1. The learned Advocate-General was heard on the points raised by the Court itself in order to assist it so as to reach a correct conclusion in accordance with law. This application under section 491, Cr.
2. P.C. Was made by Mst. Gorina Begum, the applicant against the non-applicants. It is alleged by the applicant that her husband Mulk Aman by name has illegally and improperly been detained by the F.I.U., M'abad based at dojra Fort. Her husband was arrested by the Military personnel on 1st June 1977, on the charge of crossing the Cease-fire Line and at the time he was allegedly caught by them while coming back from Occupied Kashmir, some of the articles were seized from his possession out of which things a gun was described as an unlicensed gun whereas this is a gun with licence vide No. 776/S.D.M., dated 17th December 1975, and renewed upto 31st December 1979.
3. After his arrest, he was taken to a Military post wherefrom a personnel from F.I.U. Was called by the Post Commander and on whose arrival search of the detenu was also made by him and a note depicting Military positions was allegedly recovered from his pocket or trousers, whatever may' be or may not be. On this the detenu was brought to M'abad by F.I.U. Where investigation was started against him on basis of that note. It was reported by F.I.U. That the detenu should be tried by a court-martial and for that some preliminary inquiry for placing the accused before a court-martial is also said to have been held. His court-martial is still awaited and as such there has been an inordinate delay committed by the Prosecuting Agency to place the accused before a court- martial. The detenu is a civilian who, for commission of an alleged offence under the provisions of Official Secrets Act, 1923, has been made subject to Military Act. Whatever evidence was available to F.I.U. Or to some other quarters, it must have been taken by them by now and, according to them, the case was submitted to the higher authorities concerned for convening of a court-martial but no court-martial has yet been convened by the Authority concerned.
4. This Court is to see whether the law has been legally or properly applied in the case of detention of this detenu so far while in Military custody before a Court-martial takes cognizance of the offence alleged. After the arrest of Mulk Aman, detenu, it was the duty of the investigating Agency to place him before a court-martial within 8 days after his committal to Military custody and beyond 8 days there may be no provision in the Military Act for a civilian to be detained in a Military custody without a trial by a court-martial as it has been provided therein in case of a military personnel that if the latter remains in custody for a longer period than 8 days without a court-martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his Commanding Officer in the manner prescribed and such report shall be repeated at intervals of 8 days until a court-martial is assembled or such person is released from such custody. The words 'his Commanding Officer' used here are very significant. At the time a civilian was made subject to Military Act by amendment in the relevant law in relation to commission of an offence of the nature described therein, the procedure concerning his custody. If delayed without a court-martial. Was not amended accordingly. Whatever could be obtained from .t provisions with regard to Military custody of a person accused of an offence subject to Army Act, 1952 as in force in Azad Kashmir, is that 8 days could hardly be available for committal of a civilian to Military custody under section 73 read with section 75 of the Act. That may be also doubtful but by the use of the word 'person', it may be stretched even to a civilian if he could be tried within 8 days from the day of his committal to military custody and not afterwards without a trial. The Pakistan Army Act, 1952 was made applicable in the territory of Azad Kashmir in the year 1957 and the relevant amendments in Pakistan were effected in the year 1967 when the civilians were made subject to it and in Azad Kashmir amendment of this character was made in 1971 in sections 2 and 59 of the Act. After the amendments concerned in Pakistan, the Legislature in Pakistan was conscious to regulate the mode of custody of civilians subject to the Act and to that effect the definition of Commanding Officer in section 8 of the Act was also amended so as to enable him to exercise powers in relation to custody of civilians subjected to Army Act under sections 2 (d) and 59 of the same. But here in Azad Kashmir the Legislature was unable to see this aspect of law and the definition of the Commanding Officer remained the same as it stood before the amendments under which a civilian accused of an offence falling within the ambit of the Official Secrets Act, 1923, is made subject to it in Azad Kashmir. Thus presently, the detention of Mulk Aman is manifestly illegal and improper for the reasons above.
5. On facts I need not say anything so as to prejudice the court-martial if at all it is going to be convened/assembled. That being so, 1 order the immediate release of Mulk Aman and thereby set him at liberty. However, if a court-martial is convened to try Mulk Aman for any of the offences allegedly committed by him under the provision of Official Secrets Act, he can be called by issue of a notice to him so as to stand his trial before a court-martial when and wherever he is required to appear by that Court before it and in case he evades trial, a warrant of arrest can be issued against him by a court-martial to be served upon him through the District Magistrate, M'abad so as to be produced before it to stand his trial and the procedure in relation to the custody or therwise othereof is to be regulated by the trial Court in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.