' This constitutional petition under Article 199 relates to the arrest and detention by Army Authorities of Mr. Ahmad Faraz, Project Director, Academy of Letters in the Federal Ministry of Education, which post as asserted in the petition is "comparable to that of a Joint Secretary".
2. The detenu is a poet of Urdu language. The petitioner claims to be a friend of the detenu. It is averred in the petition that before the impugned arrest on 26-5-77 at about 8 p m., when the petitioner was staying with the detenu, it was learnt that "certain persons in the Government were trying to oust him (the detenu) from his job and were trying to involve him in some kind of frame- up". In this connection, the detenu, it was further asserted, informed the petitioner that even "the Army Intelligence was reported to be making investigation about his activities, his views about the Government and the Armed Forces particularly with reference to their involvement in past and present civil situations". The petitioner further asserted on personal information that "sometime ago also the detenu was under clouds. A Federal Minister, with the assistance of some newspapers, attempted to make a scandal of the detentes views and was almost successful in getting the services of the petitioner terminated." Although the name of the Federal Minister was not disclosed in the petition, during the course of hearing at limine stage, he did disclose the same and it has subsequently been mentioned in the other petition moved under section 491, Criminal Procedure Code. The allegation is in respect of Maulana Kausar Niazi, a Minister in the Federal Government. In Para. 2 (c) of the petition, it was specifically asserted that at the time of arrest of the detenu in presence of the petitioner, "a group of persons in plain clothes appeared outside the detenu's office and made enquiries about him. The detenu and the petitioner came out and, found an official jeep standing in dark outside the main gate of the house, one or two armed men in uniform in the gate and about four persons in plain clothes. One of the members of the party told the detenu, after the latter introduced himself in reply to the former's query, that he was to be arrested. The detenu asked if there were any warrants of his arrest and was told that there were but was not shown any.
Nor was the detenu told about the cause of his arrest. The patty in plain clothes took the detenu along in the jeep to some unknown destination." It was subsequently learnt that the detenu was being kept in a Military Camp at Mansar, District Campbellpur. The arrest and detention was challenged on various grounds including malice, lack of authority and unlawful maoner. Prayer was made for the production of the detenu in Court so as to give him opportunity "to explain the background of his arrest and detention". The main prayer was that he be set at liberty after examining the question of authority to detain him.
3. When the case came up before me in motion hearing, the petitioner, as noted in the order passed on 1-6-1977, was questioned "on various aspects of the averments made in the petition". It was also noted that he was present when the detenu was taken into custody-in other words, that he is an eye-witness. He had then explained that although the persons who came to arrest the detenu gave out "that the arrest was under proper warrant but they despite the demand by the detenu did not let him read a paper held by one of them in his hand "which" purported to be the so-called warrant". After the aforenoted due questioning and "in view of the allegations made in the petition which is supported by an affidavit", the petition was formally admitted to regular hearing with a direction for notice to issue to the respondents who at that stage were the Federal Government, the Commander Mansar Army Camp, the Provincial Government and the D. I. G.
Police, Rawalpindi. After this formal order of admission and notice, it was directed that a bailiff should recover the detenu from Mansar Camp by contacting respondent No, 2 (Commander thereof) for production in this Court on the next date i,e, 2-6.77, by 1 o'clock so that he might "be dealt with in accordance with law". The bailiff submitted a detailed report on 3-6-77 showing his inability to produce the detenu in Court on account of failure of the Military Authorities to hand the detenu over to him. He also indicated that the Adjutant-General, Pakistan Army was concerned in the mater. On the same day, in view of the bailiff's report, two applications of the petitioner were allowed-one, for impleading the Adjutant-General of the Pakistan Army as a respondent and the other, for directing a superior official of this Court for contacting the Adjutant-General of the Pakistan Army. However, in order to avoid formalities, the learned Advocate-General, as officer of the Court, was asked to enquire as to whether the Military Authorities were facing any difficulty in producing the detenu. He, it is apparent from the proceedings, did make efforts in this behalf but without any success. He ultimately conveyed information on 6-e-197 through one of his Assistants that "an appeal has been filed by the Federal Government against the order dated 1-6-77 of this Court, which is fixed for hearing tomorrow (i e. 7-6-77)". The proceedings on this petition accordingly were adjourned ''to await the decision of the Supreme Court in appeal". It appears that special leave to appeal not having been allowed, it was decided by the concerned authorities to produce the detenu in this Court.
4. When the case came on 8-6-1977, although the detenu was in attendance, learned counsel for the Federal Government objected to his examination as noted in the order dated 8-6-77 "even for a limited purpose, namely, the initial manner of arrest and the present manner of custody". But a Lt.- Colonel in the J. A. G. Branch of the Army, namely, Mr. Muhammad Akram who was assisting the learned counsel for the Federal Government and at the relevant time represented respondent No,
2. It was further noted in the order, bad "no objection to the examination of the detenu in so far as the present manner of custody is concerned". After hearing all concerted, I overruled the objection of the learned counsel for the Federal Government and directed the examination of the detenu 'for the limited purpose of seeing whether the manner of his present custody is unlawful and is mala fide", Earlier, Lt.-Col. Muhammad Akram had verbally explained the circumstances in which the detenu was arrested. He also produced for examination of the Court some material on the basis of which the initial arrest took place. It consisted of two copies of a poem with some endorsements, but the officer sought permission not to place them on the record for the time being. They were returned to him. The other evidence "so far collected" was not produced "for the time being" for the examination of the Court. Three documents relating to the prima fade authority to arrest and keep in custody the detenu were produced for examination of the Court. They also, on the request from the respondents' side, were returned after perusal though the same were subsequently formally placed on record as respondents' documents. A reference to them would be presently made.
5. The detenu made the following statement on the limited questions noted above Statement of Ahmad Faraz, detenu.
(The detenu has been asked some preliminary questions about his education and his status and background so as to put him at ease. He has also been told that he should feel free without any influence whatsoever to make the statement in this Court.)
Q.-Are you under any pressure to make a statement in this Court which is not true?
Q.-Are you under any physical pressure/torture?
A.-Not now, but for the first two days I was put under physical pressure (J....1 Q.-Give the details of the physical pressure?
