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Petitioner: Syed MUHAMMAD ANWAR SHOHRAT BOKHARI VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Lahore High Court Judge(s): M. S. H. Qureshi Title:Syed MUHAMMAD ANWAR SHOHRAT BOKHARI vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLD 1981 Lahore 742 Result: Order accordingly Judgment JUDGMENT This is a petition moved under Article 199(I)(b)(i) of the Constitution by Syed Muhammad Anwar Shohrat Bukhari, husband of Mst. Farkhanda Bokhari, alleging that she was taken into arrest by a Police party without any warrant of arrest, from her house at A.I Manzil, 8-A, Mohni Road, Lahore, at 3 a.m. On 6-1-1981, that in spite of the petitioner's approaching the Police Officers later, her whereabouts were not disclosed and that according to his impression she had been taken to the Lahore Fort where she was being detained without any warrant of arrest or a detention order having been served on her and without any knowledge of the reasons which bad led to her detention. The petitioner, therefore, prayed that Mst. Farkhanda Bokhari be brought before this Court, so that the Court might satisfy itself that she was not being held in custody without lawful authority and in an unlawful manner. It was further prayed that pending the disposal of the writ petition, the petitioner and his counsel may be permitted to have interview with the detenu so as to seek full instructions in the matter. 2. As the respondents in the writ petition were Provincial Police Officers, Mr. Rashid Aziz Khan, Additional Advocate-General, appeared at the instance of Court on 10-1-1981 and took time to seek instructions in the matter. The . Next day, he appeared and submitted that the detenu was being detained in a case under section 2(1)(d) of the Pakistan Army Act. Syed Iftikhar Ahmad, the learned Deputy Attorney-General, who also was present, confirmed this and sought two days' time to seek further instructions which was allowed. He was, however, directed to arrange with authorities for access of the counsel to the detenu. On 13-1-1981 when the matter was taken up, an application was moved on behalf of the petitioner to say that the order of the Court for allowing access of the
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counsel had been flouted because the Police and the Army Officers had stationed themselves so near as to overhear "the conversation between the detenu and the counsel" and had refused to allow an exclusive interview. The counsel, therefore, orally prayed that the detenu be produced in Court. The allegation was controverted by the Deputy Attorney-General. As the con--troversy as to whether proper facility had been afforded to the counsel for consultation. With the detenu could not be resolved, the Court directed that the detenu be brought in Court on the next date; i.e. 18=1- 1981. The Court also took note of the oral submission made by the learned Deputy Attorney-General that the jurisdiction of this Court was barred by clause (3) of Article 199 of the Constitution. The writ petition was, thereupon, admitted to full hearing. 3. On 18-1-1981, the Advocate-General, who had been substituted for the Deputy Attorney-General for representing the respondents, instead of producing the detenu, moved an application asserting that the authority in Federation of Pakistan v. Ghulam Jdani (PLD1974SC402did not support that this Court could order the production of the detenu and that the detenue having been implicated in a case under section 2(1)(d) of the Pakistan Army Act, the Court's jurisdiction was ousted by clause (3) of Article 199 of the Constitution. The Court did not find any justifi.Ation for the respondents withholding the production of the detenu merely on their assertion of lack of jurisdiction of this Court without that assertion having first been established. In spite of time taken by the learned Advocate-General in the course of the day to produce the detenu, she was not produced for the stated reason that the concerned authorities could not be contacted. The learned Advocate- General again took time till 24-1-1981- for production of the detenu. On this latter date, it was brought to the notice of this Court that the Supreme Court bad passed an order meanwhile, staying the production of the detenu. As a copy of the Supreme Court's order was not readily available, the matter was adjourned to 25-1-1981. On this date, too, the copy was not available. However, Mr. Shahid Iqbal, learned Assistant Advocate-General, made a statement before the Court to the effect that the Supreme Court had suspended the order of this Court relating to the production of Mst. Farkhanda Bokhari but that the question of jurisdiction in the petition was to be decided by this Court. 4. Written statement in the case was filed on 27-1-1981 on behalf of "Federation of Pakistan through Officer Commanding Field Attachment Inter Services Intelligence Directorate, Lahore and others". This led to the filing of an application under Order I, rule 10, C. P. C. By the petitioner for substituting the respondents in the writ petition by "Federation of Pakistan through Officer Commanding Field Attachment Inter-Services Intelligence Directorate, Lahore" which, there being no objection raised, was allowed. Replication was also filed. 5. During the hearing of the arguments, the learned Advocate-General stated that a charge in the case had already been read in the presence of the accused under rule 13 of the Pakistan Army Act Rules after her arrest. An amended written statement was accordingly filed on 11-2-1981 in which it was stated that "the reason of arrest was disclosed to her at the time of arrest. Moreover, a tentative charge-sheet was read out to the accused on 6th January, 1981 ". 