1. ' The petitioner through this petition has sought the following reliefs:--
(a) That the Honourable Court may be pleased to direct the respondents to register the case against the accused under section 154, Cr.P.C. And take further action against the accused as provided under the law.
(b) Any other relief be granted to the petitioner which the Honourable Court may deem fit and proper under the circumstances of the case.
(c) That the costs of the petition be also awarded to petitioner.
2. ' The brief facts as narrated by the petitioner are that he and his other relatives are residing in Deh Essa Wali, Taluka Ghotki, District Sukkur. On 12-8-1992 at about 6-00 a.m. About 25 to 30 persons of different agencies including army and police raided their houses. They took 10 persons namely Subo, Qamaruddin, Khadim, Haji Khan Mohammed, Haji Abdul Khalique, Bagan, Makhno, Ali Muhammad, Mubarak and Zenal with them. On enquiries by the petitioner and other P.Ws., the officers of Law Enforcing Agencies did not disclose any reason for the arrest of aforesaid persons except that the residents of village were criminals. The petitioner and his relatives contacted high- ups of Police Department but they could not get any clue for their whereabouts. They reliably learnt from some quarters that the said persons were detained at Army Headquarters of Pano Akil. On 20-8-1992 the petitioner and the P.Ws. Ayub, Mirza and Abdul Raheem were summoned at Police Station Ghotki, where S.H.O. Iqbal asked them to take the dead bodies of Subo, Qamaruddin and Khadim. The dead bodies were having bullet wounds on their persons. The S.H.O. Disclosed to them that he does not know the background of their killing but he stated that the dead bodies have been handed over to them by Col. Shahid Pathan. He yet showed his ignorance for the whereabouts of remaining seven persons. The dead bodies were buried by the petitioner and other relatives.
3. Thereafter, they were running from piller to post for lodging of their report but all in vain. The petitioner sent telegrams to the Honourable Chief Justice, High Court of Sindh and other officials.
4. The petitioner has averred that the aforesaid three persons and the remaining seven detenus were neither criminals nor dangerous but they were peasants. Thus, accused have committed cognizable offence, therefore, registration of F.I.R. Be ordered against them.
5. ' Respondent/S.S.P., Sukkur filed his parawise comments wherein he has denied the allegations of arrest of aforesaid ten persons by the officials of Law Enforcing Agencies. The facts as narrated by him are that police received spy information that some dacoits were hiding themselves in the abandoned house of Khair Bux Jagirani within the jurisdiction of Police Station Katcho Bindi. Upon receiving such information, the S.H.O. Katcho Bindi, his staff and members of Law Enforcing Agencies raided the said house on 20-8-1992 at 4-00 hours. The dacoits were directed to surrender. Instead of complying with the direction they opened fire upon police and members of Law Enforcing Agencies. The Law Enforcing Agencies returned the fire. This encounter lasted for about half an hour. During the encounter two dacoits escaped from the scene of offence. The firing was stopped by the dacoits. The members of Law Enforcing Agencies noticed that three dacoits had succumbed to the injuries received by them in the encounter. Heavy caches of arms and ammunition were recovered near the dead bodies with the valuables i.e, watches and golden chains. On the same day at about 10-30 hours relative of the dacoits namely Ayub identified the dead bodies to be of his relatives Qamaruddin, Sobo and Khadim Indhars. It is further stated that during the investigation of Crime No,47 of 1992 under sections 148, 353, 307, 149, P.P.C. Read with section 13-D, Arms Ordinance of Police Station Katcho Bindi pertaining to abovesaid incident it transpired that the abovesaid three dacoits had also participated in the Crime bearing No,106 of 1992 under sections 148, 307, 302, 149, P.P.C. Read with section 13-D, Arms Ordinance of Police Station Pano Akil registered on 5-7-1992. It was famous case of "Baiji Shareef". In the case of Baiji Shareef about 43 persons were abducted and the names of some of the accused were mentioned in the F.I.R. They were Khaliqoo Chacher, Azizullah Chacher, Attaullah Chacher, Akbar Mirbahar, Ghulam Rasool as Commando Shaikh, Abdul Khalique Indhar, Khan Muhammad Indhar, Qamaruddin Indhar, Khadim Indhar, Sobo Indhar, Nazar Muhammad Chachar, Bhuro Chacher, and Manzoor Mirbahar. During investigation some dacoits were arrested on 29-8-1992 by Pano Akil Police. The unlicensed arms were recovered from their possession including the unlicensed K.K. The accused in their inculpatory judicial confession implicated other nine persons including the aforesaid three dacoits who were killed in the encounter. The four arrested accused were identified by P.Ws.
6. Mujeebur Rehman and others in identification test. They were also picked out by the foot-tracker in foot-print test. The three dacoits killed in encounter were nominated as accused by 10 witnesses in their 164, Cr.P.C. Statements. The recovered articles from the dead bodies of the said dacoits were identified by the relatives of the deceased abductees i.e, Mian Abdul Sattar and Saifullah Soomro.
7. P.Ws. Mian Abdul Jabbar and Khalid, the abductees of Baiji Shareef also identified the deceased from their photographs to be of the culprits of Baiji Shareef incident. In the incident of Baiji Shareef, out of 43 abductees, seven persons were killed within the jurisdiction of Police Station Pano Akil, whereas three died in the hospital. Later on 11 abductees were murdered within the jurisdiction of Sadhuja Police Station. The abductees Mian Abdul Jabbar, Rahim Bux Chacher, Mukhtiar Dayo, Naimatullah Soomro and Huzoor Bux Dharejo were got released by the police in an encounter from the custody of dacoits.
