P L D 2005 Lahore 391 (PLP)

(2) In particular‑‑‑‑ (3) No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (4) No person shall be prevented from or be hindered in doing that which is not prohibited by, law; and no person shall be compelled to do that which the law does not require him to do."

9. Article 25 of the Constitution further enjoins that all citizens are equal before law and are entitled to equal protection of law.

10. The question arises whether the detenus have not been treated equally in accordance with law. Article 5 of the Constitution envisages that; "(1) Loyalty to the State is the basic duty of every citizen. (2) Obedience to the Constitution and law is the obligation of every citizen wherever he may be and of every other person for the time being within Pakistan."

11. It will not be out of place to mention here that if a citizen which includes a person performing function in connection with the affairs of the State does not obey the Constitutional commands, then he is not performing his obligation imposed by the Constitution. The first duty of the citizens of the country is loyalty to State and if a person commits any offence against the State, then he is not entitled to the protection of fundamental rights and is liable to be prosecuted and dealt with in accordance with law enforced for the purpose. As stated by the learned D.A.‑G., the detenus being Army Officers have been arrested under Army Act, meaning thereby that they have committed the offence under the Act and were arrested under the same and they are liable to be prosecuted or dealt with in ‑accordance with law. Article 8 of the Constitution deals with the fundamental rights which says that:‑ "(1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the right so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The provisions of this Article shall not apply to:‑‑ (a) any law relating to members of the Armed Forces, or of the police or of such other Forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or (b) any of the‑‑ (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law, or provision is inconsistent with, or repugnant to, any provision of this Chapter." The provisions of Army Act are protected by the provisions of Article 8(3)(a) of the Constitution.

12. The stress of the arguments of the learned counsel for the petitioners was that written order of arrest which was necessary, has not been passed or placed on the file of this Court and the detenus have not been produced within 24 hours before the Magistrate for remand and that the non‑compliance of this provision of law vitiate the whole proceedings of detention. This point was dealt with in the case of Mrs. Shahida Zahir Abbasi (supra). In this case Hon'ble Judge of the Supreme Court, Saeeduzzaman Siddiqui while commenting upon the merits of the case observed as under:‑ ' "I now proceed to examine the contentions of petitioners on merits. The petitioners have jointly contended that at the time of their arrest they were neither shown any warrant of arrest by the arresting officer nor they were apprised of the grounds. It is also alleged that they were not produced before a Magistrate within 24 hours of their arrest as required by Article 10(2) of the Constitution for obtaining their remand. The respondents in reply to these assertions have contended that the arrest of these officers was ordered by the then Chief of Army Staff (C.O.A.S) and they were verbally informed by the officer who arrested them about the order of arrest and grounds of arrest. The Act is self‑contained code, which provides for all matters relating to arrest, detention and trial of a person accused of an offence under the Act. Section 73 of the Act provides for custody of an offender charged with an offence under the Act. This section provides that any person may be ordered into military custody by any superior officer except in the case of a person subject to this Act as an officer, by any member of the military, navel or air force police. This section further provides that an officer may be ordered into military custody of any other officer though he may be higher in rank who is engaged in a quarrel, affray or disorder. Note 2(b) appended to this section states that the arrest may be open or close and it may be ordered verbally or in writing except in cases of officers and Junior Commissioned Officers which should always be in writing. However, this note further states that absence of written order would not invalidate the arrest. Section 74 of the Act casts a duty on the Commending Officer of a person arrested, to ensure that he is not detained in custody for more than 48 hours after the committal of such person into custody without charge being investigated, unless it appears to the Commanding Officer that the investigation is not possible within that period. The case of a person detained, in custody beyond 48 hours is required to be reported by the Commanding Officer to the Officer to whore application is to be made to convene a General or District Court Martial for the trial of the person charged. In reckoning the period of 48 hours, this section provides that all public holidays will be excluded, section 75 of the Act provides that in every case when a person is arrested under section 73 of the Act and he is not on active service, if he is detained in custody for period longer than 8 days without Court Martial for his trial, special report giving reasons for the delay is to be made to the Commanding Officer in the prescribed manner and such a report is to be forwarded regularly at intervals of each 8 days until the Court Martial is assembled or such person is released from custody. Army Regulation A.R. (R) No.269 deals with the open and close arrest of an offender under the Act. A.R.(R). 270 provides that where a person is committed into custody of another officer then the officer committing the custody will deliver at the time or if that is not practicable, within 24 hours to the officer in whose custody the accused is committed, a report preferably in writing and signed by himself stating the alleged offence. If such a report is not received by the officer in whose custody the accused is committed, he is required to report the circumstances to the Commanding. Officer or other competent authority who will, if considered that the arrest does not appear to be justified, order release of the accused without prejudice to his re‑arrest in the case, it is also provided under this A.R. (R) that a person in whose custody the accused is committed will at the request of the accused inform him of the rank, name and unit of the person by whom he is alleged to have committed the offence and given him a copy of the charge report when received. A. R. (R) 296. provides that if a person arrested remains in custody for a period longer than 32 days without being brought to the trial, he will have a right to petition to the Judge Advocate‑General, GHQ, against his continued detention and. on the petition being filed, the Judge Advocate General will examine the petition along with the, comments of the formation concerned and advice release of the accused person, if it is found justified. The petition in such a case is to be treated as `immediate' at all levels. The punishment for irregular confinement of a person who has been detained without lawful excuse is provided under section 51 of the Act. . From the above discussion, it appears that for arresting a person accused of an offence under the Act, a written order or arrest is not necessary though it is preferable. The Act does not provide that a person arrested for an offence under the Act must be produced before a Magistrate for remand within 24 hours of his arrest as required by Article 10(2) of the Constitution. The custody of a person accused of an offence under the Act, after his arrest, is regulated in accordance with the provisions of sections 74 and 75 of the Act which do not provide for production of the accused before a Magistrate for remand within 24 hours of his arrest. Therefore; to this extent the provisions of the Act do not conform to Article 10(2) of the Constitution. However, as pointed out by me in the preceding discussion, the provisions of the Act are protected under Article 8(3) (a) of the Constitution from being challenged on .the ground of inconsistency with the fundamental rights, contained in Chapter I Part II of the Constitution, therefore, non‑compliance of the provisions of Article 10(2) of the Constitution, could not invalidate 'the arrest and detention of accused officers under the Act. I am therefore, of the view that non‑production of the accused officers within 24 hours of their arrest before a Magistrate in accordance with the provisions of Article 10(2) of the Constitution for obtaining their remand was of no consequence. Similarly, the absence of a written order of arrest of the accused in these cases could not invalidate their arrests as according to the contention of respondents, the accused officers were arrested under an oral order of C.O.A.S which is permissible under the Act though not. preferable. Learned counsel for the petitioners has also raised objection that the petitioners after their arrest were required‑ to be produced before the Commending Officer, concerned as required by section 74 of the Pakistan Army Act, the concerned Commanding Officer (C.O) of the accused is required to see that a person under his command is not detained in custody for more‑than 48 hours without the charge being investigated and in case of delay in the investigation beyond 48 hours, the C.O. is required to report the reasons for delay to the officer to whom application is to be made to convene a Court for the trial of the accused. "

