1992 PLP 980 (MLD)

During the hearing of the application made by Muhammad 1qbal complainant against Muhammad Malik and Muhammad Abbas, respondents/accused in the murder case of Police Station (Saddar) Jala1pur Jattan, District Gujrat, for the cancellation of their bail granted to them by the Sessions Court, Gujrat, a question had cropped up about the justification of Army Authorities to refuse the custody of Muhammad Nawaz co‑accused, who was their employee, to the police for investigation and arrest and his ultimate trial alongwith his co‑accused in the Court of Session. Besides the counsel representing the parties, the learned Deputy Attorney‑General was also asked to assist this Court.

2. After listening to the arguments of the learned counsel representing the parties, and the learned Deputy Attorney‑General, the legal position, which has ultimately emerged, seems to be that, as contemplated by section 59 of the Pakistan Army Act, 1952, an army personnel, if he commits murder, or culpable homicide not amounting to murder, or zina or zina‑bil‑jabr with an person not subject to the Army Act, then he is to be tried by an ordinance Criminal Court i.e. a Court of Session as it is a civil offence, unless at the time of commission of such offence he is on active service or is outside Pakistan or he is at a frontier post specified by the Federal Government in the notification Section 94 of the said Act envisages a reference to be made to the prescribed officer for taking a decision; whether he is to be tried by a Criminal Court or by a Court Martial if both the Courts have jurisdiction to try such offence. According to the learned Deputy Attorney‑General, the whole of Pakistan Army ever since 1975, by virtue of a notification issued under section 7 of Pakistan Army Act, has been and continues to be on active service and as such Muhammad Nawaz co‑accused in this case is ordinarily to be tried by the Army authorities through a Court Martial for the offence of murder he has allegedly committed alongwith his co‑accused but at the same time the prescribed officer has the discretion to hand over to the police for investigation and ultimate trial by the Court of Session alongwith his co‑accused because both the Courts have jurisdiction to try him.

3. In a situation like this, when the case is under investigation, the Superintendent of the Police concerned through the District Magistrate has to make a reference to the prescribed Army Officer to ascertain his decision and this course should be adopted in future in all cases of the said category. However, in this case the Deputy Attorney‑General, Lahore, has voluntarily undertaken to make a reference to the appropriate Army Authorities for decision: whether Muhammad Nawaz co‑accused who, after the alleged commission of the murder of Muhammad Afzal, is said to have run away to his, Army Unit, is to be tried by them through a Court Martial or he is to be handed over to the police for investigation and trial in ‑an ordinary criminal Court i.e. the Court of Session at Gujrat?

4. The matter is disposed of accordingly but the learned Deputy Attorney‑General, Lahore, shall apprise this Court of the reference made by him and the decision taken by the Army Authorities in this case. M.B.A./M‑215/L Order accordingly.