P L D 1956 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This is a certified appeal from the judgment of a Division Court consisting of Constantine and Muhammad Bachal, JJ., of the Karachi Bench of the West Pakistan High Court, rejecting an application by the appellant for Writs of habeas corpus, prohibition and certiorari against the Federation of Pakistan, Commander‑in‑Chief of the Royal Pakistan Navy and the Commanding Officer of H. M. P. S. Bahadur. The circumstances under which the appeal comes to this Court are these The appellant, M. S. K. Ibrat, is an Officer in the Pakistan Navy with the rank of Commander. At the relevant time he was the Senior Supply Officer in a Shore Establishment of the. Navy, called H. M. P. S. Dilawar. On the night of the 1st and 2nd January 1956, a sum of Rs. 1,31,130 was removed from an official safe in the office of the appellant. The appellant report:.: the theft to police Station TPX, Harbour Section Karachi, on the 2nd January 1956. Investigation having been taken up by the C. I. D., it was discovered that the appellant himself had removed the money and that no theft had in fact taken place. He was accordingly arrested on the 9th January and produced before the District Magistrate, who remanded him to police custody for a fortnight. On the 23rd January 1956,. the police submitted to the District Magistrate an application for further remand on the ground that the matter was still under investigation but the District Magistrate passed on the papers to the Special Judge. Mr. Ghaznavi, who remanded the appellant to the Judicial lock‑up for one week. On the 24th January the Commander‑in‑Chief of the Royal Pakistan Navy informed the Special Judge that he ‑bad appointed a Naval Board of Enquiry to investigate the facts relating to the disappearance of the money, that the Boards had submitted to him ‑a report to the effect that there was a prima facie case against the appellant, that accordingly he had decided to have the appellant tried by a Court‑martial and that if the appellant bad been or was about to be released on bail, he should be handed over to the Provost Marshal for trial by the Court‑martial. The appellant was produced before the Special Judge for further remand on the 30th January 1956, but the Judge gave only a day's remand and referring to the intimation that he had received from the Commander‑in‑Chief that it hats beep divided to have the appellant tried by a Court‑martial, fixed the case for arguments on the question whether section 549 of the Code of Criminal Procedure entitled him to keep the appellant in custody when he was required by the naval authorities. On the 1st February the Judge addressed a letter to the Commanding Officer, H. M. P. S. Dilawar enquiring in accordance with section 549 of she Criminal P. C. whether the appellant was to be tried by a Court‑martial of by the Judge himself, and whether the person of the appellant was required by the Navy irrespective of whether he was released on bail or not, and intimating that if the letter was not replied to within five days he would proceed according to law. In reply the Commanding Officer Informed the Special Judge by a letter dated the 3rd February that the competent naval authority had decided to have the appellant tried by a Court‑martial and that therefore the appellant together wt the relevant papers should be handed over to Commander Anwar Murad and Lt. Commander M. K. Kazi the bearers of the letter. The letter was accompanied by a copy of the order of the Commander‑in‑Chief of the Royal Pakistan Navy, to the effect that the competent naval authority had decided that the appellant was to be tried by a Court‑martial and that‑the Special Judge should be asked to hand over the custody of the appellant to the Navy irrespec tive of whether he was bailed out or not. On the 4th February the Special Judge recorded ' an order stating that the legal position appeared to him to be that if the competent naval authority demanded the custody of a naval officer for trial by a Court‑martial, he was bound, to surrender him, to. that authority. He, therefore, delivered the appellant to the Naval Officers who had brought the earlier requisition. After .he had been delivered to the Naval authorities the appellant applied to the Karachi Bench of the High ,Court .of , West Pakistan for a Writ of habeas corpus on the ground that he, wa4 not liable to be dealt with under the Naval Discipline Act and should, therefore, be ordered to be released. This application succeeded on the ground that H. M. P. S. Dilawar was not a ship in commission and a Writ of habeas corpus was issued on the 6th March 1956, directing the naval authorities to release the appellant. After the announcement of this judgement the law was amended by an Ordinance and the appellant was again arrested by the naval authorities for trial by a Court‑martial. The appellant again applied to the High Court for Writs of habeas corpus, prohibition and certiorari against the naval authorities and the Federation of Pakistan, but this time the application failed, though the learned Judges certified the case to be a fit one for appeal to this Court, After the appeal was filed in this. Court, the Ordinance was replaced by an Act, Act II of 1956. After completing the investigation the police had made to final report to the Special Judge stating that, the investigation had shown that the appellant had been guilty bf offences under sections 408, 409, 454 and 457 of the P. P. C. It is; however, not disputed that the appellant is now being tried by the Court‑martial for offences which ate punishable under the Naval Discipline Act, XXXIV of 1934. The Special Judge had divested himself of the jurisdiction to try the appellant for the offences reported against him, by following the procedure prescribed by section 