A.-I was blind-folded tightly. I was taken into a cellar. There was no ventilation in that cellar. There was only one door which was closed from outside. The air was so heavy that I could not easily breathe. Some rotten food was brought to me which I refused to take. I was not provided with any regular bedding. Only a rotten blanket was given to me for the night. Next morning, 1 was again blind-folded and was taken to bath-room and brought back to the same cellar. 1 asked for cigarettes which were provided. T was again blind-folded at about 1 O'clock and put in a carriage and was taken to a place which after the fold was removed from my eyes, I discovered was a quarter-guard. But I did not know what locality it was. I originally guessed that either it was Kharian or Attock side but subsequently I discovered it was Mansar.
At Mansar, at 5 O'clock in the afternoon I wanted to answer the call of nature. I was handcuffed and taken to a tree instead of a bath-room. On the next day, I was shifted to a reasonably good room.
During the previous night I was kept in a room which was horrible. There was no proper bedding although I could breathe easily in that room. Q. -You have described the room as horrible but the description you have given does not appear to he so. A.-It was my impression. There is nothing spacial. It was on the next evening that I was shifted to the aforementioned better place though I was taken to that place in a blind-folded condition. The new place was quite comfortable. I was lodged in that new place and remained there till I was removed from there tier taking me to the High Court yesterday. On the way to Lahore, the persons who brought me were cooperative and nice. The torture that I underwent is solitary confinement since the day I was arrested. Even in the aforementioned better place, I am kept in solitary confinement. No one was allowed to see me.
Even the guards were not allowed to talk to me. Q.-Have you been told as to what is the accusation against you ? A.-No, Q.-Daring this entire period of custody, has anybody told you that you have been kept in custody for seducing or attempting to seduce any person who is subject to the Army Act from his duty or allegiance to the Iovernment?
A. - No, (The question has again been repeated to the detenu with a warning that if he insists he can be put under oath and if he tells a lie he will be prosecuted under section 476, Cr. P. C , which might entail serious consequences).
Q.-Are you sure that you were not told during this entire detention period about what was the accusation against you?
A.-These people did no tell me anything about the accusation during this period. However, before the arrest, at a lunch which l had with Secretary, Interior (Mr, M. A. K. Chaudhry), he told me that some poem is "roamed abaui." and that my name was being mentioned as the author of that poem. I told him that although I bad seen the poem bat it is not my poem, meaning thereby that I was not its author. This is what I assessed and guessed later on after arrest, might be cause for my arrest and detention.
(Lt.-Col. Muhammad Akram, who is present in Court, has been pointed out to the detenu also then he is asked the question).
Q.-Have you seen Lt.-Col. Muhammad Akram prior to today's proceedings in Court during the period of your detention?
4.-No, I am seeing him for the first time. Q.-Did you ever see Lt.-Col. Muhammad Akram prior to your arrest ?
A.-I do not remember.
(Question on suggestion from the learned counsel for the Federal Government).
Q.-Has any facility been refused to you which you might have asked for during the period of detention ?
4.-Yes. They reused me the permission to see my visitors, relations and friends. Q.-State any other facility, e.g., food which might have been denied to you ?
A. --No such facility was deified.
(Lt.-Col. Muhammad Akram has been afforded opportunity to put questions to the detenu with regard to the statement he has so far made, He says he does not want to put any question).
(On suggestion from learned counsel for the petitioner).
Q.-Do you get newspaper and other communication facilities, e.g., writing letters to your friends and relations ?
A.-It was last week that they started giving me newspaper and couple of books also have been provided to me and that also during the last week. Although I did ask for facility to write letters to my relations but I was not allowed this facility."
' Although at an earlier stage, when the documents relating to arrest and investigation were shown, it was not thought necessary by the learned counsel for the petitioner to examine Lt.-Col. Muhammad Akram, yet after the examination of the detenu the Court thought it necessary to seek clarification "from Lt.-Col. Muhammad Akram who, it appears from the documents already shown by him, is at present the Investigation Officer." His statement reads as follows :- "Statement of Lt -Col. Muhammad Akram of the J. A. G. Branch. Q.-Are you the Investigation Officer in this case ?
A.-I have been ordered to record summary of evidence in this case against the detenu. Q.-The detenu has, in our presence, made a statement that throughout the period of custody I e. About 12 days, he has not been told as to what he is accused of. Is this coma ?
A.-This is correct that he has not been informed about the allegation. But according to the procedure under the Army Act and rules made thereunder, an accused person can be given a copy of the abstract of evidence or summary of evidence prior to his being arraigned but not less than 24 hours prior to being arraigned and then he is given an opportunity with the caution that he is not bound to make a statement, and if he desires to do so that may be used against him. Q.-Are you aware that the detenu has not been allowed to meet anybody and has also not been allowed to talk even to the persons who keep guard on him, as alleged by him in your presence ?
A.-I am not aware of the factual position. But according to the procedure and as held in the case of F. B. All and Aleem Afridi, it had been accepted that during the period the case is being investigated, the accused is not permitted to contact his defence counsel and a reasonable restriction can he placed upon him for some time for communicating with hip friends end family members. Q.-Do you want to volunteer any other intement ?
A.-if the Court seeks any clarification, I would like to make the same but there is nothing that I would like to volunteer as a statement."
6. A controversy arose during the arguments, namely, whether it was necessary for the authorities to inform the detenu as to why he was being, proceeded against under the Army Act and as Lt.- Col. Muhammad Akram made mention of the warrant of arrest, question arose whether the detenu was not informed about the contents of the warrant at the time of his arrest. That being so, the contention of the learned counsel for the Federal Government that "no question be asked from the detenu with regard to the initial arrest" was repelled and the detenu was directed to be "re- examined on the question whether he was shown any warrant of arrest and whether he was allowed to read it". He then made the following statement :- 'Re-examination of Ahmad Faraz detenu. Q.--Were you shown any warrant of arrest by the person(s) who came to arrest you ?
A.-Ono person out of several came and he showed a paper saying whether I am Ahmad Faraz. I answered, "Yes". Be Showed paper from distance saying that it was my warrant of arrest. I requested him for reading the paper which was in his hand but he refused to permit me to read it.
(The warrant of arrest has been shown to the detenu from a distance and be has been asked whether the paper which was shown to him was of its size. He states that it was of lesser size tan this paper).
(Opportunity afforded to learned counsel for the Federal Government, Lt.-Col. Muhammad Akram and Mr. Marto for putting questio as with regard to the above answers given by the detenu. Mr. Najafi states that he has not enough instructions at present stage to put any questions in this behalf. Copy of warrant of arrest produced in Court for the second time for putting the above questions to the detenu has been again returned to Lt.-Col. Muhammad Akram)."
