the basis of mutation sanctioned in their favour. According to the report received from the Deputy Commissioner/District Collector, Multan, during the course of hearing of this case, it has been revealed that beyond the entry of the mutation in favour of the Provincial Government and collection of the share of produce by the Government through a Superdar and deposit of the same in the bank, no other action has been taken in making the corpus disappear or change hands. The position is that the property of the petitioners forms part of a joint Khata and it still retains that status.

There is no force in the submission of the learned Deputy Attorney-General that the forfeiture of property of the petitioners can be treated “as an act done or purported to have been made in good faith” within the meaning of clauses (2), (4) and (5) of Article 270-A of the Constitution. [p. 229] D

Clearly the confiscation of property of the petitioners was ex facie without lawful authority and in violation of fundamental rights. The property is still intact and has not been sold away by the Provincial Government, and therefore, is capable of being restored to the petitioners. [p. 231] F

In the case in hand, the forfeited property still remains intact and has not been sold away by the Provincial Government to any person. This Court is, therefore, bound to give effect to fundamental rights of the petitioners by restoring to them the forfeited property alongwith the benefit derived by the Provincial Government during the period the forfeited property was enjoyed by it. [p. 232] G

In view of the foregoing discussion, we hold that the impugned order in so far as it relates to forfeiture of the properties of the petitioners is without lawful authority and is coram non judice. [p. 232] H

(c) Constitution of Pakistan (1973), Article 270-A

Taking into account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely it appears that its object was merely to afford protection to the dispensation which came into existence as a result of Constitutional deviation; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law.” [p. 231] E

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