J.K. Mehra, J.
(1) The petitioner has filed this petition under Article 226 of the Constitution of India seeking an order of this Court for issuance of appropriate writ in the nature of certiorari or any other writ or mandamus, order or direction quashing the order of confirming authority passed as a revision order on 14.10.1986, the judgment and order of the General Court Martial (GCM) in pursuance of the directions given, the aforesaid order of the confirming authority.
(2) The petitioner is stated to have been commissioned in the army Corps of Signals' on 24.12.1970 with two years ante-date seniority fixed as on 24.12.1970. In 1983, the petitioner was posted to 85 Infantory Brigade Signal Company, which was a sub-unit of 11th Infantory Division Signal Regiment. The petitioner's unit was participating in exercises between December, 1983 and February, 1984. The petitioner having the command consisting of four Junior Commissioned Officers (JCOs), i.e., Subedars and Senior Subedars etc. and 110 of other ranks in his Company when it was posted at Gandhi Nagar, Gujarat. For the administrative purposes, the Company was divided in to six sections, i.e., (1) Mechanical Transport Section (2) Radio Section (3) Cipher, Section (4) Ammunition and Weaponry Section (5) Clothing and Rationing Section, and (6) Administration Section. These various sections were being controlled by the petitioner with the help of the JCOs. For maintaining proper control against pilpherage etc., the petitioner was maintaining a regular system of checks and counterchecks on the store. In the event of shortage of fuel and need for the same, the Company had to borrow fuel from another sister Company or Regiment and the same was duly recorded. The receipt voucher for the same was prepared by a Non Commissioned Officer (NCO) in charge Havaldar Shiv Shankar and was counter- signed by Subedar Ram Raj as well as by Lending Officer, as was the case on 28.2.1984 when 800 litres of diesel was borrowed from 14 Bihar Battalion. It is alleged that till September, 1984, there was no surplus store reported. On September 17, 1984, the said Havaldar Shiv Shankar Along with one Nayak B. Gadge, a driver of the vehicle were apprehended by military police for disposing of 8 barrels (1,600 litres) of diesel and 2 barrels (400 litres) of petrol in the civil. On being apprehended, Havaldar Shiv Shankar made a voluntary confession on 18.9.1984 wherein he had owned the entire blame regarding sale of the said fuel items. The said confessional statement was recorded before Captain V.S. Narayanan of 11th Infantory Division Signal Regiment at Ahmedabad in the presence of an independent witness, namely Captain K.K.Bains of the same unit. In accordance with law, a Staff Court of Inquiry was instituted on 22.9.1984 and based on the evidence thereof, the disciplinary proceedings were initiated against Havaldar Shiv Shankar and Nayak B. Gadge as also the petitioner, who being the Officer Commanding was also involved in the said disciplinary proceedings. Staff Court of Inquiry ordered by the Brigade Commander of Headquarters in 85 Infantory Brigade was to investigate and ascertain the circumstances under which 10 barrels of Fol (Fuel Oil Lubricant) was being disposed of by Havaldar Shiv Shankar and Nayak B. Gadge. It appears that the said Staff Court of Inquiry apart from the said Shiv Shankar and B. Gadge, also put the blame on a signal-man Joginder Pal Singh and the petitioner for the incident. As such, it was decided to proceed against all the four. The action against Joginder Pal Singh was disposed of summarily By Commanding Officer of the said 11th Infantory Division- Signal Regiment by awarding him 28 days of rigorous imprisonment in military custody. Peculiarly enough instead of conducting one trial for all the accused persons, the trial of two persons, namely Shiv Shankar and B. Gadge was separated and was conducted by Commanding Officer, 18th Madras Regiment and concluded by imposing comparatively lenient punishment while in the case of the petitioner, General Court Martial was ordered by the Co, 11th Infantory Division Signal Regiment. The said Gcm was ordered for an offence under Armies Act under Section 52(a) which is akin to Section 378 of Indian Penal Code for theft. In all 20 witnesses were examined by the prosecution and 5 witnesses were examined by the defense. The defense wanted Captain Narayanan's statement also to be recorded, but by that time Narayanan had retired and a questionnaire was prepared to examine him, which was sent, but there is no record available to show as to what happened to that questionaire? Whether those interrogatories were sent or if sent were answered by Capt Narayanan or whether those interrogatories were actually tendered to him for reply or not is not very clear .from the record, but the correspondence shows that the said interrogatories were forwarded to the Headquarters. The petitioner was found guilty of the offence alleged and was awarded the punishment of (1) loss of seniority towards promotion for two years, (2) severe reprimand, and (3) substantive rank of Major to be reckoned w.e.f. 24.12.1985 instead of 24.12.1983.
