P L D 1957 Azad J (PLP)

ABDUL HAMID KHAN, J

‑This is a revision petition against the order of Sessions Judge, Bagh, dated 4th February 1956, whereby he referred the case against the respondents to the Government. Brief facts leading to this revision are asunder:‑ Nasibullah and Abdur Rahman, the non‑applicants, were convicted under sections 49 and 498, A. P. C. and sentenced each to two years' rigorous imprisonment under each section. The sentences were ordered to run consecutively. Many other persons besides the respondents were also named as accused in the first information report but out of them the non‑applicants Nasibullah, Abdur Rahman, Mst. Akbar Jan and Mst. Afsar Jan were arrested by the police. The rest of them Ramzan Mir, Nizam Din and Maqbool who are employed in the 2 A. K. Field Ambulance stationed at Bagh and Mst. Maja and Mst. Jantti who are the wives of two of these employees could not be arrested by the Police. These absentees were proceeded against under section 512, Criminal Procedure Code by the trial Court. The non -applicants were tried and found guilty and convicted under sections 497 and 498, A. P. C. and sentenced to two years' rigorous imprisonment each under each section. The sentences were ordered to run consecutively. On appeal, the case was referred by the Sessions Judge to the Government for orders. According to the Sessions Judge, Nasibullah could be tried both by the Court Martial and the Criminal Court and it was in the discretion of the prescribed military authority to decide before which Court the proceedings were to be instituted. It has been pointed out that many letters were written by the Commanding Officer of the Unit of the accused to the trial Magistrate showing that he objected to the trial of the accused by the Criminal Court and that he wanted the accused to be handed over to him so that he might be put on trial before the Military Court. The Magis trate did not comply with this request of the Commanding Officer. In the opinion of the Sessions Judge, it was wrong on the part of the Magistrate to have tried the accused and convicted him. He, however, abstained from passing any orders on the merits of the case for fear of the fact that if Nasibullah was handed over to the Military at this stage, he might successfully claim exemption from de novo trial under section 90 of the Pakistan Army Act and might go unpunished. The Government has come up in revision to this Court against this order of the Sessions Judge. The learned Government Advocate has pointed out that the Sessions Judge has not quoted the correct section in quoting section 70 of the Pakistan Army Act while referring the case to the Government. The case could only be referred to the Government under section 95 of the Pakistan Army Act or under section 70 of the Indian Army Act, and that too only by the Court in which the case was instituted. This is correct appreciation of the Law. Only the trial Magistrate could have referred the case to the Government under section 95 of the Pakistan Army Act or under 'section 70 of the Indian Army Act and that also when it had jurisdiction to try the accused. For clarification, section 95 of the Pakistan Army Act is reproduced below:-- Section 95:‑ (1) When a Criminal Court having jurisdiction is of the opinion that proceedings ought to be instituted before itself in respect of any civil offence, it may, by written notice, require the prescribed officer, at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to Law, or to postpone proceedings pending a reference to the Central Government. (2) In every such case, the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the Court before which the proceedings are to be instituted for the deter mination of the Central Government, whose order upon such reference shall be final. The Law enunciated in section 95 of the Pakistan Army Act is the same as enunciated in section 70 of the Indian Army Act. The learned Advocate on behalf of Nasibullah and Abdur Rahman agreed with the contention of the learned Govern ment Advocate. He, however, urged that this Court should give a finding on merits of the case and quash conviction which was illegal as the trial Magistrate had no jurisdiction to try the accused. To give a finding on the merits of the case would not be proper for several reasons, one being that the appeal is still pending before the Sessions Judge who has made a reference to the Government and is awaiting a reply to it. In the circumstances, I hold that a reference to the Government by the Sessions Judge is wrong in Law. He should have heard the parties and decided the case on merits. For his infor mation, it may be pointed out that the Indian Army Act was in force in Azad Kashmir which was replaced vide Council Order No. 43/56, dated the 6th February 1956 by the Pakistan Army Act. The offence in the present case is dated 5th/6th August 1955. It is to be seen whether the Indian Army Act applied to the case or the Pakistan Army Act. There is not much difference in the two Acts except that sections 41 and 42 of the Indian Army Act have been embodied in section 59 of the Pakistan Army Act with some variations. The question whether the military personnel involved in the case were on "active service" or not at the time of commis sion of the offence may also have to be gone into for the proper disposal of the case. For the aforesaid reasons, I accept the revision petition and send back the case to the Sessions Judge, Bagh to give his finding in appeal before him on merits. K.B.A. Petition accepted: Case remanded: