KARIMULLAH KHAN DURRANI, J.-This Habeas Corpus petition under section 199 of the Constitution of the Islamic Republic of Pakistan read with section 491 of the Code of Criminal Procedure has been moved on behalf of Akbar Khan son of Mir Ahmad an accused charged for embezzlement in the Allied Bank of Pakistan.
2. The facts material to the matter in hand are that the accused was working as Cashier in Bhana Mari Branch of the said Bank. On 26-7-1979, F. I. R. No. 309" was lodged by the Manager, Allied Bank of Pakistan, G. T. Road Branch, Peshawar in the Police Station, Hashtnagri, Peshawar City alleging embezzlement of cash in his bank by one Iltaf Hussain Cashier. The accused-petitioner was attributed the role of instigation for the said embezzlement in this F. I. R. On the same date the accused-petitioner was arrested by the Police and on the next day was produced before the Illaqa Magistrate who sent the accused to judicial lock-up wherein he remained upto 2-8-1979, when he fell ill and was taken to the hospital. In the meantime another F. I. R. Bearing No. 315 was on 29-7- 1979, lodged in the police station by the bank authorities on the discovery of some more shortage of money in their cash holdings which was, followed by yet another F. I. R., bearing No. 340, dated 13-8-1979. In these F. I. Rs. The main accused were Iltaf Hussain, Ghulam Kibria and Muhammad Khalid. The accused --petitioner was again assigned the same role of instigating the co-accused for embezzlement in the latter F. I. Rs.
3. The accused remained in the hospital for three days wherefrom he was taken to Police Station D, Division, Peshawar and kept there for one night. On the following morning the petitioner was taken to Police Station, Warsak and was kept there for two days and was given beatings by the police official in their attempt to recover the embezzled money. On 7-8-1979, the petitioner was taken to the Martial Law Office, Peshawar, and was remanded to police custody by Martial Law authorities for seven days. During this period, the petitioner was again kept in Warsak and subjected to further torture in order to compel him to confess and to point out the hiding place of money. On 13-8-1979, the petitioner was once again produced before the Magistrate, who sent him to judicial lock-up.
The accused petitioner was, once again, on 15-8-1979, taken out of the Jail and produced to the Martial Law authorities. An army officer on the said day passed an order of remand of the petitioner to police custody, who again took him to Warsak, where according to the petitioner he was again subjected to beating by making him naked.
4. On 19-8-1979, on the preliminary hearing of this application, we passed the order for producing the petitioner before us on this day. Consequently, the petitioner is produced before us. His statement was recorded by us wherein the above-recorded allegations were made on solemn affirmation.
5. From the above narration of facts it is clear that from 15-8-1979, when he was taken out of the judicial lockup for producing him before the Military Court till this day he has remained in the Police custody at Warsak Police Station by virtue of a so-called order of remand passed by an Army officer. This detention is being objected to on behalf of the petitioner on the grounds that, the Military Court had no power during the period of investigation to remand an accused to Police custody that the Military Courts having been established under Martial Law Order 4, have no concern whatsoever with the investigation of the cases and that the functions of a Military Court begins when the Court takes cognizance of the case after the sanction of the relevant Martial Law authorities. In support of these contentions reliance has been placed on Khial Akbar v. The State (PLD 1979 Quetta 96) and Abdul Salam v. Summary Military Court, Sialkot and 4 others (PLD 1979 Lah.
178).
6. In the first two F. I. Rs. The petitioner and his co-accused were charged for offences under sections 409 and 109, P. P. C. But in order to obtain the custody of the person of the accused, in the third and final F. I. R. Martial Law Regulation 10 was added to those sections, obviously with the intention to obtain from the army authorities an order of remand for the Police custody of the petitioner in order to have a licence for the usage of coercive measures to bring about the confession of the accused-petitioner or to compel the petitioner to point out the whereabouts of the stolen money. We would not like to enter into discussion on the question, whether the offences as narrated in the various F. I. Rs., are covered by the Martial Law Regulation No. 10, as any expression of opinion by us at this stage would tend to prejudice the trial. Nevertheless, we are constrained to observe that it was never the intention of the Legislature or legislator to allow the indiscriminate use of Martial Law Regulations by the Police Officers in order to override the requirements of the ordinary law of the land in regard to the matters of detention and remand.
