1980 P Cr (PLP)

Mureed Hussain accused‑respondent No. 5 is a person subject to Pakistan Army Act, 1952. A counter F. I. R. was lodged with Police Station, Dina by Matloob Hussain respondent No. 4 herein against six persons, including Muhammad Azam the present petitioner, under section 307!325/148/ 149, P. P. C. After the lodging of this second F. I. R. the father of the complainant therein, namely Muhammad Aslam died because of the injuries sustained by him in the fight and therefore section 302, P. P. C. was also added subsequently.

4. The case based on this second F. I. R., lodged by Matloob Hussain respondent No. 4 was transmitted to the Sessions Judge, Jhelum for trial as required by section, ,190, (3), of the Criminal Procedure Code.

5. The challan in the first` case that is the one based on F.

1. R. No. 184 was put up in the Court of a Magistrate on 9th April, 1977 The Magistrate finding Matloob Hussain and Mureed Hussain respondent:, Nos. 4 and 5 as persons employed in the Army, on 20th May, 197 directed sending of an intimation to the Commanding Officer of the said two persons (Commanding Officer Army Supply Corps, Mangla) as provided by section 549, Cr. P. C. On 8th June, 1977. Matloob Hussain accused respondent No. 4 appeared before the Court and stated that he had since been discharged from the Army. Accordingly a fresh intimation was directed to be sent to the Commanding Officer of accused Mureed Hussain respondent No.

5. No reply was received to this communication addressed by the Magistrate to the Commanding Officer till 24th July, 1977 when the Magistrate sent the case to the Court of Session for trial for the reason that the connected case under section 302, P. P. C. had already been transmitted to the Court of Session. This case was received in the Court of the Sessions Judge, Jhelum on 16th August, 1977. The learned Sessions Judge sent a fresh intimation to the Military Authorities on 3rd October, 1977 asking them as to whether they would try Mureed Hussain accused. Some adjournments intervened when on 19th December, 1977 the Military Authorities informed the Court of Session, Jhelum that they would try Mureed Hussain accused‑respondent No. 5 herein. On receipt of this intimation the learned Sessions Judge Jhelum, by his order dated 8th January, 1978 directed that the case of accused Mureed Hussain respondent No. 5 be forwarded to the Command ing Officer, Fd Vet Section Mangla Cantt, after making a statement of the offence of which he is accused as required under section 549, Cr. P. C.

6. Muhammad Azam petitioner feeling dissatisfied with this order of the learned Sessions Judge instituted the present writ petition calling in question the said order as also the consequent action of respondents Nos. 2 and 3.

7. The learned counsel for the petitioner contended‑ firstly, that the period of 15 days provided for by rules 2 and 5 of the Criminal Procedure (Military Offenders) Rules, 1970 having elapsed after intimation to the concerned Military Authorities, the: order passed by the learned Sessions Judge thereafter was without lawful authority ; secondly, that since there were cross cases registered at the behest of the parties it would be‑ more appropriate if both the cases are tried together by the same forum ; and thirdly, that section 549, Cr. P. C. is applicable to cases which may be pending before a Magistrate and shall not be applied to such cases as may be triable by a Court of Session. In support of this contention the learned counsel placed reliance on (Commander M. S. K. Ibrat v. The Commander‑in‑Chief, Royal Pakistan Navy and others P L D 1956 S C (Pak.) 264.

8. The learned Assistant Advocate‑General, in reply, submitted that the basic point for determination in this case is whether the court martial can validly try Mureed Hussain accused or not it being immaterial whether the handing over of the case of Mureed Hussain accused to the Commanding Officer of the accused had been done validly or not. He also relied upon the afore cited case to contend that the Supreme Court though held that the Special Judge was not a Magistrate within the meaning of section 549, Cr. P. C. therefore that section was not applicable to the case, nevertheless upheld the continuing of the trial by the Naval Authorities. He also cited Rashid Akhtar Naqvi v. Irshad Ahmad Lodhe and others (P L D 1965 Lah.492) to support his above contention. The learned Assistant Advocate‑General also submitted that the provisions contained in section 94 of the Army Act, 1952 clearly spell out that the discretion vests in the prescribed officer to choose and decide before which Court the proceedings shall be instituted in case the civil offence committed by a person subject to Army Act is triable both by a criminal Court and a court‑martial and that once the prescribed Officer intimates the ordinary criminal Court that the trial is to be conducted before a court‑martial, then as provided by the Criminal Procedure (Military Offenders) Rules, 1970, the Magistrate has no option but. to hand over the accused to the Commanding Officer of the accused with a statement of allegations as laid down in section 549, Cr. P. C.

9. The main points requiring determination are :‑ (i) whether Mureed Hussain accused respondent No. 5 can .be tried by a court‑martial in the case in hand ? (ii) whether the handing over of the accused Mureed Hussain by the Sessions Judge to the Commanding Officer under the impugned order was competently done and if not what is its effect ? and (iii) whether the Sessions Judge acted illegally in passing the impugned order of handing over the accused Mureed Hussain ‑respondent No. 5 to the Military Authorities for trial after efflux of 15 days ?