549 of the Code of Criminal Procedure. But the High Court laws found that this section of the Code was not applicable, and the sole point attempted to be made before us by Mr. Mahmud Ali is that the High Court having found that the procedure of section 549 ,was not applicable to the appellant's case, the Special Judge should not have delivered the ;appellant to the naval authorities and should have proceeded to try him in accordance with the procedure prescribed by the Criminal Law (Amendment) Act, XIX of 19.18, as amended by subsequent enactments. He had laid stress on the principle underlying the rule against double jeopardy without specifically referring to the statutory provisions which recognise or restrict the application of that rule to this country. He takes it for granted that section 543 not being applicable, the Special Judge was under alt obligation to carry on the proceedings against the appellant in respect of the offences of which he had taken or was required by the police to take cognizance, and that if he had done so, there would either have been an acquittal or a conviction which would have barred subsequent proceedings before a Court martial. In order to appreciate the implications of this argument it is first necessary to determine, whether the High Court was tight in the view that section 549 was not applicable to the circumstances of the case. That section empowers the Central Government to make rules consistent with the Code of Criminal Procedure and the Army Act, the Naval Discipline Act 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 of Criminal Procedure applied or by Court‑martial and provides that when any 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 by a Court‑martial, such Magistrate shall have, regard to the rules made by the Central Government and shall :n proper cases, deliver the offender together with a statement of the offence of which he is accused to the Commanding Officer of the regiment, corps, ship or detachment, to which he belongs or tea 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. In exercise of the powers conferred by this section the Central Government has framed certain rules, called the Criminal Procedure (Military Offender) Rules. These rules provide that witness a Magistrate is moved by the competent military, naval or air force authority to proceed against the accused under the Code of Criminal Procedure, the Magistrate, before whom a person subject to military, naval of air force law is brought and charged with art offence for which he is liable under tile Army Act, the Naval Discipline Act or the Air Force Act to be tried by a Court martial, shall, before so proceedings give notice to the Commanding Officer of the accused and until the expiry of period of 5 days from the date of service of such notice shall not acquit accused or take his defence in summons cases ; or frame a charge in warrant cases ; or make an order committing the accused to the Court of Session or the High Court ; or transfer the case fur inquiry or trial under section 192 of the Code of Criminal Procedure ; or issue an order under subsection (1) of section 445 of that Code for reference of the case to a bench. If within the time pres cribed by the notice the Commanding Officer of the accused notifies the Magistrate that the competent military, naval or air force authority is of the opinion that the accused should be tried by a Court‑martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver hint to the authority specified in section 549 together with the statement prescribed in that section. Even where initially a Magistrate has been moved by a competent military, naval or air force authority to proceed against the accused under the Code of Criminal Procedure, but the Commanding Officer of the accused subsequently gives notice to the Magistrate that in the opinion of that authority the accused should be tried by a Court‑mardal, the Magistrate shall stay the proceedings and deliver the accused together with the relevant documents to the authority mentioned in section 549 if the Magistrate has not before receiving such notice already taken any such action as he is enjoined by the rules not to take before the expiry of the period of the notice to the Commanding Officer. If despite the fact that the accused and the documents were delivered to the relevant military, naval or air force authority the accused is not tried by Court‑martial, the Magistrate shall report the circumstances to the Provincial Government. Thus the virtual effect of these rules is that the Magistrate's jurisdiction to dispose of the case is barred temporarily even where the competent military, naval or air force authority has required him to proceed against the accused under the Code of Criminal Procedure. Such jurisdiction is however, finally barred where the com petent military, naval or air force authority decides that the accused is to be tried by a Court‑martial. In the latter case, the Magistrate is bound to diver the person of the accused and the relevant papers to the prescribed military naval or air force authority, and if the accused is eventually not tried by a Court‑martial, the Magistrate's only recourse is to report the matter to the Central Government In some of the decisions of the Indian High Courts, therefore, section 549 of the Code of Criminal Procedure has been rightly held as barring the jurisdiction of the Magistrate to proceed with the case if he does not follow the procedure prescribed by the rules. The rules aim at the exclusion of the Magistrate's jurisdiction and the preservation of the power of the competent military, naval or air force authority to have the accused tried by a Court‑martial. The section is, however, limited in its application to Magistrates but because it also prohibits them from committing