(3) This finding and the recommendation for punishment was placed before the confirming authority for confirmation of punishment.
(4) It is alleged on behalf of the petitioner that the conviction of the petitioner was based on the uncorroborated statement of only one witness, i.e., Havaldar Shiv Shankar, who was the person, but in fact, was caught actually selling the oil in civil and who had confessed this fact to Captain Narayanan in the presence of Captain K.K. Bains. The confirming authority who held the rank of Major General and was General Officer Commanding of the Infantory Division, after perusal of the proceedings of the General Court Martial, agreed with the verdict of holding the petitioner guilty, but did not agree with its recommendations for punishment and felt that the punishment was too light and for that reason, had remanded the matter back to General Court Martial on the question of sentence only. While doing so, the confirming authority embarked upon close scrutiny and appraisal of the evidence recorded and got influenced by the testimony/confession of Havaldar Shiv Shankar, the co-accused who was actually apprehended selling the oil though he was tried separately earlier on. On the remand, the General Court Martial, again after fresh hearing on the point of sentence, recommended a severer punishment of dismissal from service. Thereafter, the petitioner moved a pre-confirmation petition to Chief of Army Staff on 22.5.1984, which was rejected and the promulgation to place sentence of 5.4.1987 dismissing the petitioner from army service. The petitioner thereafter moved the Central Government against the confirmation of sentence to the Central Government without any success and finally he moved the present Writ Petition. The main grounds of attack of the petitioner are as under:-
(1)The charge was vague and was not proved at the General Court Martial as the ingredients of theft had not been proved beyond reasonable doubt;
(2)The conviction was based on the sole uncorroborated statement of only one witness, who was a co-accused and had in fact happened to be the person, who was actually caught selling the oil, though he was tried separately;
(3)That the petitioner was not accorded a fair trial and there was breach of principles of natural justice in as much as having allowed the request to examine Captain Narayanan on interrogatories, the same were not brought on record nor was the petitioner granted any opportunity to examine the said witness. The findings of Gcm are contrary to law in as much as no reasons for arriving at the findings of guilty have been recorded even though there were clear contradictions in:
(A)identification of the drums of barrels, (b) statements of various witnesses and attempt on the part of the witnesses to effect improvements in their earlier statements from time to time resulting in contradictions in their own earlier statements and those recorded during the proceedings before Gcm,
(C)Judge Advocate General while explaining the law in his summing up had gone wrong in explaining the weight to be attached to the statement of a co-accused and the contradictions has misdirected himself and the proceedings, which led to perverse findings against the petitioner,
(D)Although Shiv Shankar, B.Gadge and the petitioner were originally ordered to be jointly tried, subsequent separation of trial of Shiv Shankar and B. Gadge from the trial of the petitioner was malafide, motivated and prejudicial to the petitioner in as much as the petitioner had no opportunity to cross- examine them in those proceedings. They were just let off with light punishment and thereafter, they were produced for giving evidence against the petitioner,
(E)While Gadget did not give any statement involving the petitioner, Shiv Shankar did so. It is contended that Shiv Shankar's statement remained absolutely uncorroborated and the Judge Advocate General was wrong in explaining to the Gcm that his testimony could be relied upon without pointing out the fact that his testimony if uncorroborated could not be relied upon.
(F)The Judge Advocate General occupies an important and impartial position and is required to maintain his impartiality and sum up the evidence and law before the Gcm and give his impartial opinion on the legal position which the Judge Adjutant failed to do and it misled the Gcm on various points, such as (i) while summing up, he stated that conviction based on uncorroborated statement/testimony of accomplice is not illegal, which is contrary to all canone of law, equity and justice, and (ii) not drawing the attention of the Gcm to the vital and material points of evidence which do not find any mention at the first stage, i.e., summary of evidence etc.
(5) Counsel for the petitioner next contended that the order of revision was not passed by a person competent to do so, i.e., Chief of Army Staff and that the Major General, Goc of the Division had not been empowered to do so. This argument need not detain us as Mr. Joseph has brought to my notice a Notification dated 14.9.1965 by the Gog of the Division stating that Major General had been duly empowered. The said circular reads as under:-
'IN pursuance of the provisions of the Army Act, 1950 (XLVI of 1950), the Central Government is hereby pleased to empower you, or the officer on whom your command may devolve during your absence, not under the rank of Field Officer, to receive the proceedings of General Courts Martial held for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject to Military Law, and confirm the findings and sentences thereof, and to exercise, as respects these Courts and the persons tried by them, the powers created by the said Act in the confirming officer, in such manner as may be best for the good of the Regular Army.
