' This revision is directed against the judgments, dated 18-3-1997 and 18-2-1996 passed by the learned Sessions Judge, as well as Judicial Magistrate, Attock, respectively whereby the petitioner was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to 1-1/2 years' R.I., and a fine of Rs,5,000 or in default thereof to further undergo 4 months' imprisonment. On appeal the conviction and sentences awarded by the trial Court were upheld by the learned Sessions Judge, Attock. Benefit of section 382-B, Cr.P.C. Was, however, extended to the petitioner.
2. Briefly stated, facts of the case, as reflected from the contents of the F.I.R. Are that on 4-11-1993 the complainant Sub-Inspector, Muhammad Azad, alongwith other police officials were present at Check Post Attock Khurd. At about 1-30 p.m. a bus bearing Registration No,R.I.N-711, coming from Peshawar was stopped by him. The bus was thoroughly checked and searched and in consequence, the petitioner Mujeeb Ahmad who was travelling therein was brought down on suspicion. He was carrying a parcel bearing No,452/7/SALM of 4-11-1993 (it appears that the last- mentioned figures perhaps relate to the date of despatch, which may be 4-11-1993. However, the same figures i,e, 4-11-1993 have been carried out by both the Courts below in their judgments). The parcel was accordingly searched and from inside thereof, three small packets containing Charas were recovered which on weighing were found to be 700 grams. After taking out 15 grams of Charas from the same for sending to the Chemical Examiner, in a sealed cover, the remaining Charas was also sealed in a separate parcel. Complaint Exh.P.C. Was accordingly written and sent to the police station for formal registration of the case. On the basis of above report, a formal F.I.R.
Bearing No,993 was subsequently registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, and on the completion of investigation petitioner was challaned to the Court for trial.
3. At trial, the prosecution examined five witnesses in all. P.W.1 Gharib Nawaz, Constable deposed that on 4-11-1993 he was present at Attock Check post when a bus bearing Registration No,R.I.N-711 was stopped and the accused/petitioner who was carrying a parcel in his hands at the relevant time was brought down on suspicion. He stated that on search of the bag three packets of Charas were recovered therefrom. All the packets were weighed, which were found to be 700 grams. He further deposed that the S.-I. Separated 15 grams of Charas, in a sealed parcel for sending to the Chemical Examiner also sealed and secured the remaining Charas, in a separate parcel, wide memo. Exh.P.B. P.W.2 Munawar Khan deposed that on 4-11-1993 he was posted as Moharrir Malkhana at Police Station Attock Khurd when two parcels containing Charas were received by him from the complainant Muhammad Azad, S.-I. For keeping the same in Malkhana, which was done, and later on 7-11-1993 one packet was sent to the office of the Chemical Examiner through P.W.3.
P.W.2 confirmed that as long as, he kept the parcel, the same remained intact. P.W.3 Attaullah deposed that on 7-11-1993, P.W.3 Munawar Khan delivered him one parcel for onward delivery to the Chemical Examiner which, he accordingly delivered to the Chemical Examiner, intact. He affirmed that as long as the parcel was kept by him the same remained, intact. P.W.4 Ghulam Haider is also a marginal witness to the recovery of the contraband material. He at the trial corroborated the statement of P.W.1 in all material particulars and affirmed on oath that the contraband material was recovered from the parcel in his presence which was being carried by the accused/petitioner at the relevant time. P.W.5 Muhammad Azad, S.-I. Is the Investigating Officer of the case. He reiterated the version contained in the F.I.R. And deposed that search of the appellant as well as parcel was conducted in his presence, as a result 700 grams of Charas was recovered, therefrom.
He confirmed that after separating 15 grams of Charas, for chemical examination, in a sealed cover, he had also sealed the remaining bulk in a separate parcel. He produced and identified the said parcel in Court. He further deposed that in consequence of the above recovery he had written the complaint Exh.P.C. And sent the same to the police station for formal registration of the case. He further stated that subsequently he had also conducted investigation of the instant case and on completion thereof had also challaned the accused to the Court for trial. He also tendered in evidence report of the Chemical Examiner, Exh.P.E. He was subjected to lengthy cross-examination but nothing favourable to the defence and damaging to the prosecution was possible to be elicited from him.