the accused to the Court of Session fir the High Court, then actual result when the section is read 'with the rules is that Code he jurisdiction of all Criminal Courts under the Criminal procedure is ousted if the competent military, naval or air force authority wishes to have the accused tried by Court‑martial. Thus the section cannot be construed as in any way limiting the power of such authority to order the trial of the accused by a Court‑martial. When the Criminal Procedure (Military Offenders) Rules were framed, the Special Judges now functioning under Act XIX of 1948 were not in contemplation. Under the enactment which has created them such Judges do not, like the Court of Session or the High Court, take cognizance of offences or try the offenders only on commitment by an inquiring Magis trate ;‑ they are directed by their charter to take cognizance of offences on complaints and police reports and without any preliminary enquiry by a Magistrate. Therefore the question how they should proceed when a person subject to military, naval or air force law is brought before them for trial has to be determined irrespective of section 5 49 and the rules made thereunder. This is the conclusion at which the High Court arrived on the authority of the decision in Blyth v. The King ((1950)51Cr. L J) and Mr. Mahmud Ali accepts this view as correct : in fact, he founds his whole argument on the correctness of this result. The learned Attorney‑General of Pakistan, however, has attempted to argue that a Special Judge is a Magistrate within the meaning of that word as defined in subsection (31) of section 3 of the General Clauses Act, 1897, but the argument proceeds on a fallacy because the definitions in that Act are subject to the important qualification "unless there is anything repugnant in the subject or context". Section 5 of the Pakistan Criminal Law (Amendment) Act, 1948 makes the provisions of the Code of Criminal Procedure applicable to the proceedings of the Court of Special Judge and for the purposes of those provisions makes the Court of the Special Judge a Court of Session trying cases without the aid of assessors or jury. In view of this provision it is impossible to describe the special Judge as, a Magistrate within the meaning of section 549 of the Code of Criminal Procedure or subsection (31) of :section 3 of the General Clauses Act. Accordingly, we( hold that the view taken by the High Court that section 549 of the Coda of Criminal Procedure was not applicable to this ,case was right. This finding, however, does not lead to the result which Mr. Mahmud Ali contends for. The question in this case, as we had repeatedly to point out to Mr. Mahmud Ali, 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. Rightly\or wrongly, they Special Judge held that in the circumstances he was precluded from proceeding with the ease. If it be found that he wrongly divested himself on the jurisdiction which vested in him to try the appellant, that would on no account mean that the Court‑Martial which is now ceased of tare case has no jurisdiction to try the appellant. The only statutory pro visions which in out system recognise the rule against double jeopardy are section 403 of the Code of Criminal Procedure and section 26 of the General Clauses Act, 1897. The former bars a second trial; the latter prohibits a person from being punished twice for the same offence, expressly recognizing that where an act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those enactments. Neither of these sections can therefore help the appellant because there has as yet been no trial to bar a second trial under section 403, and section 26 expressly permits an offender to be prosecuted and punished under either or any of the enactments that may be applicable to the case. We are not called upon to say what would be the position if the appellant having been convicted or acquitted by the Court‑Martial, is subsequently brought for trial before an ordinary Court. That question has not arisen and we express no opinion on it. All that we have to decide at present is whether the jurisdiction of the Court. Martial is excluded. The answer to this question must be in the negative because of the clear provision of section 12 of the Criminal Law (Amendment) Act, 1448 which provides that Nothing in this Act shall effect the jurisdiction exercised by or the procedure applicable to any Court or other authority under any military, naval or air force law". We cannot construe this section otherwise than as intending to preserve the jurisdiction and the procedure of Courts. If we accept Mr. Mahmud Ali's argument that section 549 of the Code of Criminal Procedure not being applicable the Special Judge was bound to proceed with the case and the acquittal or conviction of the appellant by him would have barred the jurisdiction of the Court‑Martial to try the appellant under the Naval Law, we shall be construing the Criminal Law (Amendment) Act, 1948 as having the effect of ousting the jurisdiction of the naval authorities to have members of the naval forces tried by Court‑Martial and this result will be directly opposed to the express terms of Section

