P L D 1965 (W (PLP)

Dates of hearing: 29th October, 27th November 1963, 19th and 20th March 1964. This is a petition under sections 526 and 561‑A of the Criminal Procedure Code with a prayer that the order of the Sub‑Divisional Magistrate, Murree, transferring the complaint lodged by the petitioner's wife against respondent No. 1 in that Court to a Military Court of Inquiry on the 21st of June 1962, may, be quashed and the complaint may be considered to be still pending in the Court of the S. D. M., Murree, as it was before its transfer for the reason that the procedure adopted for transferring of the complaint lodged by the petitioner's wife to the Military Court of Inquiry is unwarranted by law and has no legal authority attached to such a transfer.

2. Mst. Ikhtesar Sultana Begum wife ‑of Rashid Akhtar Nadvi petitioner, filed a complaint under sections 441, 442, 447, 448, 378 and 380, P. P. C. against Major Irshad Ahmad Lodhi respondent on the 9th of May 1962, on the allegation that on the 6th of May 1962, when she along with his family re ached Murree to spend the summer, she found that the respondent had occupied half portion of the bungalow without the petitioner's knowledge, authority or permission. It was entertained by the learned Sub Divisional Magistrate, Murree, who examined the complainant and four other witnesses, namely, Muhammad Parvez, Rashid Akhtar Nadvi, Abdul Latif and Mumtaz Husain. He issued process to the accused respondent No.

1. The accused appeared before him on the 29th of May 1962. On that day, the learned Magistrate made a reference under section 549, Cr. P. C., to the Head Quarters of 12 Division, Murree asking them whether they would like to try the accused under the Military Law or the Ordinary Law. In reply thereto the learned Sub‑Divisional Magistrate was informed by a letter dated the 18th of June 1962 that the General Officer Commanding had decided that the case against the respondent would be dealt with under the Military Law. A letter dated the 20th of June 1962 was also issued on behalf of the General Officer Commanding, Head‑Quarters 12 Division, to the petitioner that a Court of Inquiry had been constituted and that he should appear and make statement before the Court of Inquiry and produce proof in support of his allegations. This letter was delivered to the petitioner by the Sub‑Divisional Magistrate with his endorsement thereon. The petitioner participated in those proceedings which concluded somewhere near the 28th of September 1962. The petitioner had not been informed of the result till he filed the present petition.

3. The respondent had also made' a complaint against the petitioner and his wife for a criminal trespass. The police submitted a report in the Court of the Sub‑Divisional Magistrate against the petitioner for an offence under section 448, P. P. C. The petitioner was ordered to appear in that Court on the 11th of March 1963. It was after this on the 21st of March 1963, that the petitioner filed the present petition, praying that the order of the Sub‑Divisional Magistrate, Murree, transferring the complaint lodged by tote petitioner's wife against respondent No. 1 to the Military Court of Inquiry on the 21st of June 1962 be quashed and the complaint may be considered to be still pending in the Court of the Sub‑Divisional Magistrate, Murree. He also prayed that the proceedings initiated in the Court of the Sub‑Divisional Magistrate on the report of the respondent No. 1 against the petitioner under section 448, P. P. C. be quashed and, in the alternative, they may be transferred to a Court of competent jurisdiction at Lahore.

4. It may, however, be mentioned that during the pendency of these proceedings the petitioner was informed by the General Officer Commanding by his letter, dated the 19th of March 1963 that the allegations levelled by him against the respondent had not been proved.

5. The case of the petitioner is (1) that the transfer of the complaint from the Court of the Magistrate to the Military Court was not in accordance with the provisions of section 549, Cr. P. C. inasmuch as the action was taken before the charge had been framed against the respondent, (2) that, at any rate, the Sub Divisional Magistrate, could stay the proceedings only if he had received a notice from the Commanding Officer of the accused to the effect that in the opinion of the "competent Military authority" the accused should be tried by a Court‑martial,, and that, in the instant case, the Magistrate acted without jurisdiction in staying the proceedings before him on an order of the Commanding Officer who was not a "competent Military authority", as contemplated in rule 6 of the Criminal Procedure (Military Offenders) Rules, 1958. These points were urged to contend that the Sub‑Divisional Magistrate had jurisdiction to enquire into the offences against the respondent and was competent to try him, but he acted illegally in refusing to exercise his jurisdiction in transferring the case to the Military authorities.