4. The accused/petitioner was, thereafter, examined under section 342, Cr.P.C. In his statement he denied the charge and pleaded that he was innocent, and that Charas was not recovered from his possession he, however, admitted his presence in the bus, but pleaded that there was some altercation between him and the policemen which ultimately culminated in registration of the present case. He also appeared as his own witness in terms of section- 340(2), Cr.P.C., but in his deposition on oath, he stated that he would rely on his earlier statement recorded under section 342, Cr.P.C. And would not like to make any addition. However, no witness was produced by him in his defence. After hearing arguments of the parties, the trial Court convicted and sentenced the petitioner as mentioned in the opening para. Hereof.
5. I have heard Mr. Shaukat Aziz Siddiqui, Advocate, learned counsel for the petitioner and Mr. Muhammad Aslam Uns, Advocate, learned counsel for the State.
6. Learned counsel for the petitioner has raised mainly, the following three contentions:--
(i) That trial of the petitioner by a Magistrate was not only patently illegal but was without jurisdiction as well. The same was also in complete disregard of section 549, Cr.P.C., as well as the rule framed thereunder.
(ii) That most of the evidence having been recorded by Reader of the Magistrate was inadmissible particularly, in the absence of Memorandum as provided by section 353(3), Cr.P.C.
(iii) That the case property was not produced in Court at the trial having been destroyed earlier without seeking permission of the Court.
7. Mr. Muhammad Aslam Uns, Advocate, learned counsel for the State while controverting the above contentions raised by the learned counsel for the petitioner submitted that since a notice as prescribed by section 549, Cr.P.C. As well as Rule 2 of the Criminal Procedure (Military Offenders)
Rules, 1970 was issued by the learned Magistrate and that the Military Authorities despite service of the above notice had failed to take cognizance of the matter and try the accused/petitioner themselves, therefore, the trial conducted by the Magistrate, was in accordance with the law.
8. In order to supplement his first contention that trial of the petitioner being in violation and disregard of the provision of section 549, Cr.P.C. Was not legal, the learned counsel for the petitioner contended that the petitioner being an army employee, the learned Magistrate, before framing the charge Sand proceeding with trial of the case, was under legal obligation to issue notice as provided by Rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970 to the competent Authority, thereby calling upon the same to decide as to whether the accused/petitioner was to be tried by the said authority or that there should be a magisterial trial.
Learned counsel for the petitioner argued that the omission so made by the Magistrate had not only vitiated and invalidated all subsequent proceedings but had also gravely prejudiced the petitioner in his defence. In support of his above contention he placed reliance on the following reported judgments:--
(i) Khalil Ahmad and another v. The District and Sessions Judge, Rawalpindi and another reported in 1990 PCr.0 1744, wherein, it was held that an ordinary Court had no discretion to refuse to hand over custody of a person subject to Pakistan Army Act, 1952, when it receives an intimation from the prescribed officer or competent Authority that he was to be tried by a Court Martial for a civil offence as envisaged by section 59 of the Pakistan Army Act, 1952.
(ii) Allah Ditta v. The State, PLD 1976 Lah. p.823 in which a Division Bench of Lahore High Court was pleased to hold that a Brigade Commander, as prescribed officer under section 94 of the Pakistan Army Act, was competent to take the decision regarding trial of the accused at a particular forum, and, that order passed later on by the prescribed officer, withdrawing case from Court of a Magistrate for trial by Court Martial, could not have been termed to be without lawful authority.
(iii) AIR 1945 Mad. 289, In re: Captain Hugh May Stollery Mundy and another. In which, it was held that where the attention of the Magistrate, who tried the accused, was not drawn to section 549 or the rules issued thereunder, and he did not act in accordance therewith the trial was illegal and the conviction and sentence was liable to be set aside.
8. Learned counsel for the State, on the other hand, submitted that a notice as provided by Rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970 was issued by the Magistrate on 10-12-1995, but since the same was not replied to, therefore, the Magistrate had no option, but to proceed with trial of the case. He maintained that the trial conducted by the Magistrate as such was not illegal, In this behalf, he placed reliance on a Single Bench judgment of this Court delivered in the case of Iftikhar Ahmad Jamal v. The State reported in PLD 1983 FSC 22, wherein it was held that the Magistrate subsequent to making a reference under section 94 of the Army Act, during trial of the case and after getting reply from the prescribed officer was not required to reframe the charge or proceed afresh with trial of the case, particularly, when the accused had failed to bring on the record, to show as to how, he was prejudiced in his trial, on the basis of old charge framed.
9. I think before dealing with the proposition in hand it would be highly beneficial to have a glance at section 549, Cr.P.C. Which is reproduced hereinbelow in extenso:-- "549 Delivery to military authorities of persons liable to be tried by Court-martial. (1) 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 a Court to which this Code applies or by a Court Martial, such Magistrate shall have regard to such 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 anybody of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours 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 triable 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."
