1997 PCRLJ 514 LAHORE-HIGH-COURT-LAHORE

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SH. MUHAMMAD YOUSAF VS FEDERAL GOVERNMENT AND 5 OTHERS PLD 1989 SC 26, Pakistan Penal Code 1860--420 , Pakistan Penal Code 1860--468 , Pakistan Penal Code 1860--471 , ----S. 420/468/471---Trial by Military Courts and Jurisdiction of Supreme Court and High Court [C.M.L.O. 77]---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Quashing of proceedings taken by Summary Military Court against the petitioner---Validity---Trial of accused petitioner by the Summary Military Court on the F.I.R. registered against him and the orders passed by it sentencing him and for delivery of possession of his property to the respondent suffered from positive mala fides as the proceedings had been initiated on the directive of the Chief Martial Law Administrator issued on the application of the respondent who was Naib-Qasid in the Cabinet Division and had failed in judicial proceedings as regards transfer of property as well as in eviction petition up to Supreme Court---Subsequent proceedings before Summary Military Court which amounted to gross misuse of the powers by the Martial Law Authorities and Summary Military Court for personal ends so as to grab the property of the petitioner for the respondent, were got initiated with mala fide intention motivated by the desire to get the property through underhand means which could not be permitted---Record of the proceedings of the. Summary Military Court having not been produced before High Court, it could be justifiably inferred that the sentence of petitioner was not based on any evidence---Even if the alleged fraud was committed in respect of payment of the price of the property, the same did not have any nexus with the earlier order of its allotment and transfer in favour of the petitioner which was upheld by Supreme Court long before the determination of its price---Proceedings taken by the Summary Military Court for the trial of the petitioner on the charges framed against him, its order passing sentence upon him and for the delivery of possession of the property to the respondent, erroneously assuming that he was the lawful owner, thereof, were consequently declared to be without lawful authority and of no legal consequence and were quashed---Constitutional petition was accepted accordingly directing the respondents to pay special costs to the petitioners.