' Khalil Ahmad S.I. U.S.1607 and Muhammad Ilyas S.I. U.S.1663 of Airport Security Force, Islamabad Airport, Rawalpindi were arrested on 16-12-1989 in case F.I.R. No, 41 of 1989, dated 25-11-1989, Police Station F.IA., Rawalpindi under sections 5(2) of P.CA., 1947, 4 and 5 of Explosive Substances Act and 120-B, P.P.C.
2. Ministry of Interior, Government of Pakistan, vide letter dated 22-2-1990 directed that the custody of the aforementioned officials may be transferred to Force Commander, A.S.P., Headquarters Karachi for their Court-martial. On the basis of this order Force Commander Airport Security Force, Karachi directed Lt.-Col. Noor Khan C.S.O. A.S.F. Islamabad Airport to get their custody for trial under the Pakistan Army Act, 1952.
' The F.IA. Had also moved the learned Sessions Judge, Rawalpindi for transfer of the custody of the aforementioned officials under section 549(3), Cr.P.C. But the learned Sessions Judge, Rawalpindi rejected it on the ground that it had not been moved by the authorised officer and observed that if so advised the application may be moved by the authorised officer and Force Commander, Airport Security Force Headquarters, Karachi.
' Lt.-Col. Noor Khan, C.S.O., A.S.F., submitted an application under section 549, Cr.P.C. To the learned Sessions Judge, Rawalpindi for the transfer of their custody to him. The learned Sessions Judge vide his order dated 6-3-1990 turned down the request of the Commander Airport Security Force, Islamabad on the ground that since the offences punishable under the Explosive Substances Act were triable by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 the custody of the aforeinentioned accused could not be handed over to the applicants for their Court-martial.
Hence this revision.
2. It is contended that by virtue of section 7-A (1) of Airport Security Force (Amendment) Ordinance No,XXXV of 1984 every officer and member of the Airport Security Force has been declared to be subject to the Pakistan Army Act, 1952. Subsection (2) of section 7-A of the ibid Ordinance empowers the Force Commander to convene a general Court-martial of the Officers and members of the Force.
' Section 94 of Pakistan Army Act, 1952 indicates which Court shall be competent to try an accused subject to Pakistan Army Act in case of concurrent jurisdiction of Court-martial and Criminal Court.
It is to the following effect:-- "When a Criminal Court and 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."
' Prescribed Officer for the purposes of sections 94 and 95 has been defined by Rule 168 of the Pakistan Army Act Rules, 1954. According to it, prescribed officer shall be an officer having power not less than that of a Brigade or Line of Communication Sub-Area Commander under whom or, the Officer Commanding the station in which, he is serving. Section 7-A(2) of the Airport Security Force (Amendment) Ordinance, 1984 empowers the Force Commander to convene a general Court-martial in respect of all officers and members of the Force.
3. It is contended that in view of the above legal position, the learned Sessions Judge had erred in declining the transfer of custody of the aforementioned persons to the Force Commander for their trial by Court-martial.
4. It is not disputed that at the relevant time Khalil Ahmad and Muhammad Ilyas employees of the Airport Security Force, Islamabad were subject to the Pakistan Army Act, 1952. By reason of section 549, Cr.P.C. The Central Government could make rules consistent with the Code and the Pakistan Army Act and any similar law for the time being in force as to the cases in which persons subject to Military, Naval or Air Force law shall be tried by a Court to which the Code applies or by Court- martial. On 7th November, 1958 the Government of Pakistan in the Ministry of law published Notification No,F24/58-SOL-- making rules as to the cases in which persons subject to the Military, Naval or Air Force law were to be tried by a Court to which the Code of Criminal Procedure applied or by a Court-martial. Rules 1, 2 and 3 are material and are reproduced below:-- "(1) These rules may be called the Criminal Procedure (Military Offenders) Rules, 1958.