7. On the next day, i,e,, 9.6-1977 an affidavit sworn by Major Muhammad Matlub Khan was submitted from the respondents side along with separate written preliminary objections. It reads as follows : "Affidavit of P. A. 6790 Major, Muhammad Mutlub Khan, Officer Commanding, 706-Field Intelligence Unit, Rawalpindi.
' I, the ahovc-named deponent do hereby solemnly affirm and declare as under :- ' That deponent is Officer Commanding, 706-Field Intelligence Unit. Rawalpindi.
' That on 25th May 1977 at 8.00 p.m. I received warrant of arrest of Mr. Ahmed Faraz, Director- General Academy of Letters, issued by Brig. Tassadiq Hussain, Commander Logistic Area, Rawalpindi.
' That in compliance of the order of arrest, the deponent reached office/ residence of aforesaid Mr. Ahmad Faraz where he was not available.
' That again on 26th May 1977 at 8-15 p.m. I went to the office/residence of the aforesaid Mr. Ahmed Faraz for the compliance of the order of arrest and found him there. I explained him the warrant of arrest-and read out the same to him.
' That as I was apprehending that the said Mr. Ahmed Faraz may tear the warrant of arrest, I did not hand over the same to him but showed him the same and read it including the sections under which he was being arrested, and the allegations upon which he was being arrested.
' That after arresting the aforesaid Mr. Ahmad Faraz, he was brought to my Unit at Rawalpindi where be was served with cold drink and tea. Thereafter he a as given proper dinner.
' That at night he was kept in the Unit at Rawalpindi in an under. Ground cell which is meant for lodging of the Senior Army Officers under arrest. This room is of normal size, has a Dari as matting, table and chain, with proper lighting arrangements. He was provided a proper bedding as well as a Table Fan. The room was equipped with exhaust fan for the purpose of ventilation.
' That on 27th May 1977, the aforesaid Mr. Ahmed Faraz was served with proper breakfast and at mid-day he was given the lunch while he remained in the same room where he was lodged at night.
' That the deponent visited the aforesaid Mr, Ahmed Faraz twice while he was lodged in the aforesaid room and inquired if he had any trouble or difficulty whereupon he expressed the desire for a newspaper and a packet of cigarettes. In compliance with his wishes he was provided with The Pakistan Times, and a packet of cigarettes.
' That after lunch the aforesaid Mr. Ahmad Faraz was sent to Mansar Camp under an escort.
' That from the time of arrest till his being sent to Mansar Camp, the aforesaid Mr. Ahmed Faraz remained under my custody and I took every precaution that he was provided with all facilities more than he was entitled."
' After the submission of the aforequoted affidavit, the contents whereof to some extent contradicted the statement made by the detenu, the Court expressed surprise and anguish on these contradictions mainly for the reason that two educated persons were not agreeing on questions of fact. It was an unfortunate situation. What further surprised me was that tee learned counsel for the petitioner wanted to cross-examine the Major on the very question whether he himself was present at the time of arrest while the learned counsel for the Federal Government wanted to add something more to the contents of the affidavit by submitting another affidavit which was to include some more averments with regard to the same incident of arrest not included in the earlier submitted affidavit. I had, on the previous day when examining the detenu, given him a warning that if he would not tell the truth he might be proceeded against by this Court under section 476, Cr. P. C. By way of abundant caution and on account of the fact that a Military Officer of the rank of Major and that too, from its Intelligence Department was involved, I gave similar warning this time but in camera. After some discussion on the contents of the affidavit which had already been filed from the respodents side, both the learned counsel made formal statements-one, stating "as at present advised" not to cross-examine the Major and the other, not to produce the additional affidavit. Both the learned counsel made statements with regard to another controversy as to what had happened before the Supreme Court with regard to the production of the documents which for the first time were produced in this Court. Copies of aforementioned three documents were formally placed on record. They are -
(I) The direction dated 25-5.77 from the Federal Defence Secretary to the Chief of the Army Staff, to the effect that Mr. Ahmad Faraz had written a poem (copy ware enclosed) which he read out to a serving Army Officer and some other persons and later handed over a typed copy of the same.
"This is a case of clear cut seduction. He has a reputation which supports his seditious outlook. If deterrent action is not taken against him immediately, it, may encourage others to follow his lead.
And we may be faced with a spate of subversive poetry". It was, accordingly, thought imperative that Mr. Ahmad Faraz might be "dealt with and tried in accordance with the provisions of the Pakistan Army Act." He was ordered to be "taken into Military Custody and investigation startei forthwith".
(ii) The warrant of arrest dated 25-5-77 issued by Brig. Tassadeq Hussain Authorised Officer Commanding 706 Field Intelligence Unit to arrest Mr. Ahmad Faraz from his residence on the complaint of seducing Armed Forces Personnel. Reference was made in the warrant of sections 2
(1) (d) and 59 of the Pakistan Army Act.
(iii) A letter issued by the A. G's. Branch of the Army General Headquarters making Lt.-Col. Muhammad Akram of J. A. G. Branch available to Headquarters 10 Corps for the purpose of recording the evidence against Ahmad Faraz. It is mentioned in this letter that relevant papers pertaining to the case were also handed over to Lt. Col. Muhammad Akram.
8. On the same 'day, 1 e. 9`6-77, one of the learned counsel for the respondents undertook to submit written statement by next day, i,e,, 10-6-77. Learned counsel for the petitioaer had, at an earlier occasion, given a verbal notice that he would also rely on section 491, Criminal Procedure Code for seeking the same relief as prayed for in the writ petition ; of which, request the learned counsel for the respondents had taken due note. Learned counsel for the petitioner; however, was told that unless a written application in this behalf is made, no submissions would be entertained under section 491, Criminal Procedure Code. That written application has been presented formally in due course. It is Criminal MiEC No, 310/H of 1977. This petition which is also supported by a detailed affidavit includes the same formal averments as in the 'writ petition as also further additional averments and grounds presumably in view of the information laid before the Court during the proceedings en the writ petition. As mentioned in an earlier part of this judgment, the name of the Federal Minister has been formally disclosed in this second petition. The grounds in this new petition are more precise an by and large represent the main arguments raised from the petitioner side.
