MEHMOOD MAQBOOL BAJWA, J. - Legality and validity of order dated 11.1.2011 recorded by learned Sessions Judge, Khushab has been called in question by the petitioner being complainant of case F.I.R. No. 50 of 2010 registered under Section 302 read with Section 109 of the Pakistan Penal Code, 1860, whereby case of Abid Hussain, respondent No. 2, nominated accused was separated being army personnel in view of intimation sent to the learned Trial Court vide letter No. Tel. GHQ.30425, KCP/16/10/PS-2(A), dated 14.12.2010 by the competent Authority showing intention to try the said accused by the Court Martial.
2. Heard.
Learned counsel for the petitioner while placing reliance upon letter No. Tel. MIL. 2153, 4501/11/R/A/4U027, dated 28th March, 2009 argued that as per policy letter, issued at the instance of Chief of Staff, Pakistan Army as and when case is registered against individual on leave, his custody be handed over to civil police/Court, whenever asked and as such reference sent by learned Sessions Judge, Khushab to Military authorities inquiring the choice with reference to forum of trial and later on vide impugned order issuing direction to local police to submit challan against respondent No. 2 before Military authorities is legally not sustainable. Seeking help from the Ratio of "Abdur Rashid v. The State" (PLD 1986 Federal Shariat Court 290), the learned counsel for the petitioner went on saying that respondent No. 2 though army personnel cannot be tried by Military Court.
The learned A.A.G, while defending the impugned order maintained that since respondent No. 2 is an army personnel, therefore, the learned Trial Court rightly made reference to the military authority in order to know choice of competent authority. Further argued that policy letter referred to cannot over ride the provisions of the Pakistan Army Act, 1952, Act XXXIX of 1952. (Hereinafter called Act).
3. The respondent No. 2 is an army personnel and as such is subject to the provisions of The Army Act, 1952, in view of Section 2 of the Act.
Section 8(11) of the Act defines "offence" which means any at or omission punishable under the Act and includes a civil offence as defined in the Act itself which expression has been defined Section 2(3) which reads as follow:- "Civil offence" means an offence which, if committed in Pakistan, would be triable by a Criminal Court."
Perusal of the scheme of Act suggests that offences have been classified into two categories with reference to person subject of the Act Chapter V of the Act (Part II) deals with different kinds of offences providing punishment in Chapter VI (Part II). Classification of offences have been made with reference to forum of trial.
4. Section 59(1) of the Act (Part II) provides that any person subject to the Army Act, 1952 who commits civil offence shall be guilty of offence under the Act but subject to the provision of sub- section (2). Since respondent No. 2 is on active service, therefore, offence of murder though civil offence shall be treated as an offence under the Army Act, 1952. Though all the offences provided in Chapter V are triable by Courts Martial but an exception has been provided with reference to civil offences as envisaged by Section 94 of The Act, according to which concurrent jurisdiction has been vested in Criminal Court and Court Martial in which eventuality, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and if that officer decides that accused shall be tried before a Court Martial, then the accused shall be detained in military custody.
The position which emerges from the examination of above-referred provision is that Court Martial and Criminal Court got concurrent jurisdiction in respect of civil offences. Section 94 of the Act provides mechanism in order to confer jurisdiction upon either Court. Use of expression "It shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted" clearly suggests that it is for the Army authority to determine the forum of trial and not by ordinary Criminal Court, In view of the matter, reference sent by learned Trial Court to the J.A.G.
Branch of Pakistan Army, the reference of which has been made in the order dated 3.12.2010 is hardly subject to any exception since it was a legal compulsion and in view of intimation sent by the J.A.G. Branch proceedings have to be instituted in Court Martial in accordance with Section 94 of The Pakistan Army Act, 1952.
With this legal background, now the instruction/policy letter relied upon at the instance of petitioner is examined. Para (2) of letter Tel. MIL. 2153, 4501/11/R/A/4UO27, dated 28th March, 2009, which is relevant is re-produced for ready reference:- "2. It is once again reiterated that any indl who commits offence during leave and F.I.R, is registered against them be handed over to civ police whenever asked by civil police/Court."
5. The learned counsel for the petitioner contended with vehemence that in view of the instructions trial has to be conducted by ordinary Criminal Court. Reliance upon instruction, if any, at the stance of petitioner is misconceived for two fold reasons.
Firstly, instructions, if any, cannot override the provisions of Section 94 of The Army Act, 1952 explaining the procedure in an unambiguous manner. Secondly, the instructions by no stretch of imagination suggest ouster of jurisdiction of Court Martial.
Perusal of para (2) re-produced clearly suggests that direction has been issued to handover custody of army individual whenever asked by civil police/Court. Admittedly, it is not the case of the petitioner that either local police or Court required the custody of respondent No. 2 for trial.
Rather the learned Trial Court itself sent reference to the competent authority to show intention about forum of trial which is in accord with Section 94 of The Act.
Reference sent by learned Trial Court was also in consonance with the provision Of Section 549 of the Code of Criminal Procedure, 1898.
6. I have gone through the Rule enunciated in Abdur Rashid v. The State" (PLD 1986 Federal Shariat Court 290) relied upon by learned counsel for. The petitioner, perusal of the facts of report suggests that appellant who was an army personnel was tried and convicted by ordinary Criminal Court under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII) of 1979. One of the plea agitated at the instance of appellant while pleading non-compliance of the provisions of Section 94 of The Pakistan Army Act, 1952 and Section 549 of The Code of Criminal Procedure, 1898 was that he being army personnel was required to be tried by Court Martial and not by ordinary Criminal Court proposition of law in the peculiar circumstances of the case though can not be questioned but cannot advance plea of petitioner due to distinguishable facts.
Repelling the argument and making reference to Sections 3 and 20 of Ordinance VII of 1979, it was held that the provisions of Ordinance got overriding effects on all other laws including the Army Act and application of the Code of Criminal Procedure is subject to Section 20 of the Ordinance VII of 1979.
8. Pursuant to above discussion, settled legal position is that as and when army personnel has committed a "civil offence", the Trial Court or the Magistrate are required to send reference under Section 549 of The Code of Criminal Procedure, 1898 read with Section 94 of The Pakistan Army Act, 1952 and if the prescribed officer formulates opinion institution of proceedings before a Court Martial, then ordinary Criminal Court would not be competent to try such army individual.
Reference sent by learned Trial Court was legal compulsion within the meaning of Section 549 of the Code of Criminal Procedure, 1898 read with Section 94 of the Pakistan Army Act, 1952 and in view of decision of the prescribed officer, order impugned separating the trial of respondent No. 2 is legally justified and as such petition being devoid of force is dismissed.