MUNAWAR ELAHEE RANA, J.-By an order dated 19-12-1975, passed by` Brigadier Sajjad Hussain, Commander, Headquarters 3 Independent' Armoured Brigade Group, Lahore Cantonment, addressed to the Area Magistrate, Cantonment, Lahore two persons, subject to the Pakistan Army Act, 1952, viz. Sowar (Clerk) Farzand Ali and Lance Dafadar (Clerk) Saeed Ahmad, hereinafter called the accused, were claimed for trial under section 94 of the Army Act. This order has been challenged by Allah Ditta (father of Farzand Ali) and Muhammad Sbafi (brother of Saeed Ahmad) on their behalf through Writ Petitions Nos. 51 of 1976 and 52 of 1976 respectively. This order will dispose of both these writ petitions.
2. The facts which form the background are that on 11-12-1975 the complainant, Sepoy Muhammad Nasrullah, No. 6866310, son of Chaudhri Ismat, Armoured Brigade Group, proceeded to his night duty, leaving behind his wife, Mst. Ishrat Begum in his Quarter No. 1/50, Gujrat Lines, Lahore Cantonment. The next morning when he returned home at about 8.00 a.m.,, he found her lying dead with a Check Lacha around her neck, with blood having oozed out of her mouth, two front teeth broken and her--shalwar untied. He lodged an F. I. R. No. 279/75 with Police Station South Cantt. Lahore, stating that some brute had perpetrated this horrible deed and he believed that Saeed Ahmad and Farzand Ali were responsible for it, because they had misbehaved with her two or three days earlier. A case under section 302/376, P. P. C. Was accordingly registered against the accused persons.
3. The petitioners allege that the offence was not taken cognizance of by the Military authorities and the accused were handed over to the local Police, which proceeded with the investigation of the case and after c completing necessary formalities, the accused were remanded to the judicial ,custody in the Camp Jail, Lahore. The Ilaqa Magistrate consequently adjourned the case to 6-1- 1976, awaiting the submission of the challan by -the local Police. The petitioners further state that on 6-1-1976 when they went to the Court of the Magistrate to watch the proceedings, the accused were not brought before him. On enquiry it was found that the case was -withdrawn by the Military authorities for trial before a Court Martial. The inspection of the file revealed that the Ilaqa Magistrate, vide his order dated 1-1-1976, permitted the withdrawal of the case in response to the impugned order issued on 19-12-1975 by the aforementioned Brigadier ---Commander Sajjad Hussain. Hence these writ petitions.
4. Both the writ petitions are directed against the same order on similar grounds, relating to the same incident, and are, therefore, taken up together.
5. A reply has also been submitted by the Brigadier Commander Sajjad Hussain, 3 Independent Armoured Brigade Group, stating that he was the prescribed officer for exercising discretion of trial of the military . Accused persons under section 94 of the Pakistan Army Act, read with rule 168.
Furthermore, Major Zafar Islam, who handed over the .. Custody of the accused to the Police authorities, was not the prescribed officer, nor his action to allow the accused to be handed over to the Police custody in any way implied the exercising of option of trial either by civil or by Army authorities. The true position was that when the case was . Examined for the first time by him, he exercised the option vested in him by the law, for trial of the accused by the Army under the Pakistan Army Act.
6. The order dated 19-12-1975, passed by Brigadier Commander Sajjad .Hussain is challenged on two main grounds
(a) That the accused could not be tried under the provisions of the Army Act, for the offences allegedly committed by them and 1
(b) that the accused having once been handed over for trial to the civil authorities could not thereafter be claimed for trial by the Courts Martial.
7. In support of the first contention reference is made to section 59(2) . Of the Army Act, which is in the following terms "59. Civil offences.-(1) . . . . . ,
(2) A person subject to this Act who commits an offence of murder against a person not subject to this Act or to the Indian Air Force Act, 1932 or the Pakistan Air Force Act, 1953, or to the Pakistan Navy Ordinance, 1961, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under this Act unless he commits any of the said offence,-
(a) while on active service, or
(6) at any place outside Pakistan, or
(c) at a faontier post specified by the Federal Government by notification m this behalf."