9. The written statement filed from the respondents side contains elaborate preliminary objections.
The arguments from the respondents side also followed the line taken in these objections. On merits, "the insinuation towards a 'Federal Minister' as made in paragraph 2 (b) of the petition was denied in the written statement as baseless and incorrect. With regard to the manner and incident of arrest, reliance was placed on. The contents of affidavit sworn by Major Muhammad Matlub. The allegation in the writ Petition that the arrest and detention was a result of bad faith was also denied in the written statement. With regard to the claimed innocence of the detenu, reliance was placed from the respondents side on the circumstances leading to arrest and detention, already referred to, as also the provisions of law in that behalf, namely, section 31 read with section 2 (1) (d) of the Pakistan Army Act.
10. Learned counsel from both the sides addressed lengthy arguments. In fairness to the Army Authorities, I also afforded ample opportunity to Lt.-Col. Muhammad Akram of the J. A. G. Branch to address the Court on various aspects of the case. It may also be mentioned that as and when the learned counsel for the respondents felt difficulty in explaining some material relating to the Army Law and procedures, the Court permitted Lt.-Col. Muhammad Akram to take his (learned counsel's) place. It may also be straightway acknowledged that apart from the assistance given by all the learned counsel from both the sides, Lt. Col. Muhammad Akrarn rendered valuable assistance.
11. The main questions which need to be answered are : One, whether clause (3) (read with clause (5) of Article 199 of the Constitution bars the jurisdiction of this Court to grant relief in the nature of habeas corpus under clause (1) (b) (I) thereof ; and ' Two, if this Court has the jurisdiction to grant the relief claimed, whether the arrest and detention impugned in this petition is without lawful authority and/or in unlawful manner.
' Several subsidiary questions arise which will be stated in duo course of the discussion.
12. Clause (3) of Article 199 reads as follows : 199.-(1) . . . . . . . . . .
(2) . . .
(3) An order shall not be made under clause (I) 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 member of the Armed Forces of Pakistan or as a person subject to such law, (3-A) . . . .
(3-C) . . . . .
(4A) . . . t ' For the purpose of interpreting a phrase in the above-quoted clause relevant in the present case, namely, "a person subject to such law-(law relating to ary of the Armed Forces of Pakistan)", reliance was placed from the respondents side on clause (d) (i) of subsection (1) of section 2 of the Army Act. It reads as follows:- "2. Persons subject to the Act.-(1) The following persons shall be subject to this Act, namely :-
(a) . . . . . . 1 (b). . . . 1 (bb)
(c)
(d) persons not otherwise subject to this Act who are accused of-
(I) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or (clause (d) (it) relates to an offence under the Official Secrets Act, 1923 when committed in relation to defence establishments).
' Subsections (2) and (3) are not relevant for the present discussion. The other provisions contained in subsection (1) relate to officers -of the Pakistan Army persons enrolled under the Indian Army Act, 1911 before a specified date and serving with the Pakistan Army as also persons- enrolled under the Army Act ; persons subject to the Pakistan Navy Ordinance, 1961 and Pakistan Air Force Act, 1953 when seconded for service with the Pakistan Army in accordance with regulations ; and 'persons not otherwise subject to the Army Act, who on active service, in camp, on the march, or at any frontier post are employed by, in or are followers of, or accompany any portion of the Pakistan Army, Clause (d) was ad led by an Amending Ordinance No, Hi of 1967. Section 59 of the Army Act was also amended by Ordinance No, IV a 1967 so as to bring it in conformity with the earlier amendment made in section 2 of the Act. Sansection (4) thereof which is relevant reads as follows : "59. Civil offences. -(1) . . . .
(2) . .
(3) . . . . .
(4) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly."
13. The bar contained in clause (3) as amended read with clause (5) of Article 199, came up for consideration before the Supreme Court in Brig. (Reid.) F.
8. All and another v. The State (1). It was noted that somewhat similar provisions contained in Article 98 (3) (a) of 1962 Constitution were considered in the case of Muhammad Akram Khan v. Islamic Republic of Pakistan (2) wherein it was held that the bar operates only in a case where the action has been taken against a member of a defence service in relation to him exclusively as a member of such a service in respect of matters specified in clause (3). After nothing the comparison between clause (3) of Article 199 of the present Constitution as originally enacted and clause (3) of Article 98 of the 1962 Constitution, it was particularly noticed that the First Amendment to the present Constitution (in 1974) provided the bar also in relation to a person "who Is for the time being subject to any law relating to and of these forces" even in respect of "any section taken in relation to him. .. As a person subject to such law". Although the reference to clause (5) of Article 199 was relevant in the said case of F. B. Ali and in
(1) PLD 1975 SC 506 (2) PLD 1969 SC 174 that context it was noted that under the said clause a Court or Tribunal established under a -law relating to the Armed Forces is excluded from the category of "persons" against whom any direction or order can be issued under Article 199, but in the present case the action impugned or sought to be corrected has not been taken by any Court or Tribunal. The case is still, to take it at the highest plane, at the investigation stage. One of the arguments raised from the respondent side in the present case was also directly considered in the case before the Supreme Court, It is contended that the expression "relating" in clause (3) (as amended) is wide enough to cover all actions in relation to a person who is even for the time being subject to Army Act. In this behalf, their Lordships were pleased to hold as follows "However wide the connotation of these words may be they cannot possibly act as a bar where tie action impugned is itself without jurisdiction or corals non judice or has been taken mala fide as held by this Court in State v. Ziaur Rehman PLD 1973 SC 49. On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Forces. The action must however, be one which is taken while he is so subject and not before he becams so subject or after he ceases to be so subject." (Underlining* is mine)
Thus, keeping in view the ruling of the Supreme Court" particularly the underlined* portion, it is obvious that if an action suffers from certain infirmities including absence of jurisdiction, clause (3) would not operate as a bar. I, therefore, bold it accordingly in this case that into is established that the action impugned in this petition is found as without jurisdiction (leaving aside the other alleged infirmities including lack of bona fides this Court would be competent to grant relief if it is otherwise found necessary.
14. It does not need any more elaborate discussion to further hold that in order to oust the jurisdiction of this Court under clause (1) of Article 199, it is imperative for the respondents in this case to show that the impugned action taken against the detenu including arrest and detention was and is being taken "while he is so subject (to a law relating to the Armed Forces) and not before he becomes so subject".