PROVIDED always that if by the sentence of any General Court-Martial a person subject to Military Law has been sentenced to suffer death, you shall in such case, and also in the case of any other General Court-Martial in which you shall think fit so to do, withhold confirmation and transmit the proceedings to Superior Authority.
AND for so doing, this shall be, as well to you as to all others whom it may concern, a sufficient warrant.'
(6) Paras 471 and 472 as also the provisions of Army Act do make a provision for such delegation of authority and this delegation having taken place, the challenge to such authority is without merit and is rejected. Further, the aforesaid authorisation is in accordance with Section 60 of Indian Army Act and the Rules framed thereunder, particularly Rules 68 and 70.
(7) The next contention of counsel for the petitioner is that the order of remand by the confirming authority is bad in law and also reflected bias of the confirming authority who had gone into the question of discussing and appraising the evidence and while passing the order, had not only carried out minute scrutiny of only one .witness, who happened to be a co-accused and in fact, was the only person, who was caught red handed. He discussed testimony of this co- accused in isolation and in detail without noticing the fact of his statement being uncorroborated and had indulged in discussion in drawing inferences which could be drawn only if their was corroboration available of such statement of the co-accused and particularly 'when there were contradictions in his statement before the Gcm and his statements recorded earlier. The said authority ignored the rest of the evidence and the contradictions and the principle of law that uncorroborated testimony of co-accused should not be accepted as good evidence. It committed grave and serious errors of law, as is apparent on the face of the record. To appreciate this, it would be necessary to set out certain extracts from the revision order passed by the confirming authority:-
'1.The General Court Martial which assembled on 03 Dec, 85 and subsequent days for the trial of Ic 27593F Major (substantive) Harpal Singh of 11 In Div Sig Reg att 8 Maratha L1, will now assemble in open court at Gandhinagar on fifteen day of October 1986 at 1000 h for the purposes of reconsidering the sentence awarded by the Court.
2.While in no way intending to interfere with the discretion vested in the Court regarding the quantum of punishment to be awarded, as confirming officer, find that the sentence awarded to the accused is very lenient and grossly inadequate. I am of the opinion that the court should thereforee reconsider its sentence in the light of the following observations:-
(A)The accused at the time of committing offence had sufficient service to understand that he was committing theft of Govt. property which was placed under him for proper utilisation. If the Pol became surprise during exercise it was the bounden duty of the accused to have taken such Fol on the ledger charge.
(B)The accused not only committed theft of the Fol, but when caught, he tried to shift the entire blame on the Mt Co Nk Sheo Shankar (Public Witness 5). It is further in the evidence of Public Witness 5 that the accused offered to pay him Rs.3000.00 for accepting the entire blame and give a false statement. Such conduct on the part of a field officer speaks very low of him. This indicates lack of officer like quality in the accused officer. In view of this, the reprehensible.
(C)Whenever 'an accused person is found guilty of offences, involving moral turpitude, the sentence awarded should be Extrenuatingand commensurate with the gravity of the offence.
3. Extenuating circumstances, if any, must be resolved in favor of the accused but if there are none, the human considerations should not sway the court in passing a sentence so lenient as to make the offence seen venial.'
(8) A bare reading of the above-noted portion from the order recorded by the confirming authority leads one to the inescapable inference that he went completely beyond his jurisdiction, which was confined only to giving directions for either additional evidence or reconsideration of the sentence. In this case, he however, took upon himself to discuss in great detail the nature of the evidence of the co-accused without noticing that this part of the statement was not only uncorroborated, but also in contradiction to his own statement recorded earlier. In the light of this stating in unequivocal terms that the charge relating to theft and alleged payment of Rs.3,000.00 stood fully established on the basis of the evidence recorded, was beyond his competence. Such order of remand leaves one in no doubt whatsoever that the action of the confirming authority by recording the aforesaid findings and direction was in excess of his jurisdiction and authority. By such recorder of his views, the remand order clearly indicated to the GCM. of the order that the confirming authority expected them to pass. Confirming authority failed to appreciate that if the statement of co-accused PW- 5 Shiv Shankar is excluded there is not evidence which could implicate' the petitioner. In the present case, the confirming authority had clearly acceded his jurisdiction. Treating uncorroborated evidence of a co-accused as good evidence is contrary to the law laid down by the Hon'ble Supreme Court in the case of Hari Charan Kurmi Vs . State of Bihar, : 1964CriLJ344 wherein the Hon'ble Court laid down as under:-
'THE confession of a co-accused has to be recorded as amounting to evidences in a general way because whatever is considered by the Court is evidence. Circumstances which are considered by the Court as well as the probabilities do amount to evidence in that generic since. Thus though confession may be recorded as evidence in that generic sense because of the provisions of Section 30 (of Evidence Act), the fact remains that it is not evidence as defined by Section 3 of the Act. The result, thereforee, is that dealing with the case against the accused person, the Court cannot start with a confession of a co- accused person; it must begin with other evidence, adduced by the prosecution and after it has formed its opinion with regard to equity and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.' 'Thus the confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of his conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principles for moral conviction or grave suspicion....'
