1. SARDAR MUHAMMAD SHARIF KHAN, J.-These are two applications made by Mst. Misar Jan and Zaid Ullah, under section 491, Cr. P. C. Seeking release of two persons, namely Muhammad Rafique and Muhammad Farooq who are respectively the brother and son of the applicants. These applications are inter-connected and have also identical points to be dealt with by the Court, therefore, they are taken together for disposal. This is for the second time that these applications are moved. Prior to this, tw3 applications under section 491, Cr. P. C. Were filed by Hayat Mir and geshman Jan to the Court for setting the detenus at liberty but they were refused freedom by the Court comprising a Single Bench.
2. The learned counsel for the parties were heard and perusal of the records of the cases as well as that of the relevant law was accordingly made. We need not repeat the ruthless allegations detailed in the applica- tions against some of the military personnel as also the facts narrated by the detaining authorities. We are only to see the nature of the detention in light of law allegedly governing the arrest of the accused persons who are subject to the Military Act, that is to say, whether their detention is in accordance with law or not? The contention of the learned counsel for the applicants is that under section 4, Right 2 (2) of the Interim Constitution Act, 1974, the persons arrested by the Military authorities for the alleged offence having been committed were to be produced before a Magistrate under whose authority their detention could be legal one because in presence of this section, the Army Act will be of no avail to the Military Officers detaining the persons for whose release the provisions of section 491, Cr. P. C. Are invoked. That being so, according to him, the detention in question is illegal and improper. This contention of the learned counsel for the detenus would not have held water if, there had been an adequate provision in the Army Act in the shape as in force in Azad K.Ashmir for a person subject to this Act having been charged with any offence so as to be taken into Military custody. After having given earnest thought to the case, we find that the Pakistan Army Act, 1952, as in force in Azad Kashmir, is short of a full provision thereby regulating the detention of a civilian person accused of an offence subject to Army Act. Section 2 of the Pakistan Army Act was amended in 1967, by the Law-makers in Pakistan and subsection (d) was introduced and added to it so as to bring a civilian person in subjection to the Army Act. After doing so, section 8 of the. Act was also amended in relation to the definition of the Commanding Officer who is the authority under the Army Act to deal with the civilian accused subject to the Army Act in relation to their remand to Military custody. This amendment of section 8 read with sections 73 and 75 of the Army Act, does authorise the Officer specified therein to remand the accused, person who is a civilian subject to Army Act into the Military custody in Pakistan but in Azad Kashmir, though the law-makers in pursuance of the amended law incorporated in sections 2 and 59 of the Act amended these sections accordingly, yet failed to amend section 8 relating to the definition of Commanding Officer so as to enable section 75 of the Act to authorise a Commanding Officer concerned to process the custody of a civilian accused of an offence under section 2(d) of the Act. There is a case entitled "Mst. Gorina Begum v. The State and others", wherein it was held by this Court last year making it known to the authorities concerned that they have no authority to take a civilian person, though subject to Army Act, into Military custody beyond a period of 24 hours or 8 days at the most, as the case may be, until an authority is obtained by an amendment in the Army Act as in force in Azad Kashmir, as was done in Pakistan, as indicated above. This side of the case was not brought to the notice of the learned Single Judge who previously dismissed the matter in issue with regard to the illegal detention of the detenus named above. That being so, these applications under section 491. Cr. P. C. For the second time are held to be competent. As the amendment could not relatively be effected in the Army Act by the law- makers in Azad Kashmir, there was course open to the Military authorities to obtain remand of civilian person subject to the Army Act, under section 4, Right (2) of the Interim Constitution Act, 1974 which is the Supreme Law of th land. If they could have resorted to section 164, Cr. P. C. For securin confessions of the accused persons as was done in these cases, they could have also expediently gone to the Magistrate to have his authority to detain the accused persons into the Military Custody in accordance with law for a reasonable time till a Court-Martial is assembled for the trial of the accued persons in the instant cases. That being so, we are of the view that the detention of Muhammad Rafique and Muhammad Farooq is illegal and improper and so they need immediate release which is hereby ordered accordingly.
3. However, it may be noted that there will be no bar to the trial of the accused persons by a court- martial of a competent jurisdiction. By issue of process in accordance with law, they (accused) can .:be brought before the court-martial if an occasion so arises. For the reasons above, these applications stand accepted and resultantly the immediate release of Muhammad Rafique and Muhammad Farooq detenus is ordered to the authorities concerned.