6. It is not disputed before me that the offences mentioned in the complaint are civil offences within the meaning of section 8(2) of the Pakistan Army Act, 1952. "Civil offence" for the purposes of the Pakistan Army Act is defined as an offence which; if committed in Pakistan, would be triable by a Criminal Court. Under section 59 of the Pakistan Army Act every person subject to the said Act, who commits any civil offence, is deemed to be guilty of an offence under Military Law and if charged therewith under the section, is liable to be tried subject to the provisions of the Act for the same by Court‑martial. Under the circumstances, even if it be assumed that the learned Sub Divisional Magistrate had no jurisdiction or had acted illegally in the exercise of his jurisdiction in transferring the case to the Military Court, it will not make any difference so far as the trial of the respondent by a Court‑martial is concerned. The Military, Court which tried the respondent was a Court of competent: jurisdiction. The fact that a Court assumed jurisdiction in a case on an erroneous or illegal refusal by another Court of equally is competent jurisdiction to deal with it will not make the proceedings of the former Court irregular or without jurisdiction. If it be found that the learned Sub‑Divisional Magistrate divested himself of the jurisdiction which vested in him to try the respondent, that would on no account mean that the Court martial which was seized of the case had no jurisdiction to try the respondent. This was the view taken in M. S. K. Ibrat v: The Commander‑in‑Chief, Royal Pakistan Navy arid others (P L D 1956 S C (Pak.) 264). The facts of that case briefly are that Mr. Ibrat held the rank of Commander in the Pakistan Navy. He was charged before a Special Judge exercising jurisdiction under sections 408, 409, 454 and 457, P. P. C. The Special Judge, however, on demand of the Naval authorities, handed over the appellant to Naval Officers for being tried by a Court‑martial. The appellant applied to the High Court for a writ of habeas corpus etc., against the Naval authorities and also for a writ of certiorari to have the proceedings before them quashed. It was held that the Special Judge was not a Magistrate within the meaning of section 549, Cr. P. C. and, therefore, that section was not applicable to the case, In this view of the matter, the Special Judge was not bound to act under section 549, Cr. P. C. to deliver the accused to the, Naval authorities under the orders of the Commander‑in‑Chief. The Special Judge would have been within his right to refuse any such requisition and could carry on the proceedings against the respondent in respect of the offences of which he had taken cognizance. Repelling the argument that the Special Judge exceeded his powers in delivering the person of the appellant to the Naval authorities and that he was bound to try and acquit or convict the appellant, thus barring a subsequent trial of the appellant by a Court‑martial constituted under the Naval Discipline Act, it was held by‑ their Lordships of the Supreme Court: "The question in this case

is not whether the Special. Judge had jurisdiction to proceed with the case, but whether the Court‑martial which is now trying the appellant had the jurisdiction to try, him. These questions are two different questions and are not to be confounded with each other . . . If it be found that he wrongly divested himself of the jurisdiction which vested in him to try the appellant, that would on no account mean that the Court‑martial which is now seized of the case has no jurisdiction to try the appellant." In that case the Special Judge was riot under any obligation whatsoever to follow the provisions of section 549, Cr. P. C. The entire proceedings taken by him in transferring the case were null and void: None‑the‑less it was held that the trial before the Court‑martial was not defective on that score. In the' present case on the contrary the learned Sub‑Divisional Magistrate is bound by the provisions of section 549, Cr. P. C. Assuming, therefore, that there was any defect or illegality in the proceedings which resulted in the transfer of the case to the Court‑martial, the trial of the respondent before the Military Court is not open to any exception.