15, Lengthy arguments were advanced from both the sides on the interpretation of the phrase "subject to such law" used in clause (3) of Article 199. Respondents' learned counsel vehemently contended that while determining the scope of the expression "subject to", its definition direct or indirect given in "such law" cannot be ignored. In other words, according to him, in order to discover the true meaning of the phrase, clause (d) of subsection (1) of section 2 of the Army Act will have to be imported and relied upon. Learned counsel for the petitioner, on the other hand, contended that there is no justification for applying a definition in a subordinate legislation for interpreting a constructional provision and that too which excludes the jurisdiction of the superior Court-such provisions are strictly construed and applied within a narrow compass. I do not consider it necessary in the present case to enter into the aforenoted wider controversy and proceed to examine the scope of the relevant phrase by application of the definition given in the Army Act.
[Here in italics]
15. It has not been denied that civilians-term used in a general sense-as distinguished from the personnel in the Armed Forces covered under clauses (a), (b) and (bb) as also persons other than those belonging to the Armed Forces who are employed or arc in the service of or followers of the Pakistan Army, were not originally included in the various categories of persons subject to the Army Act. It is also an admitted position that all such civilian have not been made so subject, in all matters, to the Army Act. Only two categories of offences are mentioned in sub-clauses (f) and (if) of clause (d) of subsection (1) of section 2 in connection with which the so-called civilians are made so subject. It is further to be noted that the specified offences are also offences under the ordinary la :v and, but for this special provision, are tribal in ordinary course of criminal proceedings under the general codes and procedures applicable to all civilians. Thus, essentially clause (d) provides an exception and the same has to he construed strictly. Due benefit to the persons concerned in this behalf cannot be withheld on any general consideration which are obvious and which it is not necessary to spell out. The above course of action is also necessitated by the use of the phrase "persons not otherwise subject" prefixed as a starting point for bringing the so-called civilians under the Army Act.
16. Keeping the foregoing, principle in view, it is necessary to give content and reading to each provision of this all important clause (d) of subjection (1) of section 2 which makes persons not otherwise subject to the Army Act and its provisions ; with which such persons, undoubtedly, are ordinarily not so familiar ; as these persons, as ordinary citizens, are familiar with the other prevailing laws relating to crime, its detention and punishment. Clause (d) clearly specifies that a person whole, is not otherwise subject to the Act would become so subject only when He is Accused of" one or more offences mentioned therein.
17. As already indicated, if given full content to each word used in the above expression, it would mean ; that even if there is a general accusation against several persons named or unnamed, unless the particular person concerned is brought under accusation, he would not be subject to the Act. Such cases can arise in number--when there is a general F. I. R. In either of the several senses ; for example, names of accused are not mentioned and the Investigating Agency is trying to locate and identify the culprits or when some of the culprits are mentioned and their abettors are not known or remain unidentified ; or the offence is a continuing one and the persons who could be brought under accusation remain untraced-some not only as unnamed but also (keeping in view the nature of the crime) might be committing the offence after the lodging of the F. I. R. Say, in a case of complaint regarding seducing army personnel from their duty, the process of seduction if it is continuing might involve several persons who would he committing the offence after the lodging of the Initial information. Thus, unless the person who is sought to be subjected to the Act, is already a known identified person, he would not be so subject. The verb is" also carries clear meaning. The accusation, the emphasis inherent in the verb 'is' shows, must have already been put to the person who is sought to be subjected to the Act. The mere fact that it would be put or can be or should be put to him is hot enough.
' The next expression "accused of" is undoubtedly very important in so far as the present case is concerned. According to the learned counsel for the respondents, a person is accused of an offers= when for the first time an information is lodged against him and in case of absence of formal information or complaint, when any person in exercise of his subjective mental faculty formulates a complaint of an offence against another person. The first category, according to the argument, would cover all cases of formal F. I. Rs, and complaints. The second category would include, amongst others, cases where one person decides for himself that the other has committed an offence and proceeds to act in a certain manner on the assumption that the other one is an "accused". This is too wide a net which it was never the intention of the t aw-makers, who brought about the amendment (Ordinance No, III of 1967) whereby clause (d) was added to subsection (1) of section 2 of the Act. Pakistan Army Act is a comprehensive legislation dealing with various facts of army Ile. Elaborate rules have been framed thereunder and regulations hove been made to provide for innumerable conceivable situations. It is pertinent to note that no such elaborate provisions have been made anywhere to deal with so-called civilians who fall within the scope of clause (d). For example, no detailed provisions with regard to manner of arrest-close or open-, the manner and place of detention comparable to officers or others and other similar details regarding communications, feeding, clothing, lo Iging of such persons before trial have been made as done in case of other civilians falling under clause (c) and personnel of the Armed Forces.
Similarly, regarding more important questions including those relating to investigation, necessary provisions have not been made dealing with the so-called civilians falling under clause (d) in particular. Lt.-Col. Muhammad Akram has made a commenable effort to show that the authorities dealing with such persons would, in their discretion, be competent to give all facilities and properly teat them qua arrest, detention and investigation ; even in the absence of clear directions in the Act, Rules, Regulations and Instructions in that behalf. And that is why, according to him, the detenu in this case has been treated as an officer, though without there being any direction in any law in that behalf, and given the facilities and treatment in arrest, detention and investigation accordingly. But this does not satisfy the question generally arising in the foregoing discussion.
19. One answer to which there does not appear to be any rebuttal be that by virtue of the very language used in clause (d), a person would not be subject to the Act unless he is accused of in a formal sense ; and it then he would not have to be dealt with under the Military Law as such.
Therefore, till the precise stage of the formal accusation, the person would not be so subject and that being so, many complications which otherwise can be visualised would not arise. Accusation is a stronger phase than complaint. Although both the words carry the meaning of a charge, yet case of complaint it relates to a stage when the charge is still to mature into an accusation. This distinction can be spelled out from the combined reading of rules 13, 15 and 19 of the Pakistan Army Act Rules. Under rule 19, a charge sheet is required to contain the whole issue or issues to be tried by a Court Martial at one time and it has been defined to mean "an accusation contained in a charge-sheet that a person subject to the Act has been guilty of an offence". In a note appended underneath this rule in the Manual of Pakistan Military Law prepared by the General Headquarters of the Army in its Judge Advocate-General Branch, it is clarified that the charge referred in rule 19 is the formal written charge upon which the accused is to be tried, as distinct from the charge or complaint mentioned in rules 13 and 15 which give rise to preliminary investigation. The reading of notes under rules 13 and 15 also supports the above interpretation of the word "citrate". Thus, the words-'complaint', 'charge', 'accusation'-have been used at different places conveying different senses. Same conclusion would be reached if the provisions of section 73 of the Army Act and the departmental interpretation thereof is kept in view. Section 73 reads as follows :- "73. Custody of offenders.-(1) Any person subject to this Act who is charged with any offence may be taken into military custody.