From the statement of the detenu it transpires that he has been constantly and severely subjected to the beatings and torture. The learned Advocate-General appearing on behalf of the State contends that by this remand the police was able to induce the accused to point out a number of deposits of different sums of money in his name in various bank accounts. Be that as it may, it would not give licence to the investigation agencies to indulge into unlawful acts and to keep the accused in unlawful custody.
7. The learned Advocate-General has failed to point out any provision of law or of a Martial Law Order or Regulation empowering a Military Court to remand an accused to the custody of the police for a period of any duration. The only provision of law pressed into service is Martial Law Order 4, as amended and reconstituted by Martial Law Order 37. Paragraph 2 of Martial Law Order 4, on which reliance was placed in this context by the learned Advocate-General, is reproduced here below:- "2.---(1) A Military Court shall have power and jurisdiction to try and punish any person for an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force.
(2) A Military Court may, for purpose of sub-paragraph (1) take cognizance of an offence:-
(a) Upon receiving a complaint of facts which constitute such offence.
(b) Upon a report in writing of such facts made by any Police Officer or any Officer of the Armed Forces.
(c) Upon information received from any person other than Police Officer or an Officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed."
8. By virtue of sub-para. (1) of para. 2, a Military Court has been granted power and conferred jurisdiction to try and punish any person for an offence under any of the Martial Law Regulations or orders or under any law for the time being in force. This power, as is apparent from the wording of the subsection, is confined to the trial and punishment of a person accused of an offence, which could not include the power of investigation. The cognizance of an offence as distinguished from the trial, therefore, by the Court was explained in Khial Akbar's case quoted above on the authority of two cases of Indian jurisdiction, in the following terms:- "What is taking cognizance has not been defined in the Criminal P. C. And I have no desire to attempt to define it. It seems to me clear however that before it cannot be said that any Magistrate has taken cognizance of any offence under section 190(1) (a), Criminal P. C. He must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in subsequent provisions of this Chapter, proceeding under section 200, and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purposes of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. Ordering investigation . . . Under section 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offences."
9. In view of the circumstances of the present case we will not hesitate to hold that obtaining of the order of remand from the Military Court, by the police on 15-8-1979, for the custody of the accused was only a camouflage of taking cognizance by the said Court. The real intention was to deprive the accused-petitioner of his legal right of being produced before a Magistrate or to avail the right for moving any Court of competent jurisdiction for bail. We are fortified in this opinion by Abdul Salam's case quoted above in which it was held that the power of the Military Court did not extend to investigate or hold inquiry into such offences which was committed by the persons who were not subject to the Army Act. The order of remand passed by an officer of the army in the present case, therefore, cannot be considered valid. It was in clear violation of Martial Law Order 4, as amended up to date.
10. As the net result of .The above discussion, we hold the detention of the accused-petitioner in police custody under the so-called order of remand, dated 15-8-79, without lawful authority. As the accused has been charged for certain offences under three different F. I. Rs., it would not be in the interest of justice to set him free. We have been informed a bail application on his behalf is pending before the learned Sessions Judge, Peshawar, let that be decided on merits. In the meantime we deem it appropriate to send the accused-petitioner to the judicial lock-up, so that he may be produced before a competent Magistrate for obtaining a legal order of remand. Before parting with the case, we would make it clear that the allegation of coercion and torture of the accused- petitioner by the hands of the police as revealed in his statement would not warrant any further police custody of the person of the accused-petitioner. The application is accepted in the above terms.
S. G. D.