8. It is not disputed that the accused were persons subject to the -;provisions of the Pakistan Army Act, but at the same time the deceased lady was not. Under section 59(2) of the said Act a person subject to the Act, who commits an offence of murder against a person not subject to the ,Act, or of a culpable homicide not amounting to murder against such a person, or of rape in relation to such a person shall not be deemed to be guilty of an offence against the said Act and shall not be dealt with there--under, unless he commits any of the said offences (a) while on active service, (b) at any place outside Pakistan or (c) at a frontier post specified by the Federal Government by notification in this behalf.
9. "Active Service", as applied to a person subject to this Act, is defined under section 8(1) of the Act, to mean the time during which such person is attached to, or forms part of a force which is engaged in opera--tions against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, ,or is attached to or forms part of a force which is in military occupation of a foreign country. According to the learned counsel for the petitioners the offences attributed to the accused were civil offences and committed against a person not subject to the Act. Accordingly, the persons subject to the Pakistan Army Act, 1952, like the accused, could only be dealt with under the Act, if they were to be on "active service." The position in fact was that they were posted in a peaceful area within the country and were .Neither engaged against an enemy nor in military operations, nor were in line .Of march to a place wholly or partly occupied by an enemy. The offences could, therefore, be tried only by the ordinary criminal Courts of the land.
10. The Army Act, however, has conferred powers on the Federal Government, by section 7 of the Act, to direct by notification, notwithstanding anything contained in clause (1) of section 8 of the Act, that any person or .Class of persons subject thereto, shall, with reference to any area in which he/they may be serving, or with reference to all or any of the provisions of this Act, or of any other law for the time being in force, be deemed to be .On "active service" within the meaning of this Act.
Under this section the Federal Government has issued a notification bearing No. 3/75 (reproduced in zthe Gazette of Pakistan, Part 1I, dated January 3, 1975), which is as followst- "In exercise of the powers conferred by section 7 of the Pakistan Army Act, 1952 (XXXIX of 1952) and in supersession of this Ministry's Notification No. 4852/325/PSIA/4484/D-2 (A)/71, dated 23rd November 1971, Federal Government is pleased to direct that persons subject to the said Act, shall with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act."
In other words, section 7 of the Act has enabled the Federal Government to direct by notification that any person subject to the Act, under section 2(1)(a) -or (6) shall, with reference to specified area or with reference to all or any provisions of the Act, be deemed to be on "active service" within the meaning of section 8(1).
11. The learned counsel for the petitioners challenged the vires of the above notification on several counts. It was submitted that ,action 7 of the Act enabled the Federal Government to notify a specific pers(6n or a class of persons with reference to a specified area, to be deemed to be on "active service", within the meaning of section 8(l) of the Act, but the notification in question made all persons, as mentioned in the notification serving in any area whatever, without reference to a specified area, to be deemed to be on "active service". The notification was, therefore, outside the scope of section 7 of the Act.
12. This argument cannot be accepted, because the word "any" excludes limitations and qualifications. It connotes wide generality. See in this connection Pakistan Tanneries Ltd. v. Hidayat Ullah Mokal and five others (PLD 1972 Lah. 880and an earlier case, entitled Mr. Manzoor Qadir v.
Mst. Amatul Hussain and two others (PLD 1971 Lah. 537in which it was held that the word "any" cannot necessarily be equated with "specific" or "particular". In the context of subsection (2) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the word "any" was given the wider meaning because the Government in that case, had been given the power to order the transfer of all or every property in the manner, other than the one provided in the Schedule to that Act. The word "any", therefore, would mean not a particular or determinate individual of the given category, but whichever the chance may select. In the present case, any person or class of persons would also mean without specification of any particular area. They Notification No. 3/75 in respect of persons subject to the Pakistan Army Act with reference to any area in or outside Pakistan and with reference to all the provisions of the said Act, was issued to confer the statue of being on "active service" on all the Army personnel, without specifying number, time and place. Consequently, the impugned notification is not outside the scope of the provisions of section 7 of the Act.