(2)Any such person may be ordered into military custody by any superior officer, or except in the case of a person subject to this Act as an officer, by any member of the military, naval or Air Force Police.
(3)An officer may order into military custody any officer, though he may be of a higher rank, who is engaged in a quarrel, affray or disorder."
' In the note made under this section by the I. A. G. Branch of the General Headquarters in the Manual, it has been distinctly clarified that the charge referred to in subsections (1) and (2) of section 73 as also in rules 13 and 15 which relates to arrest and investigation is different from that referred to in rule 19. "The latter is the formal charge preferred by the Commanding Officer and set out in the written charge-sheet if and when it is decided to send the accused to trial. The former is simply a complaint that an offence has been committed" (underlining is mine). In the light of the foregoing discussion relating to the addition of clause (d) in subsection (1) of section 2 of the Army Act and the various shades of meaning which can be given to the words "he is accused of" consistent with the salutary principles of interpretation of such like phrases, the expression "accused of" will have to be read as convoying the formal accusation levelled after due investigation against a person who is not otherwise subject to the Act. There can be two stages when accusation in the form of a charge-sheet can be put to a person not otherwise subject to the Act : one, prior to his arraignment and two, at the time of his arraignment. While in the former case, the accusation is conveyed to him and it is open to him to reply to it or not, in the latter case the same is read out to him in a formal manner in presence of the forum competent to try him. In my view, a person not otherwise subject to the Act would become so subject only when the accusation is put to him in a formal manner with a view to informing him that the prosecution has decided to arraign him before the forum competent to punish him.
20. Notwithstanding the distinction sought to be drawn by the learned counsel for the respondents, the above view has the support of the ruling in the case of F. B. Ali. According to their Lordships, the accusation in that case was made on 4-7-73 when the charge-sheet was prepared in case (the accusation is treated as having been made on the framing of the charge-sheet) or on 9-7-73 when the charge-sheet was read out to the accused, A specific argument was raised from the State side that the lodging of the F. I. R. Simpliciter would mean the making of the accusation.
Reliance in that behalf was placed on a Full Bench ruling of this Court in Nur Muhammad v.
Commtssioner, Sargodha Division (1) wherein the meaning and scope of the words "any person accused of an offence" used in section 3 (1) of the West Pakistan Criminal Law Amendment Act (VII of 1963) having been considered, it was held, on comparison of language between two subsections of section 3 of that Act, that the words in subsection (1) were of wider connotation than the expression "the accused" used in subsection (2). It was accordingly found that the latter expression-"the accused", used in *[Here in italics]
(1) PLD 1968 Lab, 1441 subsection (2) was limited to only those persons "who are actually sent up for trial". This interpretation of subsection (2) of the 1963 Act was approved. However, the observation in the Lahore case to the effect that the framers of the Criminal Procedure Code have employed the word 'accused' or the words 'person accused of an offence' or the term 'offender' more or less as being interchangeable terms" was not approved. The following observations in the leading judgment are relevant in the present discussion :- "In my view the word accused' is used in the Criminal Procedure Code in different senses at different places. In Chapter XIV, (sections 167, 159, 170, 173) it is used to designate supposed offenders who in Chapter V have been called 'persons arrested'. In sections 344, 496 and 497 also the words are used in the same sense but in sections 342 and 343 it clearly bears a different meaning. It is for this reason, that in the case of Karam Bah! v. Emperor AIR 1947 Lah. 92, Teja Singh and Sherif, JJ. Bed that "according to the provisions of the Criminal Procedure Code a person becomes an accused person immediately after he has been arrested by the police for an offence which formed the subject-matter of investigation by them'. In the case of Empress v. Mona Puna I L R 16 Bom. 661 it was held that an accused is a person over whom the Magistrate or other Court is exercising jurisdiction. This has been followed by the Calcutta High Court in Jhoja Singh v. Empress I L R 23 Cal. 493, by Allahabad High Court in Empress v. Mutasaddi Lal IL R2 All. 107 and by a Full Bench of the Nagpur High Court in Amdumiyan Guljar Patel v. Emperor A 1 R 1937 Nag.
17.
' In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such a person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an 'accused' as a person 'charged with a crime' and an 'accusation' as an 'indictment'. Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore, that a person becomes an accused only when charged with an offence. The Criminal Procedure Code also uses the word 'accused' in the same sense, namely a person over whom a Court is exercising jurisdiction."
21. The above quoted interpretation by the Supreme Court of the relevant expressions practically concludes the discussion on the question as to what is the meaning of the expression "accused of" in clause (d) of subsection (1) of section 2 of the Army Act. The contentions of the learned counsel for the respondents : that in view of the consideration of the alternative position in the ruling of their Lordships it should not be considered as law declared, or that it related only to one offence for which the accused in F. B. All's case were tried and not to the other offences ; and that the leading judgment should not be considered as representing the opinion of majority of learned Judges of the Supreme Court hearing the case of F. B. Ali, do not merit any detailed consideration. The above quoted ruling on the question of interpretation of the words "accused", "accusation" and other similar expressions was necessitated on account of the use of the expression "accused of" in clause
(d) of section 2 (1) of the Army Act. The alternative position was mentioned in the judgment only as a supporting argument and not with a view to dilute the effect of the ruling on question of interpretation given in the above quotation. I also do not agree that the ruling was given only in the context of the offence under section 121-A of P. P. C. As earlier noted, even before commencing the discussion on the interpretation of the word "accused", the two dates with regard to the accusation-one 4-7-73 and the other 9-7-73-were mentioned in the case as representing the time qua the accusation and it was in that contest that the question of interpretation of the words "accused", "accusation" and other similar phrases arose. With respect, it is pointed out that the leading judgment written by the learned Chief Justice was agreed to by the first learned Judge as also by the fifth learned Judge who in rather more expressive language agreed with the conclusions reached as also the reasoning given in the leading judgment. It is &so with respect pointed out that the observations in separate notes by the aforementioned two learned Judges who agreed with the leading judgment were on other questions different from the one under discussion in this case. It is also pointed out with profound respect that the dissenting judgment on this question by one learred Judge in F. B. Ali's case relied upon by the learned counsel for the respondents, wherein the view taken in the Lahore case qua interpretation of subsection (1) of section 3 of the West Pakistan Criminal Law Amendment Act (VII of 1963) was adhered to, would rot in the context of the foregoing analysis of the ruling, control the interpretation of the expression "accused of" used in section 2 (1) (d) of the Army Act. It is an admitted fact and is clear from the statements of the detenu and Lt.-Col. Muhammad Akram recorded in this Court that the stage of putting the accusation in the sense of a formal charge-sheet- p whether at arraignment or before arraignmen:-has not reached. The detenu is thus not subject to the Army Act and not that being so, there is no bar as contained in clause (3) of Article 19) of the Constitution for this Court to pass proper orders under clause (1) thereof.