(2) Where a person subject to Military, Naval and Air Force Law is brought before a Magistrate, and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act as modified by the Pakistan Navy (Discipline) Act, 1934, or the Air Force Act (44 and 45 Vict. C.58 and 29 and 30 Vict. C. 109) to be tried by a Court-martial, such Magistrate unless he is moved by the competent Military Naval or Air Force authority to proceed against the accused under the Code of Criminal Procedure, 1898, shall before so proceeding give notice to the Commanding Officer of the accused, and until the expiry of a period of five days from the date of service of such notice, shall not--
(a) convict the accused under section 243, acquit him under section 247 or section 248, or hear him in his defence under section 244 of the said Code, or
(b) frame a charge against the accused under section 254 of the said Code, or
(c) make an order committing the accused for trial by the High Court or the Court of Session under section 213 or subsection (1) of section 446 of the said Code, or
(d) transfer the case for enquiry or trial under section 192 of the said Code, or
(e) issue an order under subsection (1) of section 445 of the said Code for the case to be referred to a Bench.
(3) Where within the period of five days mentioned in rule 2 or at any time thereafter before the Magistrate has done any Act or issued any orders referred to in that rule, the Commanding Officer of the accused gives notice to the Magistrate that, in the opinion of competent Military Naval or Air Force authority, as the case may be, the accused should be tried by a Court-martial, the Magistrate shall stay proceedings, and, if the accused is in his power or under his control, shall deliver him, with the statement prescribed by section 549 of the said Code, to the authority specified in the said section."
' A criminal Court and a Court-martial have concurrent jurisdiction in respect of civil offences of persons subject to the Pakistan Army Act. The conflict of jurisdiction is resolved by sections 94 and 95 of the Pakistan Army Act. Under section 94 the prescribed Officer is to decide before which Court the proceedings shall be instituted, and if that officer decides that they shall be instituted before a Court-martial he can direct accordingly. Prescribed Officer' for the purposes of sections 94 and 95 is defined as an Officer having power not less than that of a Brig. Commander or the Officer Commanding the Station in which he is serving. Letter dated 3-3-1990 written by Brig. Force Commander, Airport Security Force, Karachi to Lt.-Col. Noor Khan C.S.O., A.S.F., Islamabad Airport to get the custody of S.I. Khalil Ahmad and Muhammad Ilyas for trial under Pakistan Army Act was, a decision by the Prescribed Officer within the meaning of section 94.
5. The learned Sessions Judge/Judge Special Court, Rawalpindi had refused to hand over the custody of the above-mentioned Officers of the Airport Security Force on the ground that the offence under the Explosive Substances Act, 1908 was exclusively triable by the Special Court established under Suppression of Terrorrist Activities Act, 1975. His view is not legally sustainable because the offences, the above officers are accused of are civil offences within the meaning of section 8(3) of the Pakistan Army Act, 1952. 'Civil Offence' for the purposes of the Pakistan Army Act is defined as an offence which, if committed in Pakistan, would be tribal by a Criminal Court. Under section 59 of the Pakistan Army Act every person subject to the said Act who commits any civil offence is deemed to be guilty of an offence under Military Law and if charged therewith under this section, is liable to be tried subject to the provisions of the said Act for the same by the Court- martial.
The legal position that emerges from the above discussion is that an ordinary Court has no discretion to refuse the handing over of custody of a person subject to the Pakistan Army Act, 1952 when it receives an intimation from the prescribed officer/competent authority that he is to be tried by a Court-martial for a civil offence, as envisaged by section 59, Pakistan Army Act.
7. For the foregoing reasons it is declared that the order, dated 6-3-1990 of the learned Sessions Judge/Judge Special Court, Rawalpindi was incorrect and illegal. In consequence the petition is accepted and the said order is set aside and it is directed that the custody of Khalil Ahmad S.I., U.S.1607 and Muhammad Ilyas S.I., U.S.1663 of Airport Security Force, Islamabad Airport be handed over to Lt.-Col. Noor Khan C.S.O., A.S.F. For their trial under the Pakistan Army Act, I 1952 by Court- martial.