' MUHAMMAD IQBAL KALHORO, J.---The issue brought before us by petitioner through the captioned petitions is alleged detention of his son namely Shohaib Aslam by respondent No.1 (Base Commander PAF Base Korangi, Karachi hereinafter as respondent) pursuant to an FIR bearing crime No. 164/2014 registered against him for the offence under section 302, P.P.C. At police station Ibrahim Hyderi, Karachi and his subsequent trial under provisions of the Pakistan Air Force Act, 1953 (hereinafter as Act, 1953).
2. Petitioner has alleged that his above named son is serving as Corporal Technician in Pakistan Air Force, Base Karachi. He has been falsely involved in the murder of his wife in above FIR and is being kept illegally without being produced before any Court, since 4.7.2014. Neither respondent is allowing the petitioner and other relatives to meet him nor is he permitting any counsel to represent him in the trial. The deceased was wife of his son who was civilian person hence his son can only be tried by the Sessions Court and not by any Court Martial. Over and above, the petitioner has also sought quashing of the above FIR.
3. All respondents in their para-wise comments have however controverted the averments of the petition and have referred to numerous provisions of Act, 1953 which authorize them to arrest the petitioner's son and hold a trial against him. They have also filed all the necessary correspondence in support of their aforementioned claim. They have denied the allegations that petitioner or any of his relatives are not being allowed to see accused and have further stated that accused would be given proper opportunity to nominate a defending counsel of his choice in the trial.
4. Mr. Umer Farooq Khan counsel for the petitioner reiterated in his arguments the points taken by him in the petition and referred to section 72 of the Act, 1953 to establish that alleged arrest of petitioner's son and his subsequent trial were illegal, coram non judice and void. He was of the view that the kind of duty/service the petitioner's son was performing at the time of alleged offence did not come within the definition of 'active service' in terms of section 72 of the Act, 1953.
5. Mr. Azizullah Burioro, DAG and Mr. Zafar Ahmed Khan Addl. P.G. Presented entirely different viewpoint in this regard. They referred to section 123 of the Act, 1953 and the case of Amanullah v.
Station House Officer and others (PLD 2012 Lahore 194) to stress that respondent had sufficient authority to conduct criminal trial against the petitioner's son and no illegality was there which needed interference by this Court.
6. We heard them and with their assistance examined the entire record and the cited case law.
Contents of the FIR registered against the petitioner's son show that he is specifically nominated therein by the deceased's brother; therefore there is no question of quashing the FIR prematurely unless he undergoes entire trial. Consequently in our view the controversy can be narrowed down here to a single question, that is, whether the petitioner's son was on active service when he allegedly committed the offence. If so, his detention and trial could not be termed illegal. The question has direct nexus with the mandate postulated by respondent to hold accused in custody and conduct trial against him under the provisions of Act, 1953. Admittedly the accused was serving in Pakistan Air Force at the time he was apprehended by PAF authorities in pursuance of above mentioned FIR. In para 2 of both the petitions, it has been stated that accused was serving under respondents Nos.1 and 2 (Base Commander PAF Karachi and Chief of Air Staff, Islamabad).
Section 72 of Act, 1953 referred to by learned defense counsel in support of his contentions reads as under:
72. Civil offences not triable by courts-martial. A person subject to this Act who commits an offence of murder against a person not subject to Military, Naval or Air Force law, or of culpable homicide not amounting to murder against such a person, or of (zina or zina-bil-jabar) in relation to such person, shall not be tried by a court-martial, unless he commits any of the said offences:-
(a) while on active service, or
(b) at any place outside Pakistan, or
(c) at a frontier post specified by the [Federal Government] by notification in this behalf.
From a bare reading of above provision of law, the position which emerges clearly is that jurisdiction of the court-martial to try an offence in terms of provisions of Act, 1953 would hold sway where the accused, who is subject to the above law, is in active service at the time of commission of offence or he has committed the alleged offence at any place outside Pakistan or he commits the offence at a frontier post so specified by the Federal Government. The impression that learned defense counsel gave and we so gathered from his arguments was his attempt to convince us that nature of job the accused was performing being corporal technician did not come within the parameters of 'active service' and more so since at the time of alleged offence the PAF were not engaged in operations, or were not involved in any full-fledged war against enemy force or carrying out any operations in an area wholly or partly under occupation of enemy, the Act, 1953 was not attracted and offence, if any, was committed by the accused it should be tried by the Sessions Court having jurisdiction. We respectfully do not subscribe to such a view, for under definitions clause under section 4(i)(a) of the Act, 1953 'active service' as applied to a person subject to the Act, 1953 would mean such a person who is attached to, or forms part of a force which is engaged in operations against an enemy, or (b) is engaged in Air Force Operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy or (c) is attached to, or forms part of, a force which is in military occupation of any foreign country. 'A person either attached to or part of a force engaged in operations against an enemy' cannot be bracketed to only overt operations against enemy nor does the context provided under the law so require. The force is engaged in operations would mean and include both the overt and covert operations against enemy and the person serving in the force would equally be considered attached to or forming part of the force which is either engaged in any open or secret operation against enemy.
Whether there was any 'such operation going on at the relevant time cannot be gone into by us while exercising jurisdiction conferred upon us under Article 199 of the Constitution. That appears to be a question of factual nature that can only be attended to when required evidence is recorded and somehow, in a our view, it does not infringe fundamental rights of the petitioner in any way particularly in the context that the accused was attached to and part of the PAF is not denied at any stage.
7. After having held above discussion, we would like to mention that that under Article 199(3) this Court cannot interfere in the matter of a person who is subjected to Pakistan Military laws being a member of the Armed Forces. The Honorable Supreme Court has held such a view in the case of Muhammad Mushtaq v. Federation of Pakistan reported in 1994 SCMR 2286 and refused leave to appeal against the order of learned Peshawar High Court dismissing the writ petition in the similar background. Under the facts and circumstances we would not like to dig deep into controversial questions of facts involved here and/or assume jurisdiction which is not vested upon us.
Resultantly, the instant petitions are found to be meritless on the issues being agitated and are dismissed accordingly along with pending application(s). Before parting with this order we must observe here that respondent shall provide a fair opportunity to the son of the petitioner to defend himself in compliance with Article 10-A of the Constitution.