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Writ Petition No. 119 of 1979, decided on 4th April, 1979.

--- No. 4 as amended by Martial Law Order 37 read with Criminal Procedure Code (V of 1898), S. 344--Remand of accused-Necessary charge under law framed against detenu-Case entrusted to Summary Military Court for trial-Court passing orders on various dates remanding detenu's custody to Jail authori ties--Challan and relevant record produced before Court on every date-Orders of remand, held, passed after due application of mind and after seeing relevant record and actually meant for starting inquiry and trial.-[Remand of accused].

The necessary charge under the law was framed against the detenu and the case was entrusted to the Summary Military Court for trial purposes. The Court had passed orders on various dates remanding detenu's custody to Jail authorities concerned, The challan and the relevant record was also produced before the Court, on every date according to the certificate issued by the Assistant Prosecutor

, the orders of remand were passed after due application of mind and after seeing the relevant record. Such orders were actually meant for starting inquiry and trial.

Alam Din v. State P L D 1973 Lah. 304: Syed Muhammad Azim v. The State P L D 1970 Quetta 27; Wazir v. State P L D 1962 Lah. 405; Muhammad Alam v. State P L D 1967 S C 259 and Sultan Mahmood v. Kh. Muhammad Tufail. Superintendent of Police P L D 1976 Lab. 1371 ref.

-- No 33(e)-Objectionable material handed over by detenu to some body recovered from such person-Such material prima facie appearing to be aimed at furthering cause of political party-Whether such material handed over by detenu yet to be ascertained-Allegations as contained in statement of such person to be determined by trial Court-Case against detenu under M. L. R 37(e), held, estab lished-Writ Petition dismissed in circumstances of case-Cons titution of Pakistan (1973), Art. 199.

Ch. Khalid Mahmood for Petitioner.

Khalil-ur-Rehman Ramdey, A. A. G. for the State,

The detenu, Abbas Athar, who is a journalist by profession, is involved alongwith others, in a case registered vide F. I. R. dated 20-9-1978 at Police Station Gowalmandi, Lahore under Martial Law Regulation No. 33(e).

2. The Police Official concerned was informed though one Riaz Ahmad that some objectionable material was lying with Khalifa Yasin one of the co-accused for binding purposes. This material had been printed at Art Press, Link McLeod Road, Lahore. The Police official, alongwith Ch. Abdul Hamid, M. I. C. and Malik Ghulam Hyder D. S. P. raided premises in question but found the same locked. Necessary guard was posted outside the premises. It was on 20-9-1978, when Khalifa Yasin unlocked the premises in the presence of Police officials as well as witnesses to the case, and on search objectionable material was recovered therefrom, printed in Urdu and English languages, Khalifa Yasin disclosed that the material was given to him for binding purposes by Nazir and Abbas Athar, the detenu in this case. The detenu thereafter was arrested and since then he is in Jail.

3. The detenu, after his arrest, was produced before Malik Munawar Akhtar, Magistrate on 21-1-1978 and was remanded to Policy custody. He was remanded to judicial custody on 1-10-1978 and on the same day he was produced before Summary Military Court No. 37, Lahore, Thereafter, according to the learned counsel, he was produced before the aforesaid Military Court on many dates but the case was adjourned on account of non-submission of the challan.

4. It has been contended that no case is made out under M.L.R. 33(e) against the detenu on the basis of the F. I. R. as well as the material so far collected by the police; the detenu has got nothing to do with the Art Printing Press, wherefrom the material is alleged to have been printed, as he is neither a keeper of nor has any interest in the press. According to the learned counsel for the petitioner, no valid remand order has been passed against the detenu after 14-10-1978, when the period of remand so far as the order dated 1-10-1978 passed by the Magistrate is concerned, expired. It is contended that neither the challan nor the F. I. R. in the case, containing the relevant material was ever pro duced before the Summary Military Court and without application of mind and weighing the relevant material as to whether any case was made out against the detenu he was remanded to judicial custody by passing orders on jail warrants. It is contended that since no remand order was passed on the relevant fie therefore, the aforesaid orders pa jail warrants would not justify the detention of Abbas Athar.