8. ' It is further stated in the comments that the petition has been filed to make out a defence and shield the criminals who were killed during encounter. The telegrams, dated 27-8-1992 are afterthought and were sent to malign the Law Enforcing Agencies. The belated petition suggests that entire story is concocted one. The action of the. Law Enforcing Agencies was in discharge of their lawful duties. The petitioner and his associates in order to save themselves from the clutches of law and involvement in Baiji Shareef case, which is subjudiced have filed the present petition.
9. ' It is contended by the learned counsel for the petitioner that because of the involvement of Army Personnel direct complaint cannot be filed against them, moreover innocent villagers were killed by the members of Law Enforcing Agencies and police, therefore, registration of F.I.R. May be ordered.
10. ' Mr. Sher Muhammad Shar, learned A.A.-G. Has contended that the said three persons were killed during encounter with the members of Law Enforcing Agencies. Such report was lodged. The said deceased/dacoits were wanted in the incident of Baiji Shareef in which several persons were abducted and killed. He submitted that the alternate and adequate remedy by way of filing direct complaint is available to the petitioner and he is deliberately dragging this Constitutional petition for the last eight years. He further argued that the present petition against the Army Personnel is not maintainable in law.
11. ' I have heard the learned counsel for the parties and perused the material placed on record.
12. ' It will be pertinent to reproduce hereinbelow the Article 199(3) of the Constitution of Islamic Republic of Pakistan, (1973).
13. "199 (3). An order shall not be made under clause (1) 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."
14. 'The plain reading of the above provision of the Constitution shows that this Court is devoid, of jurisdiction. Any action against the members or persons subject to Army Act, to be taken under Army Act, 1952.
15. ' The sections 2 and 7 of Army Act, 1952 are reproduced hereinbelow for convenience sake:-- "2. Persons subject to the Act.--- (1) The following persons shall be subject to this Act, namely---
(a) Officers, Junior Commissioned Officers and Warrant Officers of the Pakistan Army;
(b) persons enrolled under the Army Act, 1911 (VIII of 1911), before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;
(bb) persons subject to the Pakistan Navy Ordinance, 1961 (XXXV of 1961) or the Pakistan Air Force Act, 1953 (VI of 1953) when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct;
(c) persons not otherwise subject to this Act, who on active service, in camp. On the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;
(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
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft ' or otherwise in relation to the naval, military or air-force affairs of Pakistan, an offence under the Official Secrets Act, 1932; or
(iii) an offence punishable under sections 123-A, 123-A 124-A, 143,144, 147, 147, 148, 152, 153-A, 188, 193, 224, 225, 283, 302, 304, 307, 325, 326, 332, 342, 353, 364, 366, 376, 392, 395, 396, 397, 431, 435 or 536 of the Pakistan Penal Code (Act XLV of 1860), or the Pakistan Arms Ordinance, 1965 (W.P. Ordinance, XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or any Rule made thereunder or the High Treason (Punishment) Act, 1973 (LXVIII of 1973), or the Prevention of Anti-National Activities Act, 1974 (VII of 1974), or an attempt or conspiracy to commit, or an abetment of, any of the said offences;
(iv) persons not otherwise subject to this Act who are accused of having done any act with intent to impair the efficiency or impede the working of, or to cause damage to,--
(i) any building vehicle, machinery apparatus or other property used, or intended to be used, for the purposes of the State or any local authority;
(ii) any railway, as defined in the Railways Act, 1890 (IX of 1890), road, canal, bridge, culverts, tramway, road, canal, bridge, culvert, causeway, port dockyard, lighthouse, aerodrome, or any telegraph, telegraph line or post, as defined in the Telegraph Act, 1885 (XIII of 1885), or any wireless installation;
(iii) any vessel or aircraft or rolling stock of a Railway or tramway;
(iv) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewage works, mine or factory;
(v) any prohibited place or protected place that is punishable under any rules made under the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or an attempt or conspiracy to do, or an abetment of any such act;
(e) persons not otherwise subject to this Act who belong to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December, 1971;
(2) Every person subject to this Act under clause (a) or clause (b) or clause (e) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.
(3) Every person subject to this Act under clause (bb) of subsection (1) shall remain so subject during the period of his secondment to the Pakistan Army."
16. "7. Power to declare persons to be on active service.-- Notwithstanding anything contained in clause (1) of section 8, the Federal Government may; by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act."
17. ' The perusal of the above provisions of law reveals that the Courts created under general or local law cannot take cognizance against the member of any Law Enforcing Agency.
18. ' The section 139, P.P.C. Further envisages that the persons subject to Army Act cannot be punished under Pakistan Penal Code. In this context the section 139, P.P.C. Is reproduced hereinbelow in extenso:-- "139. Persons subject to certain Acts.--- No person subject to the Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953), or the Pakistan Navy Ordinance, 1961 (XXXV of 1961), is subject to punishment under this Code for any of the offences defined in this Chapter."
19. The upshot of the above discussion is that the jurisdiction of this Court as well as of the subordinate Courts for the trial and punishment of the persons subject to Army Act, 1952 is barred by law.
20. Therefore, the remedy could only be exhausted at the proper forum provided under law.
21. ' It is well settled that the Constitutional jurisdiction is a discretionary one and is intended to administer the cause of justice and not to promote and encourage injustice. The exercise of Constitutional jurisdiction in the matters where factual controversies are involved between the parties would not be justified. There is nothing on the record which could show or suggest that the concerned authorities were moved for action against the members of Law Enforcing Agencies who were subject to Army Act, 1952. The averments made in the petition and the pleas raised in the comments filed by the respondent are extremely controversial and disputed.
22. Consequently, the present Constitutional petition is misconceived and stands dismissed with no order as to costs.