P L D 1959 (W (PLP)

KAIKAUS, J.‑Ali Sher Khan the petitioner in this writ petition was recruited as a sepoy in the Indian Army on 15th December 1930 and subsequently became a Senior Junior Commissioned Officer in the Pakistan Army. On 16th January 1956 he, having been tried by a Court Martial on three charges, was acquitted of the first charge and convicted on the second and third charges. The second charge was one sunder section 55 of the Army Act which section makes any act to the prejudice of good order arid military discipline an offence and the third charge was one under section 354, P. P. C. The punishment awarded on these two charges was three years' rigorous imprisonment and dismissal from service. On appeal the sentence of imprisonment was reduced to two years' rigorous imprisonment. In this petition the order of the Court Martial is attacked on the following grounds:‑ (1) that no enquiry was held under rule 13 (1) of the Rules framed under the Army Act, (2) that no evidence had been recorded under rule 13 (3) (iii), and (3) that the charge under section 354, P. P. C. had been sum marily dismissed by the Commanding Officer under Rule 13 (3) and such an order is a bar to trial under section 23 of the Army Act. Before considering these objections it is necessary to state some facts. One Zaman Khan, a sepoy had complained against the conduct of the petitioner to the Commanding Officer Mr. S. R. Khan in July 1955. The complaint was that the peti tioner had entered his family quarter in his absence and had mis behaved with his wife. Before Mr. S. R. Khan could take any steps on the complaint of Zaman Khan he was murdered. On this an enquiry was held against the petitioner in respect of the charge of abetting the murder. This enquired is the one which is preliminary to a trial before the court martial. After the enquire the petitioner was served with three charge sweets. The first was of abetment of murder and the second, which was in the alter native to the first charge, was of neglect of duty. The third charge was under section 354, P. P. C. for molesting the wife of Zamar Khan. At the enquiry the statements had been recorded only in respect of the first charge. The petitioner was tried, however, on all the three charges. With respect to the evidence relating to the second and third charges the provisions of rule 118 were observed and the petitioner was allowed an adjournment so as to prepare himself for cross‑examination of the witnesses who made state ments in support of charges 2 and

3. As regards the first objection of the petitioner we reproduce below rules 13 and 14 :‑ "

13. Disposal of charge against a person other than officer or adjournment for taking down the summary of evidence.‑ (1) Every charge against a person subject to the Act, other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross examine any witness against him, and to call any witnesses and to make any state law in his defence. (2) The commanding officer shall dismiss a charge brought before him if in his opinion the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he thinks that the charge ought not to be proceeded with. (3) At the conclusion of the hearing of a charge, if the com manding officer is of the opinion that the charge ought to be proceeded with, he shall, without unnecessary delay, either‑‑ (i) dispose of the case summarily ; or (ii) refer the case to the proper military authority ; or (iii) adjourn the case for the purpose of having the evidence reduced to writing ; or (iv) if the accused is under the rank of warrant officer, order his trial by summary court martial Provided that the commanding officer shall not order trial by summary court martial without reference to the officer empo wered to convene a District court martial or on active service, a field general court martial for the trial of the alleged offender unless either‑ (a) the offence is one which he can try by summary court martial without reference to that officer or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and tearing of the accused before the commanding officer or such officer as he directs. (5) The accused may put questions in cross‑examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down. (6) The evidence of each witness when taken down, as pro vided in sub‑rules (4) and (5), shall be read over to him and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed. After all the evidence against the accused has been given the accused shall be asked: "Do you wish to make any statement ? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence". Any statement thereupon made by the accused shall be taken down and read out to him. (7) The evidence of the witnesses and the statement, if any, of the accused shall be recorded in the English language. If the witness or the accused, as the case may be, does not understand English, the evidence or statement, as recorded, shall be inter preted to him in a language which he understands. (8) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of the service or on other grounds (including expense and the loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (9) Any witness who is not subject to the Act, or to naval or military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form specified in the Third Appendix to these rules.