6. The plea of lack of jurisdiction needs to be examined. The ouster clause referred to is clause (3) of Article 199 of the Constitution which prohibits the Court from making an order under clause (1) of that Article "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 . . . Or in respect of any action taken in relation to him . . . Or as a person subject to such law" (underlining* is mine). By clause (5) of the same Article, a "tribunal established under a law relating to the Armed Forces of Pakistan" is not included in the term "person" to whom a direction can issue ' under the Article. Sub--section (4) of section 59 of the Pakistan Army Act, lays down that : "Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to the Act by reason of his being accused of an offence mentioned
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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" (underlining* is mine). 7. These above provisions make it clear that this Court's jurisdiction under Article 199 is barred in respect of a person who has become for the tame being subject to the Pakistan Army Act and that such person shall be liable to be tried or otherwise dealt with under that Act not, withstanding anything contained in any other law for the time being in force. A civilian, who is otherwise not subject to the Pakistan Army Act, can become so subject, if he is "accused" of an offence under clause (d) of subsection (1) of section 2 of the Pakistan Army Act. Section 2 defines persons who shall be subject to the Act. A person, who is not otherwise subject to the Act, will become so under clause, (d) if be is 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, 1923, or (iii) an offence punishable under sections 123, 123-A, 124A, 143, 144, 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 436 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 Preven--petition of Anti-National Activities Act, 1974 (VII of 1974), or an attempt of conspiracy to commit, or an abetment of, any of the said offences." 8. Chapter VIII of the Act incorporates the provisions for arrest and proceedings before trial. Under section 73 in this Chapter "Any person subject to this Act who is charged with any offence may betaken into military custody." Under section 74 "Every Commanding officer shall take care that a person under his command when charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having due regard to the public service". Where any such person as is mentioned in section 73 or as is not on active service, remains in custody for a longer period than eight days without court martial for his trial being ordered to assemble, the Commanding Officer is required under section 75 to submit a special report giving reasons for the delay and to continue to submit such report at intervals of eight days until court--martial is assembled or such person is released from custody. 9. The scheme of the Act and the Rules prescribe two stages. One is the stage of investigation and the other of trial. At the stage of investiga--petition, it is laid down under rule 13, sub-rule (1) of the Pakistan Army Act, Rules that "Every charge against a person subject to the Act, other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross- examine any witness against him, and to call any witnesses and to make any statement in his defence". If in the opinion of the Commanding Officer the evidence does not show that some offence under the Act has been committed, he shall under sub-rule (2) dismiss the charge brought before him and may do so if in his discretion he thinks that the charge ought not to be proceeded with. But if he be of the opinion that the charge ought to be proceeded with, he shall under sub-- rule (3) either (i) dispose of the case summarily; or (ii) refer the case to the proper military authority. The Commanding Offcer in disposing of the case summarily shall award one of the punishments prescribed under section 23 read with rule 17 (see Note 3(v) appended to rule 13 in the
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Offcial Manual of Pakistan Military Law 1957). In this preliminary investigation of the charge, except as provided in rule 15 which relates to an Offcer accused, a summary of evidence is to be recorded in every case where it is intended to remand the accused for trial by a General or Field General or District courts-martial (see Note 3(ii) under rule 13 ibid). 10. In case of a civil offence, where a criminal Court and the court--martial have each jurisdiction, it is laid down under section 94 that 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. Under section 95 a criminal Court having jurisdiction, if it is of the opinion that proceedings ought to be instituted before itself in respect of civil offence, it may, by a written notice. Require the "Prescribed Officer", at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Federal Government. When the "Prescribed Officer" refers the question to the Federal Government as to the Court before which the proceedings ought to be instituted, the order of the Federal Government shall be final. The "Prescribed Officer" for the purpose of sections 94 and 95 is defined under rule 168 to be an Officer having power not less than that of a Brigade or Logistics Area Commander or the Officer Commanding the station. According to section 96, a trial by a court-martial shall be a bar to a subsequent trial by a criminal Court on the same facts. 