P L D 2007 Lahore 602 (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel seeks cancellation of bail of respondent, Karim Dad Khan who was granted pre-arrest bail vide order dated 17-1-2007. According to the learned counsel for the petitioner, the learned Additional Sessions Judge passed the impugned order on wrong interpretation of the law that the Army Personnel is to be tried by Army Authorities. According to the learned Addl. Sessions Judge, police should have handed over the custody of the respondent to the army Authorities for investigation instead conducting the same by itself.

2. I have heard the learned counsel for the petitioner, learned Deputy Prosecutor General, Punjab as well as the learned counsel for the respondent and considered their respective arguments.

3. From Use record, it is clear that the petitioner is alleged to have caused injuries with Churri to one Salamat Ullah on the vital parts of his body. The allegation is supported by the M.L.R. of Salamat Ullah which shows as many as five injuries. Injuries Nos. 1 to 4 are caused by sharp edged weapon. The record also shows that a letter was issued from the D.P.O. to the Commanding Officer seeking custody of the respondent for the purpose of investigation, which was not responded by the Commanding Officer. The respondent remained absconder as he failed to join the investigation.

4. Under section 94 of the Army Act, the competent Army Officer can investigate a case of an army personnel if he is implicated in a civil offence; provided such Army Officer makes such demand from the police authorities No such demand or intimation was made by the concerned Army Authorities or the Commanding Officer Of the respondent expressing such intention to investigate or court martial the respondent as envisaged under sections 94, 95 of Army Act, 1952 to be read with rule 168 of the Pakistan Army Rules, 1954. The learned Addl. Sessions Judge held that the Investigating Officer should had made such offer to the Army Authorities himself instead of conducting investigation. It is not a correct construction of section 94 of the Army Act. Therefore, the order of the learned Addl. Sessions Judge is not well-reasoned. As a matter of fact, it is based on misinterpretation of the above mentioned provisions of the Pakistan Army Act, 1952. The impugned order would have been correct, if a demand of investigation had been made by the Commanding Officer or any other competent officer but not fulfilled by the district police, etc.

5. Thus, for the purposes of correct interpretation of .relevant provisions of the Army Act as well as to put things in the right judicial perspective, the order of the learned Addl. Sessions Judge, Mianwali dated 17-1-2007 of granting pre-arrest bail, is recalled.

6. The office is directed to send a copy of this order to the learned Addl. Sessions Judge, Mianwali with a caution to consider the relevant provisions of the law carefully, in future. S.A.K./N-54/L Bail cancelled.