7. It may, however, be noticed that the contentions raised on behalf of the petitioner are devoid of any force. It is not disputed that at the relevant time the respondent was an officer of the Pakistan Army and so subject to the Military law. Section 549, Cr. P. C. was applicable to his case. By reason of section 549, Cr. P. C. the Central Government can make rules consistent with the Code and the Army Act, the Naval Discipline Act as modified by the Pakistan Navy (Discipline) Act. 1934. and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to Military, Naval or Air Force Law shall be tried by a Court to which the Code applies or by Court‑martial. When a person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which the Code applies or by Court‑martial, the Magistrate shall have regard to the rules and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the Commanding Officer of the regiment concerned, corps, ship or detachment to which he belongs, or to the commanding officer of the nearest Military, Naval or Air Force station, as the case may be, for the purpose of being tried by Court‑martial. On the 7th of November 1958 the Government of Pakistan in the Ministry of Law published a Notification No. F. 24/58-Sol. making rules as to cases in which persons subject to Military, Naval or Air Force law are to be tried by a Court to which the Code of Criminal Procedure applies or by a Court‑martial. Rules 1, 2, 3 and 6 are material, and are reproduced below:‑ "(1) These rules may be called the Criminal Procedure (Military Offenders), Rules, 1958. (2) Where a person subject to Military, Naval and Air Force Law is brought before a Magistrate, and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act as modified by the Pakistan Navy (Discipline) Act, 1934, or the Air Force Act (44 & 45 Vict. c. 58 and 29 & 30 Vict. c. 109), to be tried by a Court‑martial, such Magistrate unless he is moved by the competent Military, Naval or Air Force authority to proceed against the accused under the Code of Criminal Procedure, 1898, shall before so proceeding give notice to the Commanding Officer of the accused, and until the expiry of a period of five days from the date of service of such notice, shall not‑ (a) convict the accused under section 243, acquit him under section 247 or section 248, or hear him in his defence under section 244 of the said Code, or (b) frame a charge against the accused under section 254 of the said Code, or (c) make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of sub section (1) of section 446 of the said Code, or (d) transfer the case for enquiry or trial under section 192 of the said Code, or (e) issue an order under subsection (1) of section 445 of the said Code for the case to be referred to a Bench. (3) Where within the period of five 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 Commanding Officer' of the accused gives notice to the Magistrate that, in the opinion of competent Military, Naval or Air Force authority, as the case may be, the accused should be tried by a Court‑martial, the Magistrate shall stay proceedings, and, if the accused is in his power or under his control, shall deliver him, with the statement prescribed by section 549 of the said Code, to the authority specified in the said section. (6) In these rules `competent military authority' means the Senior British Officer serving with the Pakistan Army, `competent naval authority' means the Commander‑in‑Chief, Pakistan Navy, or in the case of persons subject to the Naval Discipline Act, the Senior British Officer serving with the Pakistan Navy and 'competent air force authority' means the Senior Royal Air Force Officer Commanding Royal Air Force personnel serving with the Pakistan Air Force." These rules are identical with the earlier rules which the Government of India had published on the 12th of March 1935 in Notification No. F. 102/35, except that rule 6 then was differently worded, which, for convenience and to deal with an argument raised in this behalf, is reproduced below:‑ "(6) In these rules 'competent Military authority' means the Brigade Commander, 'competent Naval authority' means the Flag Officer Commanding, Royal Indian Navy‑ and 'competent Air Force authority' means the Air Officer Commanding, Royal Air Force in India."

8. It is contended on behalf of the petitioner that it was not obligatory for the Sub‑Divisional Magistrate to send the case to the Military authorities and he could do so only in proper cases and the present case was one where propriety demanded that he should have tried the case himself. It seems to me that this contention cannot be supported by the language of rule

1. There are two courses open to the Magistrate in a case covered by the said rules, The Magistrate may proceed with the trial; but before he proceeds to try the accused, he must give notice to the commanding Officer of the ‑accused and wait for a period of five days from the date of the service of such notice. He may also, if he is moved by the competent Military, Naval or Air Force Authority, proceed to try the accused. In this case it is clear from the record that the Magistrate did not wish to try the accused without being moved thereto by the competent Military Authority. He, therefore, wrote to the General Office Commanding informing him of the case and sought his instructions. The learned Sub‑Divisional Magistrate thus acted strictly it accordance with the provisions of these rules.

