' This order will dispose of an appeal filed by Iftikhar Ahmad Jamal son of Nazir Ahmad resident of House No, NW-510 Government College Road, Raja Sultan, Rawalpindi from the judgment of the Magistrate First Class, Islamabad dated 18-9-1982 whereby the appellant was tried and convicted under section 11 of the Prohibition (Enforcement of Hald) Order, 1979 and sentenced to 3 years' R. I.
With 20 stripes.
2.. The brief facts are that on the night of 12-10-1981 at about 9 Nazar Hussain A. S. I. (P. W. 7) alongwith Muhammad Siddique, Munir Ahmad and Jamil-ud-Din Constables were on their usual Ghast and when they reached Rawat Bus Adda found a person making noise was hurling abuses and creating disorder. When empowered smell of alcohol was coming out from his mouth and on inquiry he gave his name as Iftikhar Ahmad. He was sent for his medical examination and was accompanied by Munir Ahmad and Jamil-ud-Did Constables. On the receipt of the report from the Doctor he was charged under section 11 of the Prohibition (Enforcement of Hald) Order, 1919 and proper F. I. R. Was drawn, on the same night i,e, 12-10-1981 at 11.
3. After the usual investigation the accused was put to trial where the prosecution produced 7 witnesses in support of its case. The accused in his statement under section 342, Cr. P. C. Denied the charge and pleaded innocence. He was however, convicted and sentenced as stated earlier,
4. The learned counsel for the parties heard. Mr. Sardar Muhammad Ishaq Khan, Advocate for the accused has challenged the findings of the learned trial Court on the legal as well its factual aspects. He submitted that the accused is admittedly an army man and he could only be tried by the Magistrate when the provisions of section 94 of the Army Act have been complied with i,e, when the relevant Prescribed Officer conferred jurisdiction on a Magistrate. The charge under section 11 of the Prohibition Order of 1979, he submitted, was framed against the accused on 16-12-1981 but it was only on 16-3-1982 when the Magistrate made a reference to the Officer Commending of the accused as provided for under section 549, Cr. P. C. And was invested with jurisdiction to try the accused on 21-3-1982. Since no fresh charge was framed against the accused on or after 21-3-1982 and he was proceeded against on the basis of old charge which obviously was without jurisdiction, therefore, the whole trial has vitiated and his client is entitled to acquittal. Reliance was placed on A. I. R. 1945 Mad.
289.
5. As to the factual aspect of this case he submitted that in fact the accused had neither been examined by the Doctor nor his urine, blood and stomach wash were taken for analysis as is alleged by the prosecution and also that none of the witnesses who had taken the accused to the Doctor for medical examination and those who had in fact taken the samples from the Doctor for safe custody in the Malkhana had been produced. These lapses of the part of the prosecution, he submitted are enough to create doubt about the bona fides of prosecution case and on this ground too, his client is entitled to acquittal.
6. As to the first contention I think it has no force. It is not denied that the accused is not guilty of a civil offence and was to be tried as provided for under section 94 of the Pakistan Army Act of 1952.
For the sake of convenience I reproduce the definition of civil offence as given under section 8(3) and section 94 of the said Act :- ' Section 8(3)- civil offence" means an offence which, if committed in Pakistan would be triable by a criminal Court Section 94.-"When a Criminal Court and a court-martial have each jurisdiction in respect of a civil offence, 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 they shall be instituted before a court-martial, to direct that the accused person shall be detained in military custody."
What I gather from the reading of Chapter V of the Army Act which deals with offences is that it speaks of two type of offences which are committed by army personnel. One is offences against the army discipline and the other is civil offences. In case a person subject to the Army Act, is accused of an, offence against the army discipline he is tried by a court-martial. But where an army man is guilty of a civil offence it is not necessary that he should be tried by the Court-martial.
To meet such an eventuality the Army Act under section 94 has conferred concurrent jurisdiction on both the Court-martial and ordinary criminal Court to try a army person guilty of a civil offence.
Section 94 has, however, only given a discretion to the Prescribed Officer to choose a forum for the trial of an accused belonging to the armed forces. This choice has perhaps been given to him to maintain army discipline. Therefore, the question of conferment of any jurisdiction by the Prescribed Officer on a Magistrate does not arise because the competent Magistrate has been so invested by the law itself. I am, therefore,, not inclined to agree with the proposition propounded by the learned counsel' for the accused that a Magistrate assumes jurisdiction only when the Prescribed Officer so decides since both. The Magistrate and the Court-martial have concurrent jurisdiction to try an army personnel guilty of a civil offence. The authority reported in AIR 1945 Mad. 289 relied upon by the learned counsel for the accused is not applicable inasmuch as in the reported case, no reference was made by the Magistrate under section 549, Cr. P. C. Whereas in the instance was such a reference was made.
