JUDGMENT ABDUL MAJID KHANZADA, J.
The applicant under Section 561-A Cr.P.C, has challenged the Order dated 31-8-1995 of learned Sessions Judge, Malir and prayed for quashment of proceedings of this Case. The facts relevant for decision of this Application are as follows:
2. The prosecution case, in brief, is that on 25-4-1995 Lance Naik Kabir Ahmad of 01 Transport Battalion National Logistic Cell, while driving rashly and negligently Vehicle B.A. No. 859857 had caused death of one Asif Baig and such F.I.R, bearing No. 172/1995 under Section 320 P.P.C, was registered at Police Station Quaidabad District Malir. On completion of investigation the Police submitted charge sheet before Additional Magistrate. Malir, who under Section 190(3) Cr.P.C, sent the case to learned Sessions Judge, Malir. The Applicant prayed for the transfer of the case to the Military Authorities but the prayer was turned down by the learned Sessions Judge by the order which has been impugned in this Application.
3. In support of his contentions learned counsel for the applicant has referred to Section 59 of the Pakistan Army Act, 1952, which reads as under:- "59. Civil offences.-(1) Subject to the provisions-of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against his Act and, if charged therewith under this section, shall be liable to be dealt with under this Act, and, on conviction, to be punished -as follows, that is to say,-
(a) ..........................
(b) ..........................
4. He has also referred to Sections 94 and 95 of the Pakistan Army Act which read as follows:- "94. Order in case of concurrent jurisdiction of court martial and Criminal court. 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."
"95. Power of criminal court to require delivery of offender.-(1) When a criminal court having jurisdiction is of the opinion that proceedings ought to be instituted before itself in respect of any civil offence, it may, by written notice, require the prescribed officer, at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Federal Government.
(2) In every such case, the said officer shall either deliver over the offender in compliance with the requisition shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Federal Government, whose order upon such reference shall be final".
5. Further, he has referred to Sections 549, 5(2) and 6 of the Code of Criminal Procedure, which read as under:- "549. Delivery to Military Authorities of persons liable to be tried by Court martial.--(l) The Central Government may make rules consistent with this Code and the Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953) and the Pakistan Navy Ordinance, 1961 (XXXV of 1961) 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 this Code applies, or by Court- martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by to which this Code applies or by a Court-Martial, such Magistrate shall have regard to sub rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the Commanding Officer of the regiment, corps, ship or detachment, to which he belongs, or to the Commanding Officer of the nearest military, naval or air-force station, as the case may be, for the purposes of being tried by Court- martial.
(2) Apprehension of such persons. Every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of any body of soldiers or sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
(3) Notwithstanding anything contained in this Code, if the person arrested by the police is a person subject to the Pakistan Army Act, 1952 (XXXIX of 1952) and the offence for which he is accused is tribal by Court-martial, the custody of such person and the investigation of the offence of which he is accused may be taken over by the commanding officer of such person under the said Act."
"5. Trial of offences against other laws.- (1)......................................
(2) Trial of offences against other laws. All offences, tinder any other law shall be investigated enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
"6. Classes of Criminal Courts. Besides the High Court and the Courts constituted under any law other than this Code for the time being in force there shall be five classes of Criminal Courts in Pakistan, namely;-
(i) Courts of Session:
(ii) (Presidency Magistrate) Omitted by A.O., 1949, Scheld.
(iii) Magistrates of the First Class.
(iv) Magistrates of the Second Class.
(v) Magistrates of the Third Class."
6. Article 199(3) of the Constitution of the Islamic Republic of Pakistan has also been referred by the counsel for the appellant, which read as under:- "199(3). An order shall not be made under clause (l) on 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 his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken . In relation to him as a person subject to law."
7. Learned counsel for the applicant has also referred to Rule 2 of the Criminal Procedure (Military Offenders) Rules, I970, which reads as follows:- "2. Where a person subject to military, naval or air force law is brought before a Magistrate and charged with an offence for which he is liable, under Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Navy- Ordinance, 1961 (XXXV of 1961), or the Pakistan Air Force Act, 1953 (IV of 1953) to be tried by a court martial, such Magistrate, unless he is moved by the competent military, naval or air force authority, as the case may be. To proceed against the accused under the Code, shall before so proceeding give notice to such authority and, until the expiry of a period of fifteen 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 here him in his defence under Section 244 of the code, or
(b) frame a charge against the accused under Section 254 of the Code, or
(c) make an order committing the accused for trial by the High Court or the Court of Session under Section 213 of the Code, or
(d) transfer the case for enquiry of trial under Section 92 of the Code."
8. Learned counsel of the applicant has also placed reliance on Khalil Ahmad & Another Vs. District & Sessions Judge, Rawalpindi 6 Another, 1990 P. Cr.L.J. 1744(Lahore), Muhammad Mushtaq Vs. Federation Of Pakistan, 1994 S.C.M.R. 2286, (Commander) M.S.K.Ibrat Vs. The Commander-in-Chief Royal Pakistan Navy & 2 Others, P.L.D. 1956 S.C. 264, and an unreported recent Judgment passed by a Division Bench on 26-9-1995 in Muhammad Parves Vs. Federation Of Pakistan & 5 Others (Constitutional Petition No. D-454/95).