9. It was, however, objected that the Magistrate could take action under section 549, Cr. P. C. only after the charge had 'been framed. The emphasis was placed on the words "when any person is brought before a Magistrate and charged with an offence for which he is liable he shall deliver him" to the Commanding Officer. It is true that in section 223 and sections 234 to 237, Cr. P. C. the words "charged with" have been used to denote that a charge has been framed. In the context of these proceedings it cannot be said that the words "charged with" here in section 549 are used to denote anything else except that a person was accused of. If this be not the interpretation, it would lead to anomalous results. In cases triable by the Court of Session the committing Magistrate only enquires into the offence and the charge is framed only towards the end of the commitment proceedings. It could not be the intention of the Legislature that in such cases the Magistrate can proceed with the case although the accused is subject to the provisions of the Pakistan Army Act and is liable to be tried by Court‑martial. Reference to rule 2 reproduced above, that even in those cases where the Magistrate comes to the conclusion that he should proceed with the trial himself, he must before so proceeding, give notice to the Commanding Officer of the accused and until the expiry of five days' he cannot frame the charge or make an order of commitment, The action to be taken under section 549, Cr. P. C., therefore, clearly has to be prior to the framing of the charge. The words "charged with used in section 549, Cr. P. C. are used in the sense of "accused of" and not in the sense that charge has been framed against the person.

10. It was next argued that the General Officer Commanding; of the respondent could not give any notice to the Magistrate unless he had ascertained the opinion of the competent Military Authority that the accused should be tried by a Court‑martial. It was urged that competent Military Authority had to be the Senior British Officer as contemplated in rule

6. Reading rule 6 and rule 3 together the objection raised on behalf of the petitioner seems to be not without foundation. It is not the case of the learned Deputy Attorney‑General that the opinion of the competent Military Authority, namely, the Senior British Officer, was taken in this case. The General Officer Commanding, therefore, sent a notice not strictly in conformity with rule

3. The learned Sub‑Divisional Magistrate, under the circumstances, tad could have ignored it and proceeded with the trial if he had so liked and nobody could object as to the legality of the trial. He, however, did not do so and sent the case to the Military authorities, who otherwise were competent to hear the case of the accused as already observed. The fact that the Sub‑Divisional Magistrate acted contrary to the provisions will not affect the merits, of the case on the ratio decidendi of M. S. K. Ibrat v. The Commander‑in‑Chief, Royal Pakistan Navy, and others. I, however cannot help observing at this stage that rule 6 of the Criminal Procedure (Military Offenders) Rules, 1958, as notified on the 7th of November 1958, was a complete departure from the earlier rule 6 which also defined competent Military Authority. Under the Rules of 1935 when the Army was British Indian Army, the competent Military Authority was defined as a Brigade Commander, but in 1958 when the Pakistan Army had been completely nationalized, the words "competent Military authority" were deft d as the Senior British Officer serving in Pakistan Army. The reasons for such a change are beyond my comprehension, more particularly when we have not and, if at all, only a few British Officers. The matter should be brought to the notice of the Government of Pakistan, Law Department, with a copy to the commander‑in -Chief of the Pakistan Army.

11. There is yet another aspect of the case. Apart from, section 549, Cr. P. C. and the rules made thereunder the trial of the respondent before the Military Court was competent under the Pakistan Army Act, 1952. A criminal Court and a Court martial have concurrent jurisdiction in respect of civil offences of a person subject to the Pakistan Army Act. The conflict on jurisdiction is resolved by sections 94 and 95 of the Pakistan Army Act. Under section 94 the prescribed officer is to decide before which Court the proceedings shall be instituted, and if that officer decides that they shall be instituted before a Court- martial he can direct accordingly. "Prescribed Officer" for purposes of sections 94 and 95 is defined as an officer having power not less than that of a Brigade Commander or the Officer Commanding the station in which he is serving. The letter written by the General Officer Commanding on the 18th of June, 1962, is, therefore a decision by a prescribed officer within the meaning of section 94 that the accused would be tried by a Military Court. The object of the section is to avoid multiplicity of proceedings before two Courts in respect of the same offence and against the same person. The general rule, however, as observed at page 74 of the Manual of Pakistan Military Law, 1957, (1958 Edition) in Pakistan and places outside Pakistan where a competent criminal Court has been established, is to try by a, criminal Court a civil offence committed by a person subject to the Pakistan Army Act if the offence is one which relates to the property or person of a civilian or is committed in conjunction with a civilian. The general rule is, however, subject to the discretion of the prescribed officer who may direct the trial by a Military Court. On behalf of the petitioner it was urged that the Officer Commanding could take action under section 94 of the Pakistan Army Act before the proceedings had been instituted in the Court of the Sub Divisional Magistrate, and the word "instituted," according to him, meant "initiated". Section 94 is identical with section 69 of the Indian Army Act, 1911. In Kartar Singh Sardar Jit Singh v. Imperator (A I R 1946 1ah. 103), a similar question arose. In that case the Full Bench was dealing with habeas corpus petitions of two persons, namely, Gobind Ram and Kartar Singh. In the case of Gobind Ram the first information report was lodged by Captain White, Garrison Engineer, and in the case of Kartar Singh the first information report had been lodged by an Inspector, Indar Singh of the Defence Department. A Magistrate took cognizance of these offences, but they were withdrawn from the ordinary Criminal Courts to be tried by Courts‑martial. This was done under the provisions of section 69, Indian Army Act. On behalf of Gobind Ram and Kartar Singh it was argued that the Court- martial trying them had no jurisdiction by reason of the fact that the proceedings had been instituted in the ordinary criminal Courts. It was held;‑ "Although the proceedings first took place in the ordinary criminal Court, it is admitted that when they were reported to the prescribed Military authority, he ordered that they should be instituted in Military Courts. Section 449, Criminal P. C., was no doubt enacted to meet such cases as the present and, in my view, it cannot be said that the Military Court had no jurisdiction because first information reports were lodged and the cases came before Magistrates. This happened before the prescribed military authority could have decided where the cases should be instituted and when he did so decide, .the cases were thereafter properly conducted under the Indian Army Act." (In my opinion, section 449, is wrongly mentioned instead of section 549, Criminal Procedure Code). This is sufficient to conclude the contention of the learned counsel for the petitioner in this behalf and there remains no doubt as to the fact that the prescribed authority could take action under section 94 notwithstanding the fact that the proceedings were already pending in the Court of the Sub‑Divisional Magistrate. In the present case the prescribed officer has exercised his discretion s and the civil offences alleged against the respondent, therefore, were triable by a Court‑martial.