13. It is an admitted position that the detenus have been arrested under the Army Act as stated by the learned D.A.‑G and we find that there is no reason disbelieve his statement and it is sufficient to infer that the detenus have not been arrested except in due course of law and the matter relating to the members of the Army Force are immune from scrutiny of this Court in view of Sub Article (3) of Article 199 of the Constitution except where the judgment is mala fide, without jurisdiction or coram non judice. Reliance tan be placed to the cases of Ex. Lt.‑Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others (PLD 2001 SC 549). In case of Mst. Naheed Maqsood v. Federation of Pakistan and 4 others (1997 CLC 13), it has been observed that where Clauses (3) & (5) of Article 199 of the Constitution are attracted, the ouster of jurisdiction if any, is absolute and it is not conditional upon the existence of some circumstances. The same principle had been laid down by the Hon'ble Supreme Court in case of Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 2286) which envisages that the relief regarding fundamental rights is included in Sub‑Article (1); which is clearly barred under Article 199 of the Constitution with regard to Sub Article (3) thereof. The matter has lastly been dealt with by the Hon'ble Supreme Court in case of Mst. Shahida Zahir Abbasi and 4 others (supra) as earlier referred by us in the preceding paragraph. Further strength can be sought from a recent judgment passed in Writ Petition No.66 of 2004 by a Division Bench of this Court.

14. The detenu of Criminal Miscellaneous No. 36‑H of 2004 though was not an Army Officer but he has also been arrested under the Army Act, therefore, this case is also covered within the bar as contained in Article 199 (3) of the Constitution.

15. For the foregoing reasons, we find that this Court lacks the jurisdiction to entertain these petitions, hence being not maintainable are dismissed. H.B.T.F‑90/L Petitions dismissed