1996 PLP 469 (MLD)

(2) Trial of offences against other laws.‑‑‑All offences, under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring inta, trying or otherwise dealing with such offences.

6. Classes of Criminal Courts.‑‑‑Besides the High Court and the Courts constituted under any law other than this Code for the time being in force there shall be five classes of Criminal Courts in Pakistan, namely:‑‑‑ (i) Courts of Session: (ii) (Presidency Magistrate) Omitted by A.O., 1949, Sched (iii) Magistrates of the first class. , (iv) Magistrates of the second class (v) Magistrates of the third class." Article 199(3) of the Constitution of the Islamic Republic of Pakistan has also been referred by the counsel for the appellant, which read‑ as under:‑‑‑ "199(3).‑‑‑An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those Forces, in‑respect of his terms and conditions of service, in respect of any matter, arising out of his service, or in respect of any action taken in relation to him as a person subject to law." Learned counsel for the applicant has also referred to Rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970, which reads as follows:‑‑‑ "2.‑ Where a person subject to military, naval or air force law, is brought before a Magistrate and charged with an offence for which he is liable, under Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Navy Ordinance, 1961 (XXXV of 1961), or‑the Pakistan Air Force Act, 1953 (VI of 1953) to be tried by a Court Martial, such Magistrate, unless he is moved by the competent military, naval or air force authority, as the case may be, to proceed against the accused under the Code, shall before so proceeding give notice to such authority and, until the expiry of a period of fifteen 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 Code, or (b) frame a charge against the accused under section 254 of the Code, or (c) make an order committing the accused for trial by the High Court or the Court of Session under section 213 of the Code, or (d) transfer the case for enquiry or trial under section 192 of the Code." Learned counsel of the applicant has also placed reliance on Khalil Ahmed and another v. District and Sessions Judge, Rawalpindi and another 1990 PCr.LJ 1744 (Lahore), Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286, (Commander) M.S. Ibrat v. The Commander‑in‑Chief, Royal Pakistan Navy and 2 others PLD 1956 SC (Pak.) 264 and an unreported recent judgment passed by a Division Bench on 26‑9‑1995 in Muhammad Parvez v. Federation of Pakistan and 5 others (Constitutional Petition No.D‑454 of 1995). In the case of Khalil Ahmed and another v. District and Sessions Judge, Rawalpindi and another 1990 PCr.LJ 1744 (Lahore), it was held that, an ordinary Court has no discretion to refuse to hand over custody of a person subject to Pakistan Army Act, 1952. It was held in the case of Muhammad Mushtaq v. Federation ~ of Pakistan 1994 SCMR 2286 that in relation to a person who is member of Armed Forces of Pakistan, even though based on fundamental rights? In (Commander) M.S. K. Ibrat v. The Commander‑in‑Chief, Royal Pakistan Navy and 2 others PLD 1956 SC (Pak.) 264, it was held that under section 549, Cr.P:C. temporarily Magistrate's jurisdiction to try cases of persons subject to military, naval or air force law‑‑‑does not limit powers of military, naval or air force authority to try such persons by Court‑martial. It was held in unreported judgment pf a Division Bench of this Court passed in Muhammad Parvez v. Federation of Pakistan and 5 others (Constitutional Petition No.D‑454 of 1995), in which both the Judges have recorded their separate judgment, but in agreement to each other, as under: ‑‑ " the decision of the Hon'ble Supreme Court is binding on us but it is not binding on the Field General Court Martial. Therefore, the reply of Adjutant General Branch dated 26‑10‑1993 is correct. Article 199(3) does not empower this Court to pass any order in relation to a person who is member of the Armed Forces of Pakistan or in respect of any action taken against him as a member of Armed Forces of Pakistan. Therefore, no order can be passed as requested in this petition because Article 199 restricts the jurisdiction in this respect." It was further held:‑‑‑ "It is not within our powers to give decision that in Islam mercy petition and appeal are barred that the action of Government in not amending the Army Act from the date mentioned by Supreme Court amounts to contravention of Injunction of Islam as laid down in the Holy Qur' an and Sunnah of the Holy Prophet. " I have heard the arguments of both the counsel and have gone through the citations and the law quoted by the learned counsel for the applicant and have also heard Mr. Abdul Ghafoor Mangi, learned Advocate‑General of Sindh. Learned Advocate of Sindh has supported the contentions of the learned counsel for the applicant and has submitted that initially the concerned Magistrate should have enquired from the Military authorities as laid down under section 94 of the Pakistan Army Act, 1952 whether they would like to try the Army Personnel under Court‑martial or under civilian law. This is basic lacuna in the proceedings. Now since the Army authorities have approached the trial Court for the custody of the accused for trial under the Pakistan Army Act, 1952. The trial Court should not have any objection and the custody to the Army authorities for trial. I am of the view that when there is a move from the Military authorities the custody of the armed personnel is to be handed over to the Military authorities, to be tried by‑ them. Here, the learned Sessions Judge has erred as, according to law, if a military person is arrested in civil crime a notice is to be sent within 5 days before the trial and in case no response is given by the Military authorities then alone the trial can be commenced on the civil side and if the demand is made by the Military authorities the same is to be handed over without fail. There was a written request made by Lt.‑Col. Saeed Ahmed Khan, who is the Principal Staff Officer, who has also sworn an affidavit in support of this application, as such the learned Sessions Judge should have allowed the application and should have handed over the custody of the Army personnel to the Military authorities as provided by the law. Challan of this case was accepted by Additional City Magistrate, Malir on 16‑7‑1995. Learned A.C.M. should have given notice to the Army Authorities about the custody and its trial, on the other hand, he has erroneously sent up the case to the Court of Session under section 190(3), Cr.P.C. as such the learned Sessions Judge took the cognizance under section 193, Cr.P.C. Learned Sessions Judge only realised when the present applicant moved application for the trial of the case and custody to the Military Court. I am of the view that Court of Session as envisaged under section 6 of Cr.P.C. which defines classes of criminal Courts also comes within the scope of this section, whereas section 549, Cr.P.C also provides that persons subject to Military, Naval, Air Force shall be tried by a Court in which this Code, applies, or by Court‑martial. It is apparent that the, offence with which the accused is challaned is exclusively triable by the Court of Session, but in this case accused happens to be an Army personnel as such Pakistan Army Act of 1952 is applicable which provides that such persons are to be tried by Military Courts and delivery of such accused is to be handed over to Military authorities. The trial before the Sessions Court becomes eoram non judice when the Army authorities want to try the accused under Army Act. The learned Sessions Judge has relied upon case Ch. Sardar Ali, Advocate v. The Hon'ble Judges of the Lahore High Court, reported in PLD 1956 SC (Pak.)

274. I have carefully examined this case and find that the facts and circumstances are very much distinguishable from the present case as the Army authorities have immediately approached the trial Court for the delivery of the custody for trial of the accused under Army Act and this decision is to be taken by the Army authorities alone under sections 94 and 95 of Pakistan Army Act of 1952, as to where the accused should be tried. , Under these circumstances, I set aside the order dated 31‑8‑1995 passed by the Sessions Judge, Malir in (Crime No. 172 of 1995) Sessions Case No. 265 of 1995 with the direction that the custody of Lance Naik Kabir Ahmed be handed over to the Military authorities, as prayed, for trial. This Criminal Miscellaneous is accordingly disposed of in the above terms. N.H.Q./B‑277/K Order quashed