12. The next question which arises for consideration is whether the criminal Court can still proceed with the case against the respondent Section 96 of the Army Act says that "notwithstanding anything contained in section 26 of the General Clauses Act, 1897, or in section 403 of the Code of Criminal Procedure, 1898, a person who has been convicted or acquitted by a Court‑martial, or whose case has been summarily disposed of under this Act or the rules framed under this Act, may be afterwards tried by a criminal Court for the same offence or on the same facts." It will thus be clear that the finding of the Military Court that the facts have not been proved against the respondent will be no bar to further proceedings being taken against him in a criminal Court. The principle of autrefois acquit will not apply. This section in effect makes it clear that the Civil Law remains supreme and that a person subject to Military Law is not thereby exempt from the Civil Law. In case a person subject to the Army Act is tried for a civil offence by Criminal Court, as provided in section 96 of the Pakistan Army Act, he is not liable to be tried again for the same offence by a Court‑martial under the Pakistan Army Act. On the contrary, if a person is acquitted or convicted of an offence by a Court martial he may still be tried by a criminal Court for the same offence or on the same facts, provided it is an offence against the Criminal Law of Pakistan.

13. I may now deal with the other case filed by Major Irshad Ahmad Lodhi against the petitioner. It was vehemently argued that these proceedings were an abuse of the process of the Court and they had been initiated with a view to humiliating him and to deter him from taking any further action. Doubtless, the power conferred on this Court under section 561‑A, Cr. P. C. is to do real and substantial justice for the administration of which alone Courts exist. It is the inherent power of the High Court to interfere with the proceedings of the lower Courts at any stage when it finds that an abuse of the process of law is being carried on in the trial of the case, or that such an interference is necessary to secure the ends of justice. There may be a case in which the prosecution on the face of it is illegal. Proceedings in such a case can be rightly quashed even though they may be at the initial stages. There may be other cases where a bare statement of the facts of the case may be sufficient to convince the Court that no case is made out against the accused and if the case is allowed to proceed, it would be a mock trial. In such cases and in other cases where the admitted circumstances of the case do not constitute the offence, this Court can proceed to remedy the wrong forthwith and quash the proceedings. In the present case, the allegations made by the respondent have to be substantiated by evidence and the case is not a fit one for quashment at this stage.

14. No ground for the transfer of the case to Lahore has been made out. There is no allegation whatsoever against the learned Sub‑Divisional Magistrate. Mr. Qadir Nawaz, moreover, has been transferred from Murree. In the view of the matter I take, the petition is dismissed. A. H. Petition dismissed.