' Record reveals that in pursuance of the powers given by section 549, Cr.P.C., the Central Government had framed the rules called as Criminal Procedure (Military Offenders) Rules, 1970 and the same were duly published in the Gazette of Pakistan, Part 1, dated 30th October, 1970.
' In order to properly appreciate the contention raised by the learned counsel for the petitioner it would also be fruitful to reproduce hereunder Rule 2 of the above rules which reads as follows: "Criminal Procedure (Military Offenders) Rules, 1970: (1)
(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 (VI 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---- (Underlining is mine).
(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 Code, or
(b) frame a charge against the accused under section 241 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 or trial under section 192 of the Code.
' In the above context, it would also be advantageous to go through section 94 of the Pakistan Army Act, which determines powers of the prescribed officer in deciding forum of trial, in such cases, where a person subject to Army Act is involved in the commission of a criminal offence, punishable by the Court, established under the Criminal Procedure Code as well: "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."
10. A bare perusal of the above provisions of law would reveal that the Criminal Courts and the Court-martial have concurrent jurisdiction in respect of civil offence of persons subject to Pakistan Army Act and under section 94 of. The said Act, the prescribed officer has to decide as to before which Court, the proceedings shall be instituted/take place, but he cannot exercise this power unless he receives a notice, issued under Rule 2 of the Criminal Procedure (Military Offenders)
Rules, 1970 from the Criminal Court, before which, the challan is presented. Likewise, the Criminal Court referred to hereinabove too, would not proceed with the case unless, a notice as contemplated by Rule 2 of the Criminal Procedure (Military Offenders) Rule, 1970 is issued by it and the statutory period prescribed therein, has elapsed. Now if the case in hand is examined in the light of abovequoted provision of law, it would emerge that in the instant case, the challan was presented before a Magistrate on 14-11-1993 and it was mentioned therein, that the accused was an army employee. Record reveals that subsequent to the presentation of challan, the learned Trial Court, instead of issuing a notice, as provided by rule 2 of the Army Act, proceeded with trial of the case, in course whereof not only, the charge was framed on 8-5-1994 but some evidence was also recorded. It also appears from record that notice as required by under rule 2 of the Criminal Procedure (Military Offenders) Rule 1970, was issued on 10-12-1995 and the learned Judge without waiting for a reply from the prescribed officer continued proceeding with the trial, which to my mind was not proper. Since service of the notice under Rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970 was a condition precedent to the exercise of jurisdiction by the Magistrate, therefore, all the proceedings carried out subsequently by him were without jurisdiction. It may be pointed out here that though an accused has no right in procedure and forum of trial yet the Courts of law are not supposed to deviate from the prescribed procedure particularly when exercise of jurisdiction is dependent upon the same.
' The very language used in section 549, Cr.P.C. As well as rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970 particularly, the use of word "shall" in the underlined sentences would suggest tliat the clog for the issuance of notice imposed by the Legislature wasiis mandatory. The learned Court below, as such, was not justified in making a departure therefrom.
11. So far as, the case cited at the Bar by Mr. Muhammad Aslam Uns, learned counsel for the State i,e, Iftikhar Ahmad Jamal v. The State PLD 1983 FSC 22 is concerned, to my mind, the same would be of no help in the contention raised by the learned counsel for the State inasmuch as, the facts and circumstances of that case are clearly distinguishable from the case in hand. In the said case, at the time of framing the charge, it was not known to the Presiding Officer that the accused was an army employee and the fact that he was a deserter from the army for the first time was pointed out by father of the accused in the course of the trial, whereafter, the Magistrate immediately issued a notice as contemplated by rule 2 of the Criminal Procedure (Military Offenders) Rules, 1970 to the Prescribed Officer and on the receipt of reply from him, proceeded further, whereas, in the instant case the facts are other way round.
12. The upshot of above discussion is that the trial of the petitioner as conducted by the Magistrate, was not in accordance with law. His conviction and sentence as such is set aside. Normally after declaring so, I would have remanded the case, for de novo trial, by the competent Court, but since, it has been pointed out by the learned counsel for the petitioner that during pendency of the revision, the petitioner has served out his sentence and remand of the case would expose him to double jeopardy, therefore, while relying on the case of Ghulam Hussain v. The State 1990 PCr.LJ 577 I am inclined to acquit him of the charge. Mr. Muhammad Aslam Uns, learned counsel for the State also expresses his no objection in this behalf. Consequently, the revision is allowed, the conviction and sentence of the petitioner is set aside and he is acquitted of the charge.