11. Where it is decided to try the person by a court martial, a formal charge-sheet containing the whole issue or issues to be tried would be framed under rule 19. According to sub-rule (2) of this Rule "A charge means an accusation contained in a charge-sheet that a person subject to the Act has been guilty of an offence". Note 2 appended to this rule in the Manual clarifies that "charge" referred to in the said sub-rule (2) "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". Rule 20 requires that "where the accused person does not belong to the regular army, the charge-sheet shall show by the description of him, or directly by an express averment, that he is amenable to the Act in respect of the offence charged". Rule 21 deals with contents of charge. Under rule 24, the accused before he is arraigned, shall be informed by an officer of every charge on which he is to be tried. Under rule 38, the accused shall be arraigned on the charges against him before the Court and the charges shall be read and, if necessary, translated to him and he shall be required to plead separately to each charge. 12. Learned counsel for the petitioner contended that the mere receipt of information or arrest on account of such information of a person would not mean that he is an "accused", that the requirement of a preliminary investigation would indicate that the person was only a suspect and that unless suffcient evidence against him has come to light in the result of the preliminary investigation, he could not be termed as an "accused" .For the purpose of section 2(1)(d). He insisted that the word "charge" used in rule 53(1) was not a term of art but would only mean the complaint received requiring the holding of a preliminary investigation. Similarly, the word "evidence" used ,in that Rule, according to him, was not in the formal sense of section 112 of the Act but the sense of statements recorded by the Police under section 161, Cr. P. C. He urged that during the preliminary investigation the role of the Commanding Officer vas similar to that of a Police Investigating Officer under the Code of Criminal Procedure. He, therefore, argued that not until the Military authorities have decided under section 94, after examining the material brought out during the preliminary investigation, to prosecute the detenu under the Act, she could be said to be an "accused" for the purposes of section 2(1)(d) of the Act and for that reason she would not be a person subject to 'the Act for the purposes of section 59(4) or clause (3) of Article 199 of the Constitution. In this connection he emphasized that the provision of section 2(1)(d) did not create any offence under the Act but only a category of "persons subject to the Act" who would otherwise
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not be subject to that Act and that the purpose of section 59 was to make the civil offences covered by that section, only liable to be tried or dealt with under the Act without affecting the jurisdiction of civil Courts to try those offences subject to the provisions of sections 95 and 96 of the Act. He, therefore, urged that for a true interpretation of the ouster clause, the term "subject to the Army Act" had to be strictly construed. He relied on F. B. A.I's case (PLD 1975 SC 506), Saifuddin Saif's case (PLD 1977 Lah. 1174) and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmir! (PLD 1969 SC 14). 13. The learned Advocate-General, on the other hand, argued that a person became subject to the Army Act as soon as he .Was accused of an offence enumerated under section 2(1)(d) read with section 59(4) of that Act. According to him, he became so subject as soon as he was arrested upon allegation of an offence enumerated in clause (d) of section 2(1) or at most when a charge has been read over to him under rule 13(1). According to him, that charge was read over to the detainee at the time of her arrest on 6-1-1981 and from that moment she had become subject to the Act because the charge included an offence under the Official Secrets Act, which was one of the offences in the said clause (d). He pointed out that when there was express provisions to deal with a matter under a special law, the provisions of the Code of Criminal Procedure by virtue of subsection (2) of its section I would become inapplicable. He stressed that the provision of Chapter VIII of the Act enabling the Military Authorities. To take the person accused into military custody and to detain him under the Act became available as soon as the person was charged of an offence within the meaning of rule i3(1) and as such it could not be said that he became subject to the Act only after a formal charge under rule 19 had been framed. He urged that the formal charge under that Rule was relatable only to arraignment before the court martial and had nothing to do with the applicability of the Act which became applicable as soon as the arrest is made and the charge under rule 13(1) is heard in the presence of the accused. He insisted that the law laid down in Salfuddin Saif's case by a learned Single Judge was not the correct law and does not reconcile with the scheme of the Act and the Rules and as such ought not to be followed. He relied on Allah Baksh's case (PLD 1968 Lah. 1061), in which it was held that the provision of section 59(4) made it clear that a civilian accused of a civil offence could be dealt with under the Pakistan Army Act if he fell within the ambit of clause (d) of subsection (1) of section 2 of that Act and that "the combined effect of sections 73, 74 and 75 seems to be that a person subject to the Act and accused