(9) Mr. Luthra has also cited the case of Colonel Lieutenant Prithipal Bedi Vs . Captain Dharam Pal Kukreti etc., : 1983CriLJ647 . Para-45 of the said judgment is reproduced below:-
'RELUCTANCE of (he apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, : 1978CriLJ1741 that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict on abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a chershed and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the court- martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court-martial is almost analogous to the procedure of trial in the ordinary Criminal Courts, we must recall what Justice William O'Douglas observed 'that civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court-martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour 'Tough Test for Military Justice', Time Magazine, pp. 42 and 43, In Reid v. Covert, (1957) 1 Law ed 1148, Justice Black observed at p.1174 as under:
'COURT-MARTIAL are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of 'command influence'. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings - in short, for their future progress in the service. Conceding to military person- nel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and can not have the independence of jurors drawn from the general public or of civilian judges.'
ABSENCE of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counter part civilian convict can prefer appeal after appeal to hierarchy of Courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for a poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and reattribute justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of nonmilitary personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Creaser's wife - confirmation proceeding under S. 153 - has been condemned as injudicious and merely a lip sympathy to form.'
(10) Mr. Joseph in response to all these lengthy arguments, has basically relied upon the ratio of the case of Captain Harish Uppal v. Union of India, reported as : [1973]2SCR1025 . That was a case where the actual offence under Section 392 of Indian Penal Code had been proved on evidence and in the opinion of the confirming authority, the sentence proposed was too lenient. That was not a case where the confirming authority had indulged in appraising evidence and accepting the uncorroborated testimony of a co-accused. For that reason, this authority cannot be accepted as one authorising the confirming authority to enter upon a detailed scrutiny of a part of the evidence which happens to be uncorroborated testimony of co-accused and form its opinion in that light and ordering reconsideration of the sentence terming the sentence, already imposed, as very lenient. In that case, there were no contradictions in evidence. The offence was conclusively proved. In the present case, apart from the co-accused Shiv Shankar Public Witness -5, no one else even Public Witness 6 Rani Raj Singh also a co-accused has supported the testimony of the co-accused Public Witness 5, who could not be termed as independent witness. The opening sentence of para-2 of the revision order, quoted hereinabove, has been stated to be a pointer to the Gcm that they arc not to be in any manner influenced while reconsidering the case, is not acceptable because in the same breath, the further reasonings why their verdict is found to be too lenient are given and this is a mere lip service to the salutary principles. While on the one hand, the confirming authority is asking the Gcm to remain uninfluenced, on the other hand, it is asking them to bear in mind the facts, which have already influenced the confirming authority and which unfortunately point only to the testimony of one of the co-accused, which is not corroborated by any other prosecution witness or even other co-accepted Mr. Joseph tried to refer to the testimony of Public Witness 6, which I have already referred to and a reference to that statement would show that the said witness in cross- examination has clearly denied any suggestion of the involvement of the petitioner let alone the payment of Rs.3,000-.
(11) The second case cited on behalf of the respondent was that of Union of India Vs.J.S.Barar, : AIR1993SC773 . in that case, all witnesses had supported the prosecution case as to the presence of the accused at the tune and place of offence and his active, participation in the commission of crime as well as attempts made by him to suppress evidence. In-the present case, there is no evidence of this nature. Even Public Witness -6 who is one of the accomplices/co-accused had testified about the presence of the petitioner at the petrol pump or sale of the petrol having been affected at the behest or instance of the petitioner. Only Public Witness 5, Shiv Shankar, who is also alleged to be an accomplice and is co-accused, has deposed against the petitioner. In fact, if the statement of this co-accused is excluded, there is no evidence on the basis whereof the change could be sustained. His testimony is uncorroborated. In the light of these facts, this authority is also not applicable to the present case, and it does not help the . respondents. Not only the conclusions reached by the Confirming authority were contrary to law but even the conduct of court martial in denying the petitioner the opportunity to place on record the testimony of Capt. Narayanan after having issued the interrogatories left a lot to be desired and in fact it was contrary to Rule 22 which had not been complied with. The said rule as pointed out by counsel provided as under:
'22.Hearing of charge.-(l) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have fully liberty to cross-examine any witness against him and to call any witness and made any statement in his defense........'