21-A. As on the question of interpretation of clause (d) of section 2 (I) of the Army Act and the expression "subject to such law" as contained in clause (3) of Article 199 it has been held that there is no bar to the jurisdiction of this Court in entertaining, hearing and disposing of the writ petition, it is not necessary in this context to examine the general questions ; whether the impugned action is mala fide, coram non fudice or without jurisdiction so as to see whether the jurisdiction of this Court is completely barred.
22. Learned counsel for the respondents also relied on subsection (4) of section 9 of the Army Act to contend that by virtue thereof clause (d) of section 2 (t) would operate retrospectively so as to authorise Army Authorities to try and otherwise deal with a person qua an offence which was committed before he became subject to the Act. On face, the argument appears to have some force. But on proper scrutiny, it is found not to have any substance. The first part of subsection (4) clearly provides that when a person becomes subject to the Army Act by reason of the application of clause (a) of section 2 (1), only then he shall also become liable to be tried or otherwise dealt with with regard to an offence which might have been committed prior to his having become so subject to the Act. Thus, it is a condition precedent that the person concerned should, in the first instance, become subject to the Act. He cannot become so subject unless he is "accused of" an offence mentioned in clause (d) of section 2 (1). And unless this important process/stage is gone through, that person cannot tried or otherwise dealt with qua the other offences which might have been commi'ied prier to his becoming so subject to the Act. In this case, as already held, the detenu has not yet become subject to the Army Act. That being so, no question arises of his being dealt with under the Army Act with regard to any offence. It is, however, observed that if and when he becomes subject to the Act it will be possible for the authorities concerned to try him or otherwise deal with him under the Act for offence(s) committed prior to the date of his becoming so subject.
23. Another argument raised from the respondents side is that even if the detenu has not become "subject to such law", as he is now being dealt with by the Army Authorities, therefore, any order passed in relation to the detenu would also be indirectly" in relation to a person who is member of the Armed Forces of Pakistan" and thus the jurisdiction of this Court would be barred. The argument is fallacious. Clause (3) deals with two broadly divided categories of persons : one, belonging to Armed Forces ; and two, those who are otherwise subject to the law relating to the Armed Forces.
The bar with regard to the first category would be in respect of terms and conditions of service, any matter arising out of service or any action taken in relation to the person concerned as a member of the Armed Forces ; while the bar in connection with the other category would be "in respect of any action taken in relation to him-----as a person subject to such law". It is obvious from the above analysis that the bar would not be attracted merely because the detenu is being dealt with by authorities who belong to the Armed Forces, because the action impugned i,e,, arrest and detention does not relate to the above enumerated matters relating to the members of the Armed Forces.
24. The next question arises whether the arrest and detention of the detenu by the Army Authorities, which has been impugned in this petition and which as found above has taken place before the detenu has become subject to the Army Act, is not without lawful authority. It is not necessary to go over the entire question again. It has been found above that the detenu is not at present subject to the Army Act. It is an admitted position that arrest and detention in military custody is permissible only if and when a person becomes subject to the Army Act. It is so provided in Chapter VIII thereof.
Section 73 of the Army Act, as quoted above, provides that any person subject to the Act who is charged with an offence can be taken into military custody. And any such person can also be ordered into military custody by any superior officer. There is no further need for any elaborate discussion to hold that the Federal Defence Secretary was not competent to order the arrest of the detenu nor the other military authorities were competent to direct or effect arrest in pursuance of the above order nor they are competent to keep him in custody unless he becomes subject to the Army Act in the meaning and sense discussed above. It is accordingly held that the arrest and detention impugned in this petition are without lawful authority.
25. During the discussion although a formal argument was not raised, an apprehension was expressed that it might be difficult to take various steps in the investigation without apprehending the person who is likely to become (as interpreted) subject to the Army Act by application of section 2 (1) (d) of the Act. From the procedure relating to investigation of crime by Army Authorities described by Lt.-Col. Muhammad Akram by making due reference to the relevant provisions in the Act and the rules, it has become abundantly clear and is also so stated in the Manual (Chapter III, Arrest and Investigation of charges, item (11 Arrest-Para. 1) that : "whenever any person subject to the Army Act is charged with an offence, he may be taken into military custody, see section 73, which means his arrest or confinement according to the usages of the service, but such a course is by no means obligatory ; if the offence is not serious it may be investigated and disposed of without placing the offender in arrest". Thus, the investigation would not be hampered by the mere fact that the alleged offender is not physically confined. In else of an insurmountable difficulty however, the Army law has not left the authorities without a remedy in a case like the present one. Section 76 of the Act makes it a duty for all Magistrates and Police in the civil administration to aid the military authorities in the apprehension and delivery to the military custody of a person who is subject to the Act, on receipt of a written application to that effect. After the communication of the formal charge-sheet/accusation, as discussed above, when an individual becomes subject to the Army Act, the military authorities would be competent to arrest and detain him after that point of time. Prior thereto, there does not appear to be any bar to their collecting evidence and doing all necessary things which aid the process of investigation ; but without depriving the person concerned who has not yet become subject to the Army Act, of any of his valuable rights relating to person and property. It may also be remarked that conveying informally the information to such a person who has not yet become subject to the Act, with regard to the allegation made against him so as to elicit explanation which might be of advantage to him in the process of the investigation would not, in a given case, deprive him of any valuable right. In this context, it might not be illegal for the Army Authorities simply to examine a person who has not yet become subject to the Act but against whom an information has teen laid with regard to an offence covered by cause (d) of section 2 (1).