9. In the case of Khalil Ahmed & Another vs. District & Sessions Judge. Rawalpindi & Another, 1990 P.
Cr. L.J. 1744 (Lahore), it was held that, an ordinary Court has no discretion to refuse to hand over custody of a person subject to Pakistan Army Act, 1952.
10. It was held in the case of Muhammad Mushtaq Vs. Federation Of Pakistan, 1994 S.C.M.R.2286 that in relation to a person who js member of. Armed forces of Pakistan, even though based on fundamental rights. *
11. In (Commander) M.S.K Brat vs. The Commandar-in-Chief Royal Pakistan Navy & 2 Others, P.L.D.
1956 S.C. 264, it was held that under Section 549 Cr.P.C, temporarily Magistrate's jurisdiction to try cases of persons subject to military, naval or air force law-Boes not limit powers of military, naval or air force authority to try such persons by Court-martial.
12. It was held in unreported judgment of Division Bench of this court passed in Muhammad Parvez vs. Federation of Pakistan & 5 Others C.P. No. D- 454/95, in which both the Judges have recorded their separate judgment, but in agreement to each other, a& under:- "...... The decision of the Honorables Supreme Court is binding on us but it is not binding on the Field General Court Martial. Therefore, the reply of Adjutant General Branch dated 26-101993 is correct.
Article 199(3) does not empower this Court to pass any order in relation to a person who is member of the Armed Forces of Pakistan or in respect of any action taken against him ?s a member of Armed Forces of Pakistan. Therefore, no order can be passed as requested in this petition because* Article 199 restricts the jurisdiction in this respect."
It was further held:- "It is not within our powers to give decision that in Islam mercy petition and appeal are barred that the action of government in not amending the Army Act from the date mentioned by Supreme Court amounts to contravention of Injunction of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet."
13. I have heard the arguments of both the counsel and have gone through the citations and the law quoted by the learned counsel for the applicant and have also heard Mr. Abdul Ghafoor Mangi, learned Advocate General of Sindh.
14. Learned Advocate General of Sindh has supported the contentions of the . Learned counsel for the applicant and has submitted that initially the concerned Magistrate should have enquired from the Military Authorities as laicisation under Section 94 of the Pakistan Army Act, 1952 whether they would like to try the Army personnel under Court Martial or under civilian law. This is basic lacuna in the proceedings. Now since the Army authorities have approached the trial Court for the custody of the accused for trial under the Pakistan Army Act, 1952. The trial Court should not have any objection and the custody should have been delivered to the army authorities for trial.
15. I am of the view that when there is a move from the Military Authorities the custody of the armed personnel is to be handed over to the Military Authorities, to be tried by them. Here, the learned Sessions Judge has erred as, according to law, if a military person is arrested in civil crime a notice is to be sent within 5 days before the trial and in case no response is given by the Military Authorities then alone the trial can be commenced on the civil side and if the demand is made by the Military Authorities the same is to be handed over without fail. There was a written request made by It. Col. Saeed Ahmad Khan, who is the Principal Staff Officer, who has also sworn an affidavit in support of this application, as such the learned Sessions Judge should have allowed the application and should have handed over the custody of the Army personnel to the Military Authorities as provided by the law. Challan of this case was accepted by Addl. City Magistrate, Malir on 16-7-1995. Learned A.C.M.. Should have given notice to the Army Authorities about the custody and its trial, on the other hand, he has erroneously sent up the case to the Court of Session under Section 190(3) Cr.P.C, as such the learned Sessions Judge took the cognizance under Section 193 Cr.P.C.
16. Learned Sessions Judge only realised when the present applicant moved applicant for the trial of the case and custody to the Military Court.
17. Lam of the view that Court of Session as envisaged under Section 6 of Cr.P.C, which defines classes of criminal Courts also comes within the scope of this Section, whereas section 549 Cr.P.C.
Also provides that persons subject to Military, Naval. Air Force shall be tried by a Court in which this Code applies, or by court martial.
18. It is apparent that the offence with which the accused is challaned is exclusively tribal by the Court of Session, but in this case accused happens to be an Amiy Personnel as such Pakistan Army Act 1952 is applicable which provides that such persons are to be tried by Military Courts and delivery of such accused is to be handed over to Military Authorities. The trial before the Sessions Court becomes corum-non-judice when the Army Authorities want to try the accused under Army Act. The learned Sessions Judge has relied upon case Ch. Sardar Ali Advocate vs. Tin- Hon'ble Judges of he Lahore High Court, reported in P.L.D. 1956 S.C.(Pak.) 274. 1 have carefully examined this case and finds that the facts and circumstances are very much distinguishable from the present case as the Army Authorities have immediately approached the trial Court for the delivery of the custody for trial of the accused under Army Act and this decision is to be taken by the Army Authorities alone under Section 94 and 95 of Pakistan Army Act of 1952, as to where the accused should be tried.
19. Under these circumstances, I set aside the order dated 31-8-1995 passed by the Sessions Judge Malir in (Crime No. 172/95) Sessions Case No. 265/95 with the direction that the custody of Lance Naik Kabir Ahmad be handed over to the Military Authorities, as prayed, for trial. This Cr. Misc, is accordingly disposed of in the above terms.