12. This section seems to have been inserted to remove the defect which must have been noticed in the application of section 549 of the Code of Criminal Procedure to military offended accused of offences exclusively triable by Special Judges a pointed under the Criminal Law (Amendment) Act, 1948. The jurisdiction of a Special Judge having been expressly declared by the Act to be exclusive, an offender who, belonged to the army, the navy or the air force could only be tried by such Judge if the offence charged against him was such as a Special Judge was competent to try. To that extent therefore the jurisdiction of the Court‑Martial, whether it was constituted 'under the Army Act, the Naval Discipline Act or the Air Force Act, was excluded. The defect however, appears to have been discovered early and section II was added to the Act of 1948 to declare that though the jurisdiction of the Special Judge in respect of other classes of public servants charged with certain offences was exclusive, nothing contained in that Act was to have the effect of excluding any jurisdiction which an authority exercised under any military, naval or air force law. If the Act is construed in the manner suggested by Mr. Mahmud Ali, namely, 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, we would be arriving it a result which is clearly inconsistent with the spirit and letter of section 12 and would .thus be holding that there are provisions in the Act which have the effect of curtailing or ousting the jurisdiction exercised by an authority under the naval law, whereas the Act clearly directs that nothing In it shall affect the jurisdiction exercised by any Court or authority under any military, naval or air force law. We cannot therefore accept Mr. Mahmud Ali's contention and repel it. The question whether the person of the appellant was delivered to the naval authorities without any proper authority need not detain us long. What we have said above in rejecting the contention that the Special Judge was bound to proceed with the case is applicable mutatis mutandis to the contention that the Special Judge could not have delivered the person of the appellant to the naval authorities. Any construction of the Criminal Law (Amendment) Act which would take a power to deliver the appellant to the naval authorities for trial would bring us directly in conflict with section 12 of that Act. Under section 50 of the Naval Discipline Act the appellant could be arrested by the naval authorities while he was on bail, and we can discover nothing in the law against such arrest. But apart from this, the mere fact that a person has been arrested in an unauthorized manner does not, generally, affect the jurisdiction of the Tribunal before which he is brought for trial. In ex‑parte Susanna Scott (1) the accuse after committing a crime in England had absconded an was arrested in Belgium by a British Police Officer and brought back to England where he was arraigned before a Court. The illegality of his arrest having been set up by the defence as a bar to the trial, Lord Tentherden, C. J. rejected the plea, saying "The question therefore is this, whether if a person charged with a crime is found in this country it is the duty of the Court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which he was brought here: I thought, I still continue to think, that we cannot inquire into them". Dealing with a similar objection Lord Cockburn, C. J. in his charge to the jury in The Queen v. Nelson and Brand (2), said :‑ "Suppose a. man to commit a crime in. this country, (1) (1829) 9 B & C 446. (2) Charge to the Grand Jury Second Edition, p. 118. say murder, and that before he call be apprehended he escapes into some country with which we lave not an Extradition Treaty, so that we could not get him delivered up to us by the authorities, and suppose that as English Police Officer were to pursue the malefactor, and finding him in some place where he could lay hands upon him and from which he could easily reach the sea, got him on board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could riot refuse to commit him. If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said 'Nay' you are here ; you are charged with having committed a crime and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position ; settle that with him". There is also an Indian case, Emperor v. Vinayak Damodar Savarkar (I L R 35 Bom. 225), in which the illegality of the arrest of the accused was pleaded as a bar to his trial but was held to be irrelevant. In Perbhu v. Emperor (A I R 1944 P C 73), the delivery of the person of the accused to a Court in British India was held by the Privy Council to be regular but in the judgment delivered by Lord Macmillan are to be found the following pertinent observations:‑‑ "The contention of the appellant was that his arrest, having been effected in Jind territory by a British Indian Officer, was illegal and that the illegality of Hs arrest vitiated the whole subsequent proceedings. Their Lordships reject this contention. They assume that the arrest was open to objection as an infringement of the, sovereignty of Jind, although the Jind authorities, so far from resenting what had been done or regarding their rights as having been flouted, co‑operated most readily with the British Indian Police in bringing the appellant to justice. There was no suggestion of anything like kidnapping. In their Lordship's view, the validity of the trial and conviction of the appellant was not affected by any irregularity in his arrest. When the appellant was presented for trial at Rohtak he had been validly surrendered to the Court there by the Jind authori ties and so far as that Court was concerned everything was regular and in order." In the present case, the appellant was liable to arrest by the naval authorities. He was free when he was arrested, and the Special Judge who had admitted him to bail had willingly surrendered him to the naval authorities. The manner therefore in which he was brought before the Court Martial was in order, but assuming there was some irregularity in the arrest, it was wholly irrelevant to the legality of the jurisdiction which the Court‑Martial assumed over him by reason of his being subject to the Naval Discipline Act. We see no force it this appeal and dismiss it. Ordinarily, we make no order as to costs in criminal matters, and make none in the present case. M. SHAHABUDDIN, J.‑I agree SHARIF, J.‑I agree. A. H. Appeal dismissed.