7. Now let us examine, whether in the given circumstances, the trial of the accused prior to 21-3- 1982 was bad in law. The accused was apprehended by the Ilaqa police on 12-10-1981 and after investigation was put to trial on 16-12-1981 when he was charged under section 11 of the Prohibition Order of 1979. In the meantime he was enlarged on bail on 4-2-1982 and the case remained pending in the Court of Magistrate for one reason or the other. The perusal of the record shows that it was on 6.3-1982 when for the first time the mother of the accused submitted an application to the court of the Magistrate v ho was trying the case that her son was a deserter from the army but has rejoined the army and therefore, he should be exempted from appearance in the Court. No sooner the Magistrate received the said application he made a reference to the Commanding Officer as required under section 549, Cr. P. C. This letter is dated 16th March, 1982 addressed to the Commanding Officer I Basic Trg Bn E. M. E. Bang (Mangla Cantt) which is as follows :- ' Subject : Case against Iftikhar Ahmad Jamal son of Nazir Ahmad case F. I. R. No, 111 dated 12-10-1981 under section 11 of Prohibition of Hald (Enforcement of Hald) Order 1979 of P. S. Sihala Islamabad Rect Gun Ftr No, 2983014 Iftikhar Ahmad Jamal is required as an accused in the subject case. You are requested to clarify whether the case will be tried by the Court Martial or by this Court, as required under section 549, Cr. P. C. An early reply in this regard is requested."
' In response to the above letter the Officer Commanding vide his letter dated 21-3-1982 replied as under :- ' Subject : Case against Iftikhar Ahmad Jamal son of Nazir Ahmad case F. I. R. No, 111 dated 12-10-1981 under section 11 Prohibition of Hald (Enforcement of Hald) Order 1979. Of P. S. Sihala Islamabad Your Itf. No, 104/ / /O. M. Dated 16th March, 1982 refers.
' No, 2983014 Rect Gun Ftr Iftikhar Ahmad Jamal can be produced for trial as and when required by your Court. The individual is undergoing trg in this be, hence it is requested that the dates on which the individual is required may be intimated to this office."
It was then that the rest of the proceedings such as the recording of the evidence of the witnesses of the prosecution and the statement of the accused were done and the judgment pronounced.
The perusal of the record of the investigation and the Court proceeding prior to 6-3-1982 shows that during all this period the accused had not given even inkling that he was an army man. In all probability the accused at the time of occurrence was a deserter from the army, therefore his silence about the disclosure of his correct identity is quiet understandable. In the absence of such information, B how on earth, the investigation agency or for that matter the Court could have proceeded under the provision of section 549, Cr. P. C. Since the Magistrate under section 94 of the Army Act had the jurisdiction, therefore, under the circumstances explained above he was not obliged to frame a fresn charge, more so, when the accused had failed to bring anything on the record to show that he has been prejudiced in his trial on the basis of the charge framed against him on 16-12-1981. I, therefore, hold that the trial of the accused by the Magistrate is neither without jurisdiction nor bad in law.
8. As for the factual aspect of the case is concerned I do not find any shortcomings in the case of the prosecution. Besides Mazhar Iqbal (P. W. 5) and Bashir Ahmad (P. W. 6) the prosecution has pressed into service the evidence of Doctor Ghulam Mahboob (P. W. 1) and the report of the Chemical Examiner which is Exh. P. G. Mazhar Iqbal and Bashir Ahmad are independent witnesses.
Both of them had seen the accused at the crucial time hurling abuses and behaving in disorderly manner. They have stated at the trial that the accused was emitting smell of alcohol from his mouth. There is nothing on the record even to suggest that these witnesses were deposing against the accused because of some enmity. The occurrence is alleged to have taken place at 9-00 p. m.
And the accused was taken to the Polyclinic Hospital Islamabad where he was examined by Dr. Ghulam Mahboob (P. W. 1) at 10 p. m. According to Dr. Ghulam Mahboob at the time of examination the accused was making noise, was irritant, unsteady and foul smell was coming from his mouth.
His tentative opinion was that the accused was drunk. He took his blood; urine and stomach wash and sent the same to the Chemical Examiner for his opinion who vide Exh. P. G. Confirmed that alcohol is detected in all the above articles. Though there are certain lapses in the case on the part of the prosecution, for instance Muzafar Iqbal and Jamil-ud-Din constables who had taken the accused for medical examination to the Doctor have not been produced at the trial, and while recording the statement of the accused under section 342, Cr. P. C. The Court did not question the accused about his medical examination on the night of occurrence or the taking of his blood, urine and stomach wash (which this Court did at the time of hearing of the appeal on 17-4-1983 and to which the accused replied in negative), yet I do not find them very material because again nothing has been brought on the record to show that the accused has been falsely implicated in this case.
The contention of the learned counsel that the charge framed against the accused was vague and did not fulfil the requirements of section 222(1), Cr. P. C. Which has resulted in miscarriage of justice would also not prevail with me because the charge framed against the accused carries precisely all the relevant material highlighting the commission of the offence.
9. In view of the above, I hold that the conviction of the accused under section 11 of the Prohibition Order is well-founded and the same is maintained. As to the quantum of sentence, I am informed by the learned counsel for the accused that the accused has been dismissed from service and prayed for the reduction of the sentence, I think this prayer seems reasonable and therefore, I reduce his sentence of imprisonment one from 3 years' R. I. To 2 years' R. J. The sentence of lashes is also reduced to 10. He is also given the benefit of section 382(b), Cr. P. C. With the above modification the appeal stands dismissed.