13. 1t was then contended that if section 7 of the Act is deemed to authorise the issuing of such a notification, the same could be hit by the principle of excessive delegation. There is no dispute that the Legislature cannot abdicate altogether from its Legislative functions or totally efface itself, but where the Legislature has sufficiently expressed its will and exercised its judgment as to the territorial extent, scope and the subject-matter of the legislation, the provision of details, particularly when such details are by their very nature incapable of being laid down by the Legislature itself, can well be left to be done by another agency in whom the Legislature places con--fidence. It is laid down in Province of East Pakistan and others v. Sirajul Haq Patwari and another (PLD 1966 SC 854 that the powers of delegation have to vary not only with the scope of the authority of the delegating body, but also by the variety of the conditions and circumstances a particular law is intended to meet and the status and authority of the body to which the power is delegated. The nature of the law, whether it is of penal nature or merely of a regulatory character, has also to be considered to be of importance in this connection. Where the provisions are not new and unknown to existing. Law or where it is a subject-matter in which "accumulated experience" has established well-defined practices or where the delegate is an expert in whom the Legislature has confidence, even the American Jurists concede that a greater degree of latitude may be conferred upon the Legislature of delegating legislative powers for adequately and effectively carrying out the purpose of the Legislation. Similarly, in a Full Bench case, entitled Zaibtun Textile Mills Ltd, Karachi v. Board of Revenue () PLD 1971 Kar. 333a question arose whether the amended provisions of section 3 of the Central Excises and Salt Act, 1944, were unconstitutional on the ground of excessive or impermissible delegation of legislative powers and whether by leaving it to, the Central Board of Revenue to formulate the guidelines to determine the rate of production, capacity, tax and even to levy tax the Legislature has totally effaced itself of its essential authority. It was held that the amendments do not suffer from any defect of absence of legislative policy, standard or principles, nor did the Legislature efface itself or abdicate from its legislative functions when it conferred by amendment power on the Central Board of Revenue to determine the production capacity of an Industrial unit in accordance with the rules formulated by it, nor can it be said not to be law at all. The same view is taken in M. R. Raft-ud-Din and others v. Chief Settlement and Rehabilitation Commissioner, Pakistan and others (PLD 1964 Lah. 539) which stands confirmed by the Supreme Court in M. R. Raft-ud-Din v. Chief Settlement and Rehabilita--tion Commissioner (PLD 1971 SC 252
14. Section 7 has not conferred excessive delegation of power on the Federal Government. The law is legislated so that it may remain constant, j comprehensive and for all times. The Legislature cannot visualize the changing circumstances and requirements, therefore, to meet the needs of time, some provisions are left for the executive to determine within the framework of the law.
Having regard to the nature of the object sought to be achieved by the legislation, it is impossible for the Legislature to attempt to provide for every detail and machinery to carry it into effect, hence the Legislature, while retaining its legislative powers intact and maintaining its full legislative control, authorises the executive merely to determine the manner of carrying into effect by issuing notification or making rules in that behalf. Therefore, if some powers, which would simply implement the statute, are delegated to the executive, such delegation would not amount to any abdication of power. A concrete definition of the words "active service" has been provided in section 8(1) of the Act, but in order to suit the exigencies of the situation and meet the requirements for bette application of law, the power is delegated under section 7 to the Federal Government for declaring a person or a class of persons to be on "active service". It is in pursuance of this power that the Notification No. 3/75 dated 3-1-1975 is issued. The emergency is still in force and the Government is in the best position to know the exact dangers being faced by the country. The impugned notification cannot be said to destroy the spirit and intent of sections 7 and 8(1) of the Act.