(12) As already observed above Capt. Narayanan was a very material witness and the petitioner had asked for his production as a witness. Even interrogatories were issued for his examination but thereafter there 'is nothing on record to show as to whether replies were received and why the testimony was not taken on record. The above rule incorporates a very important rule of natural justice and has already been held to be mandatory in the case of Nb/Sub Avtar Singh v. Union of India & Ors. reported as 1989 (5) Slr 674. I am in respectful agreement with the principle laid down in that ruling that the procedure laid down in rule 22 is mandatory. In fact it had been so laid down by the Hon'ble Supreme Court in the case of Lt. Col. Prithpal Singh Bedi v. Union of India & Ors. reported as 1983 CAR (SC) 137. For this reason also I have no hesitation in holding that the enquiry stood vitiated. The things could be different if the said witness was not traceable or available to make statement at all but that is not the case here. The scope of Rule 22 was also considered in another case of this Court viz. Lance Dafedar Laxman v. Union of India & Ors. : 1992(24)DRJ125 where after a detailed discussion this Court had come to the conclusion that the provisions of the said rule 22 are mandatory. I think that not allowing the statement of Capt. Narayanan to come on record or getting him examined on interrogatories after the interrogatories were issued amounted to material irregularity and violation of the mandatory provisions of Rule 22 and had the effect of vitiating the trial. A reference in this connection be also made to the case of Sandeep Malik v. Union of India &Anr.; : 1995IIAD(Delhi)209 .
(13) Mr. Luthra next contended that transfer of the two co-accused who were to face court martial along with the petitioner, to another unit in separating their trial was also contrary to the letter and spirit of law. He said even in summary court martial such transfer to outside unit has already been held by this, court in the case of Ex.Hav. Mahipal Singh v. Union of India & Ors. : 55(1994)DLT176 , to be bad in law. I feel that the contention of Mr. Luthra that the object of separating the trial was mala fide inasmuch as the other co-accused were let off with very light punishment in exchange for their agreeing to depose against the petitioner. In that even if the said contention is not accepted fully I feel that such transfer to and trial by another unit of the co-accused was improper and the possible object of using the statement of that co-accused against the petitioner in Gcm by contending that the said coaccused was not a co-accused in the same trial, count not be ruled out.
(14) Mr. Joseph next contended that this Court should not interfere with the findings and sentence in the present case under Article 226 as the power to interfere in such cases is very limited and relied upon the case of Ex. Maj. R.S. Budhwar v. Union of India : 58(1995)DLT339 . I am unable to agree with Mr. Joseph because here is a case of clear breach of principles of natural justice and mandatory provisions of rule 22 as also total misdirection and misapplication of the provisions of law by the reviewing authority, who went beyond his jurisdiction as already noticed above. In that case .also, the Division Bench, while dealing with the ratio of Supreme Court judgment in the case of Kashmira Singh had also referred to Rameshwar v. State of Rajasthan, : 1952CriLJ547 and held that, 'it follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed.' Another case which has been referred to was that of Bhugony Sahu v. The King, reported as 1976 IBL 147 PC 157 is the relevant observation that 'the tendency to include the innocent with the guilty is peculiarly prevalent in India, as Judges have entered on innumerable occasions, and it is very difficult for the Court to guard against the danger... The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused.' I have already noticed above that if the testimony of the accomplice/co-accused, Public Witness 5 Shiv Shankar is excluded, there is no evidence on record against the petitioner. It is not only a case of non compliance with the mandatory conditions of Rule 22 alone, but in the light of the above discussion, it appears that there is violation of fundamental rights of the petitioner under Article 21 of the Constitution. 1 am not going into the detailed examination of the evidence because in this petition under Article 226, this Court cannot constitute itself into a Court of appeal.
(15) In the present case without going into the detailed analysis of the evidence which is not at all called for on the face of the discussion hereinabove, it is clear that neither the General Court Martial proceedings nor the order of the confirming authority remanding the matter back for reconsideration of sentence can be sustained. The present writ deserves to be allowed.
(16) The result of the above discussions is that this writ petition is allowed and the Rule is made absolute. The proceedings and sentence of general court martial are set aside. The petitioner will be entitled to all other consequential relief. In the circumstances of the case, there will be no order as to costs.