26. To be fair to the learned counsel for the petitioner, it needs to be noted that during the proceedings on this petition conducted before the commencement of the arguments, he reserved the right of the petitioner/ detenu to challenge the validity of the amendment whereby clause (d) was added to section 2 (1) of the Act. Indeed, he made some other reservations as well but it is not necessary to mention them all, except three. Firstly, he reserved the right to urge against the position taken from the respondents side (particularly in the order passed by the Federal Defence Secretary) qua reputation of the detenu. To be precise, he thought that there was no justification for making any such assumption. It is undoubtedly an undeniable right of every person to enjoy good reputation. But it will not be out of place to remark that Courts are not the only forum through which reputation can be retrieved. In case the detenu feels that some impression which according to him is wrong, has been formed by an institution or a section of the public, he has several means at his disposal to remove the impression-one obvious means is a public declaration through ordinary channels of mass media and it cannot be said that the person in position of the detenu who is stated to be a well-known poet, is not in a position to make use of the mass communication system of the country. Another reservation made by the learned counsel for the petitioner is in regard to the authorship of the disputed poem. He as well as the detenu made it clear that the detenu does not own the same as his production. This Court is not concerned in these proceedings with such like factual controversies. However, as observed earlier, there is nothing to prevent the detenu from making public declaration in this behalf and he can do so through an additional more effective method available to him, namely, of writing poetry expressing his true feelings towards the Armed Form. In case the poem in dispute has not been written by him or does not represent his views. This, instead of opening any sore wound would undoubtedly help in restoring the mutual faith and confidence in our National Armed Forces which, whatever the source of the poem, might have suffered injured-feelings. Yet another reservation made by the learned counsel is with regard to the assertion that the detenu has been subjected to torture and solitary confinement during the period of detention. Some of the allegations made by the detenu in this behalf have not been specifically denied. Although Lt.-Col. Muhammad Akram has tried to explain that the authorities could not take the risk of permitting the detenu to converse with the army personnel in the camp, yet the detenu cannot be denied the right to urge these points. If the army personnel could not be permitted to meet and talk to the detenu, there was nothing to prevent the authorities concerned from permitting him to talk to his relations and friends. Solitary confinement is a serious deprivation. Similarly, other deprivations mentioned in the statement of the detenu, if established, might amount to torture, if not physical, at least mental. In the circumstances as in the present case, all types of solitary confinement and/or deprivations are prohibited unless it becomes necessary to resort to the same by way of punishment in accordance with law. This subject was discussed in detail in a Division Bench judgment of this Court in Begun Shamim Afridi v. The Province of Punjab through the Secretary, Punjab Horne Department and another (1). It cannot be said that the authorities concerned were unaware of the law laid down in the cited ruling. It will be to their own advantage that such like declarations of law, unless superseded by another law statutory or precedent, should be followed in letter and spirit. Faith shown to proceedings of superior Courts by citizens as also institutions brings more cohesion and is undoubtedly towards further advancement of a civilised society. It is in pursuance of these principles that our Constitution provides, in Article 190, that all executive and judicial authorities throughout Pakistan shall act in aid of Supreme Court. Article 150 falling under Part "Relations between Federation and Provinces" and Chapter 2 heading "Administrative relations between Federation and Provinces", provides that full faith and credit shall be given throughout Pakistan to public acts and records, and judicial proceedings of every Province. As the detenu has been ordered to be released on other grounds, I do not consider it necessary to make any further comment on this aspect of the matter.
27. The last remark needs to be made in connection with the conduct of certain authorities in their failure, as distinguished from refusal, to produce the detenu in this Court in pursuance of the orders passed on I-6-1977. The details of the proceedings have been given in the opening pares. Of this judgment with the clear purpose of highlighting the procedures which are normally adopted in habeas corpus petitions moved in this Court. It would be observed that after taking note of the assertions in the petition and the affidavit as also after questioning the petitioner, the main petition was admitted with a direction to issue notice to the respondents. It was then directed that the detenu be recovered, for production in the Court, so that be may be dealt with in accordance with law. As already noted, it appeared from the report of the bailiff that the Commander of the Mansar Camp tried to obey the order of the Court in so far as it was in his power. In the peculiar circumstances of the case, it appears that he was forced to reek further instructions/permission from his superior authorities. It also appears from the report that the Commander, in order to obey the order of the Court, also made personal contacts with the superior authorities. And it cannot be
(1) PLD 1974 Lab, 120 ignored and has to be appreciated that the military authorities themselves did not want to disobey the order of the Court. As it has been explained, it was on account of some advice that the failure in the compliance of the order took place for some time. If the advice was not to produce the detenu in pursuance of the order, it was clearly misguided. But if it was to the effect that the order could be brought under challenge in proper proceedings before the next higher forum in the hierarchy of Courts, no possible exception can be taken to it. In either case, it was necessary for the authorities concerned to avoid complications as also inconvenience by putting an appearance in the Court as soon as it was possible. It is also necessary to observe that the power to decide whether the Court has jurisdiction in a certain matter or not vests in itself, subject of course to review by the appellate Court. The other authorities, howhighsoever they may be, cannot sit in judgment over that of the Courts. Such assumptions and practice can lead to failure of the entire judicial system and, in consequence thereof, to anarchy. I deem it necessary to close this aspect of the matter by repeating the same observations as have been made in the last part of the preceding paragraph.
28. In the light of the views expressed in this judgment and with the foregoing remarks, this petition is allowed with the order : that the preliminary objection based on clause (3) of Article 199 of the Constitution that this Court has no jurisdiction in this matter, is overruled and it is held that the detenu, for tie time being, is not a person subject to the Army Act ; while, with respect, adopting the reasons with regard to the interpretation of the expression "accused" given in the judgment of the then learned Chief Justice in the case of Brig. (Retd.) F. B. Ali and another v. The State as also for the reasons stated above, I hold that the detenu, Mr. Ahmed Faraz, at present is not subject to the Army Act. He is ordered to be released in this case forth with ; application under section 491, Cr. P. C. (Cr.
Misc. No, 310/H-77) filed on behalf of the petitioner is dismissed as infructuous ; the request of the learned counsel for the respondents for a certificate to appeal in the Supreme Court, as required under Article 185 (2) (f) of the Constitution, is granted ; the request of the learned counsel for the respondents to suspend this order is refused. However, in view of the undertaking given by the learned counsel for the petitioner, it is directed that the Army Authorities, when releasing the detenu, shall obtain an address in writing from him on which he could be served. If and when the matter comes up before the Supreme Court for hearing, of which a notice each shalt be served (by the learned counsel for the respondents) on the detenu on the aforementioned address as also on Mr. Abid Hassan Manto, learned counsel for the petitioner, the detenu shall appear in the Supreme Court to receive and obey orders ; there shall be no order as to costa.