of an offence triable under the Act can be taken into custody by the Military Authorities and detained in such custody until he is tried by a Military Court or otherwise released". In this connection it had been further observed :- "When these provisions are read in conjunction with the provisions to which reference has already been made, namely, the enlarged sections 2 and 59 of the Act, it becomes clear that acivilian accused of an offence punishable under section 3 of the Official Secrets Act in relation to the Military affairs of Pakistan , can be arrested and detained by the Military Authorities as he becomes a person subject to the provisions of the Pakistan Army Act in view of the amendments introduced in sections 2 and 59 of the Act." The learned Advocate-General urged that clause (d) of subsection (1) of section 2 of the Act read with section 59(4) did create offences exclusively triable under the Act and thereby ousting the jurisdiction of the criminal Courts. He insisted that the civil offences covered by section 59 constituted offences under the Act and ceased to be civil offences and as such the provisions of sections 94 and 95 were not attracted. According to him, the case was, therefore, covered by clause (3) of Article 199 of the Constitution and as such the jurisdiction of this Court was barred. 14. The observations of the Division Bench in Allah Rakha's case, no doubt, mean that when a civilian has been accused of an offence under section 2(t)(d), he becomes a person subject to the Act, but it does not throw light as to when a person can be said to have become an "accused". In
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fact, the Court was not called upon to embark on such enquiry because the jurisdiction of the Court was not in question: The ouster clause contained in clause (3) of Article 98 of the Constitution of 1962, then in force, barred only an application made by or in relation to a person in the Defence Services of Pakistan and as such was not in pari materia with the provision of clause (3) of Article 199 of the pre3ent Constitution. A civilian not in the Defence Services of Pakistan could, therefore, invoke the provision of Article 98 of that Constitution. That being so, the Bench was not at all seized of the question of interpreting as to when precisely a person became subject to the Army Act. The ouster clause in the present form was introduced by the Constitution (First Amendment) Act (XXXIII of 1974) with effect from 4-5-1974. The clause was later withdrawn by C. M. L. A's. Order No. 6 dated 22-9-1977 but was again restored by C. M. L. A's. Order No. 2 of 1977 dated 27-6-1979. 15. The point as to when a person can be said to be an "accused" assumes importance on account of the present ouster clause because the determination of the question as to when a person not otherwise subject to the Army Act becomes so subject depends upon the resolution of that point. The question had received only a passing reference in F. B. A.I's case (PLD 1975 SC 506) by the Supreme Court where it had been observed in the leading judgment as follows : "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." was against compelling a person accused of an offence to be witness against himself. The Supreme Court of India while interpreting the provision of that Article in Muhammad Dastgir v. State of Madras AIR 1960 SC 756, had made observations which equated a person accused with one against whom a formal accusation relating to the commission of an offence had been made. According to the commentary on American Law `complaint' for purpose of triggering investigation by State Board of Public Health as to claimed mistreatment of laboratory animals is not an `accusation' as contemplated by Administrative Procedure Act provision for holding of formal hearing under an accusation (see Humane Society of U. S. Of America, California Branch Inc. v. Merrill18 Cal. Rep. 701, as referred to in Words and Phrases, page 502, Volume 1-A, 1964 Edition). In the same book it has been further commented at page 503 that : , "Where a person, who had not been formally charged with violation of section 620(f) of The Vehicle Code of May 1, 1929, P. L., 905 (75 P. S. S. 231), was brought to plaintiff, a physician, by a Police Officer employed by a borough to ascertain if, in the opinion of plaintiff, such person was under the influence of intoxicating liquor, whereupon plaintiff examined the person and gave as his opinion that he was not under the influence of liquor, after which the Police Officer allowed said person to proceed on his way and nothing further was done in the matter, plaintiff cannot succeed in a mandamus action to compel the city controller to pay a bill for 5 for service rendered, since under such circumstances the person examined was not a person `accused' of violating section 620(f) of the Code within the meaning of section 1207 which provides for the payment of physician's fees for examination of persons accused of violating the provisions of section 620(f ); nor is the borough liable to pay the bill."-(Schafenacker v. Green 2 D & C 2d 187, 190). 16. It is for this reason that the point had been given a careful study in Saifuddin Saif's case. The learned Judge had, after a meticulous examination of the relevant provisions of the Act and the Rules, observed;
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"There can be two stages when accusation in the form of 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 ca-e, 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."…
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