15. Section 7 has laid down that the Federal Government may by notification declare that any person or class of persons shall be deemed to be on active service. This deeming clause would be interpreted without any prejudices. It is remarked in Abdul Hakim Khan v. Mrs. Doreen Barkat Ram (PLD 1973 Lah. 466) that in interpreting a deeming clause, like the one before us, the Court must given effect to the legal fiction without any prejudices and full effect must be given to the natural meanings of the clause. In doing so, unless the context otherwise directs, all the necessary consequences and the incidents which naturally flow as corollaries must be recognised and carried -to their logical conclusion. In that case subsection (5) of section 3 of the West Pakistan Money-Lenders Ordinance, 1960, was applied so as to mean that when an application for renewal of a licence had been received from the money-lender before the expiry of the period of licence, the existing licence was deemed to be effective until orders on the application were made.
Applying that principle to the present case, the statute has enacted3 that the persons would be deemed to be on active service when the Federal Government issues a notification, and notification in this respect has been; issued with regard to all persons subject to the Act, therefore, the Court is. Entitled to give meaning to it that statutory fiction has become a reality. Keeping the intention of the notification in mind all the military personnel including the accused, wherever and in whatever capacity they are, are on "active service." It is futile to say that a notification under section 7 of the Act can be made in respect of those persons only who are not regular Army personnel, but civilians who may be serving with units alone are to be deemed to be on "active service". Section 7 relates to persons who are subject to the Pakistan Army Act. Section 2 of the Act enumerates. Persons who are subject to the Act. Under clause (b) of subsection (1) of section 2, persons enrolled under the Indian Army Act 1911 (VIII of 1911) before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date and persons enrolled under the Pakistan Army Act, 1952, are subject to the Act. As observed earlier, it was a common point between the parties and even under section 2(1)(b) that the accused are subject to the Act and can be declared to he on "active duty". In the circumstances, the restriction in subsection (2)I of section 59 is not applicable to the accused and they are triable under the` Act, whether or not the offences relating to them are committed against ,a person not subject to the Act.
16. The second major contention raised was that the report of the offence was recorded in a local Police Station. The accused were handed over to civilian custody and the Ilaqa Magistrate had taken cognizance. Once the Army authorities chose not to take up the matter under the Act, they could not interfere with the jurisdiction of the Magistrate.
17. There is no force in this contention. Section 91 of the Act enables the "prescribed officer" to make an appropriate order. When a criminah Court and the Court Martial have concurrent jurisdiction in respect of a civil offence, it shall be in the discretion of the "prescribed officer" to r decide before which Court the proceedings shall be instituted before a Court Martial, to direct that the accused person shall be detained in military custody. Rule 168 of the Pakistan Army Act Rules, 1954, prescribes that the "prescribed officer" for the purposes of sections 94 and 95 shall be an officer having power not less than that of a Brigade or Logistics Area Commander under whom or the officer commanding the station in which he is serving, provided that, in cases falling under section 59, in which death has resulted the prescribed officer shall be an officer having power not less than that of an independent Brigade or Logistics Area Commander.
18. In the present case, the person against whom the offence is committed was brutally murdered and in the circumstances it was the Brigade Commander who could take decision under section 94 of the Act. As stated in the reply, the accused were handed over to the police custod;by Major M.
Zafar Islam who was not competent to apt under the law, therefore, any action taken in this respect earlier to the action of the Brigade Commander was not an action contemplated by section 94 of the Act. It was only the order dated 19-12-1975, passed by the Brigadier Comn)ander which was cnvered by the provisions of law. As this order was passed for the first time, exercising power under section 94, it cannot be termed to be without lawful authority.
In the circumstances, there is no force in thin contettion.
19. The learned counsel for the respondent raised a point that no order' under Article 199 of the Constitution of the Islamic Republic of Pakistan cam, be made on an application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to,, any law relating to any of those forces in respect of any action taken in-relation to him as a member of the Armed Forces of Pakistan, or as a persona subject to such law.
20. As the writ petitions have otherwise been found to be without merit, it is unnecessary to go into this technical objection.
21. For the foregoing reasons, the impugned order does not suffer from any infirmity of jurisdiction.
The writ petitions are accordingly; dismissed, but in view of the intricate question of law raised therein, there, will be no order as to costs.