14. Remand of accused.‑(1) The evidence and statement (if any) taken down in writing in pursuance of rule 13 (in these rules referred to as the summary of evidence) shall be considered by the commanding officer who thereupon shall‑ (i) either remand the accused for trial by court martial ; or (ii) refer the case to the proper superior military authority ; or (iii) if he thinks it desirable, re‑hear the case and dispose of it summarily. (2) If the accused is remanded for trial by court martial, the commanding officer shall without unnecessary delay either assemble a summary court martial (after referring to the officer empowered to convene a district court martial or, on active service, a field general court martial, when such reference is necessary) or apply to the proper military authority to convene a court martial, as the case may be. Any delay in the reference to superior military authority should not ordinarily exceed forty- eight hours." In accordance with rule 13 when a complaint is received by a commanding officer he first makes up his mind as to whether he will proceed with the case at all. If he finds that he should proceed with it then he can either dispose of the case summarily himself or he can.‑refer it to a proper military authority or he can adjourn the case for the purpose of having the evidence reduced to writing. In the case of a person below the rank of a warrant officer he may direct the holding of a summary court martial. In a case where he directs the recording of evidence he is to decide in accordance with rule 14 after the evidence has been recorded whether the accused would be tried by court martial or whether he would himself dispose of the case summarily or whether he would just refer the matter to the proper military authority. It will be observed that the recording of evidence leads to a trial by court martial and considering that the title of the Chapter in which rules 13 and 14 occur is "Investigation of Charges and Remands for Trial" and that there is no other procedure provided in the rules which are apparently exhaustive for the commencement of a trial by court martial it is a reasonable inference that in order that a person may be tried by a court martial the proper procedure is that there should be first an enquiry and the recording of evidence in accordance with rule

13. It is also to be observed that the accused is to be provided with the statements of the witnesses. In respect of charges 2 and 3 on which the petitioner has been convicted there was no enquiry and there was no recording of evidence and therefore the rules have not been complied with but it is urged that there has been no prejudice because the provisions of rule 118 had been complied with. Rule 118 runs as under:‑ "

118. Calling of witnesses whose evidence is not contained in the summary. If the prosecutor or, in the case of a summary court martial, the Court intends to call a witness whose evidence is not contained in any summary or abstract of evidence given to the accused, notice of intention shall be given to the accused a reasonable time before the witness is called, together with an abstract of his proposed evidence. If such witness is called without such notice or abstract having been given, the Court shall, if the accused so desire it, either adjourn after taking the evidence, or allow the cross‑examination of such witness to be postponed, and the Court shall inform the accused of his right to demand such adjournment or postponement." It is not denied on behalf of the petitioner that this rule was complied with. I asked learned counsel for the petitioner whether under the circumstances there was any prejudice to the petitioner. The only prejudice that he could point out was that the petitioner had only one opportunity of cross‑examination whereas in accor dance with the rules he should have two. This by itself does not imply any prejudice. All that is needed is that the accused person should have sufficient opportunity to defend himself. If he is granted sufficient adjournment after the statements of witnesses, have been record, 7d with respect to the charges for which there was no enquiry there is no reason why he should in any way be preju diced. There is no force therefore in the first two objections raised by the petitioner. The third objection is incorrect on facts. There is no order of summary dismissal by Mr. S. R. Khan the Commanding Officer. Learned counsel says such an order is implied because Mr. S. R. Khan did not take any action. But it is conceded that he was killed before he could take any action. The petitioner has already served out his sentence. This petition has been filed mainly for the purpose of challenging the dismissal of the petitioner. As held by a Full Bench of the West Pakistan High Court (Lahore Bench) Tahmas v. Central Government of Pakistan (P L D1956 Lah.871), the power of the Central Government to dismiss or remove Army Officers is not subject to control by the Courts. This writ petition is dismissed with costs. A. H. Petition dismissed.