10. Taking into consideration the last point first, it may be observed that rules 2 and 4 of the Criminal Procedure (Military Offenders) Rules, 1970 do not place any embargo on the handing over of an accused after the expiry of 15 days from the date of service of notice on the Military authorities. Section 549, Cr. P. C. lays down that when a person subject to any of the enactments enumerated thereunder is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a court‑martial such Magistrate shall have regard to rules as may be framed by the Central Government consistent with the Code and shall in proper cases deliver the accused brought before it together with a statement of the offence of which he is accused to the Commanding Officer concerned for the purpose of being tried by a court‑martial. The rules viz. The Criminal Procedure (Military Offenders) Rules, 1970 when read as a whole make it clear that the provision with regard to 15 days notice is only directory and is to be taken as art interim stay by the Magistrate in respect of proceedings pending before him so as not to proceed to do any of the things enumerated in clauses (a), (b), (c) and. (d) of rule 2 (ibid) during that period. Rule 3 clearly provides that where within the period of 1 5, days mentioned in rule 2 or at any time thereafter before the Magistrate has done any act or issued any orders referred to in that rule the compe tent Military Authority gives .notice to the Magistrate that the accuses should be tried by a court‑martial, the Magistrate shall stay proceeding and shall deliver the accused with the statement of the offence prescribe(. by section

549. Cr. P. C. to the authorities specified in the said section On a conjunctive reading of rules 2 and 3 of the Criminal Procedure (Military Offenders) Rules, 1970, it therefore emerges that there would be no embargo in the delivery of an accused for trial by a court‑martial even after the expiry of 15 days of the service of notice upon the Military authorities where no action as described in clauses (a) to (d) of rule 2 (ibid) has been taken by the ordinary criminal Court. The option of the A Military authorities to try the accused by a court‑martial when exercised in accordance with the rules is final and not open to question as is also borne out from section 94 of the Pakistan Army Act, 1952. There is, thus, no illegality committed by the learned Sessions Judge in directing the delivery of the accused Mureed Hussain respondent No. 5 to the Military, authorities after the expiry of 15 days.

11. Adverting, now to the other two contentions raised by the learned counsel for the petitioner, it may be observed that it is the admitted position that the accused Mureed Hussain‑respondent No. 5 is subject to Pakistan Army Act. That being so, he is liable to be tried by court‑martial under section 59, read with section 8 (2) of the said Act Assuming that the order of the learned Sessions Judge dated 8th January 1978 is not maintainable in law this writ petition in any case cannot succeed so as to restrain the Military Authorities from proceeding with the case as against the accused Mureed Hussain respondent No.

5. The Supreme Court in (Commander) M. S. K. Ibrat's case has clearly laid down that section 549, Cr. P. C. read with the Criminal Procedure (Military Offenders) Rules, 1970 bring about the clear result that the jurisdiction of all criminal Courts under the Criminal Procedure Code is ousted if the competent Military Authority wishes to have the accused tried by a court‑martial. It has also been held that section 549, Cr. P. C. does not limit the power of such authority to order trial of an accused by a court‑martial. That being so, the contention as to whether a Sessions Judge can be equated with a Magistrate for the purpose of section 549, Cr. P. C. loses all significance it being wholly unimportant whether the delivery of the accused Mureed Hussain‑respondent No. 5 by the Sessions Judge to the Military Authorities was rightly ordered or not. The all important consideration in the matter would be whether the accused was or was not subject to Pakistan Army Act, 1952 and could be tried by a court-martial or not. If an accused is subject to Pakistan Army Act he could be tried by a court‑martial and his trial cannot be questioned merely on the ground that he was handed over to the Military Authorities illegally The contention thirdly raised on behalf of the petitioner also therefore fails.

12. Apart altogether from the above position, yet another aspect of the matter is the locus standi of the petitioner to question the delivery of the accused Mureed Hussain‑respondent No. 5 to the Military Authorities for trial by a court‑martial. It is well settled law that an accused has no vested right in the forum or in the procedure and much less a right would be available in this regard to a complainant. A complainant cannot claim to be vested with any legal right to have his complain tried by a particular person or under a particular procedure. In this view of the matter it is extremely doubtful if the petitioner could be termed an "aggrieved person" within the meaning of Article 199 of the c Constitution. It may be pointed out here that the present one is not case where Mureed Hussain accused‑respondent No. 5 is being allowed to go untried for the offence allegedly committed by him. Had it been so, there may well have been a reason for the petitioner to move a petition under Article 199 of the Constitution of Pakistan (1973).

13. In view of the foregoing discussion, there is no merit in this writ petition which is accordingly dismissed. Petition dismissed.