5. It is admitted by the parties that the detenu is being tried by a Summary Military Court. According to para 7 of C.M.L.A.'s Order 4, a Summary Military Court shall exercise same powers and follow the same procedure as a Summary Court Martial follows under the Pakistan Army Act, 1952, and the rules framed thereunder. The procedure to be followed by Summary Courts Martial under section 3 of the Act has been given in rules 90 to 116 of the Pakistan Army Act Rule. There is no provision as to what -procedure will be followed while re manding an accused to Police or judicial custody. No such provision also exists in the Army Act itself. It appears that concept of judicial remand as contemplated by section 344, Cr. P. C. is not contemplated by any provision of the Army Act or the rules framed thereunder. The accused persons on trial before various types of Military Courts are not sent to any judicial lock-up. They are detained at Army Headquarters and are produced before the Military Court concerned as and when required. In the absence of that the only provision, which can be help ful to solve the problem is sub-para. (1) of C.M.L.A.'s Order No. 4, as amended by his Order No. 37. It provides that 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 Martial Law Orders or under any other law for the time being in force. Sub para. (2) of para. 1 provides that a Military Court may, for the 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 ; and

(c) upon information received from any person other than a Police Officer of an Officer of the Armed Forces:

6. The bare language of the aforesaid provision shows that in order to have polder and jurisdiction to try and punish any person, a Military Court will first take cognizance of an offence, upon receiving a complaint, report pr information, as the case may be. This provision is just similar to that as contained in section 190, Cr. P. C. It has been held in many cases under that provision, that in order to have cognizance it is necessary for a Court to apply its mind, after receipt of police report, while taking other steps in the case.

The learned 'Assistant Advocate-General, who has rendered assis tance in this case even at preliminary stage at the request of this Court, has shown -to the Court charge having been framed by Lt.-Colonel, SO-1, Legal, for b. M. L. A Sector-1 Lahore. The aforesaid Officer also forwarded the case to the Summary Military Court for trial.

7. It is contended that since the charge was not framed by the Summary Military Court itself net any challan or relevant file was pro duced before it, therefore, in the absence of that no cognizance was ,taken by the Military Court and as such orders passed by it on jail warrants remanding the custody of the detenu to judicial lock-up are, without law ful authority.

8. It has been held in Alam Din v. Slate (P L D 1973 Lah. 304) that a Court takes cog nizance by a judicial action which need not necessarily involve any formal act, it occurs as soon as the Court applies its mind to the suspected commission of the offence as disclosed in the police report or the private complaint for the purpose of proceeding in a particular way for holding an inquiry or trial, as the case may be.

In Syed Muhammad Azim v. The State (P L D 1970 Quetta 27) it has been held that it is the application of the mind of a Court to the facts of a particular case, which may amount to taking cognizance in the matter. When the remand is applied for the first time, a report is submitted by the Investigating Agency giving reasons for grant of remand and each time a request for remand is made, the Court has to apply its mind to the evidence already obtained against the accused and has to be satisfied with the grounds of his custody to the police or judicial lock-up, as the case may be. It has been held that this process can be done only when the Court has taken cognizance of the offence.

It has been held in Wazir v. State (P L D 1962 Lah.405) that submission of police report itself does not constitute the taking of cognizance and it would be reasonable to expect that something more will be done to show that the Magistrate intends to start proceedings.

It has been held in Muhammad Alam v. State (P L D 1967 S C 259) that it is not merely by the lodging of the complaint or the placing of the police report before the Magistrate that a trial is said to commence. The commencement of the trial takes place only when the Magistrate takes cognizance of the case and not earlier.

In Sultan Mahmood v. Kh. Muhammad Tufail, Superintendent of Police (P L D 1976 Lah. 1371) the Magistrate concerned took cognizance on 7-2-1976 and 3-5-1976, respectively, while sending the case to the Sessions Court for trial purposes. On the first date he sent up an incomplete challan while on the second date he sent up the other police report duly submitted before him. It was held that the aforesaid order was passed by him after due application of his mind.

9. In the present case the learned Assistant Advocate-General has filed a certificate of Muhammad Akram, Assistant Prosecutor, Head quarter, Sub-Martial Law Administrator, Lahore, dated 22-3-1979, stating that the present case was received by him on 20-9-1978 in the Legal Branch of the Headquarter and the challan and the F. I. R of the case was always produced before the Summary Military Court ever' time when the detenu was remanded to custody. Nothing has been produced in rebuttal.

There is no doubt, that the file which has been produced in the Court, does not contain any order passed by any member of the Military Court as to why and under what circumstances custody of Abbas Athar was remitted to jail. Such orders have been passed by the President of the Summary Military Court on jail warrants remanding the custody of the detenu to Superintendent of Jail. The orders passed in this behalf on the jail warrant show that Abbas Athar was produced before the Military Court and order remanding his custody was passed by the Court.

10. The necessary charge under the law has been framed against the detenu and the case has been entrusted to the Summary Military Court for trial purposes. The Court has also been passing orders on various dates remanding detenu's custody to Jail authorities concerned. The challan and the relevant record was also always produced before the Court on every date according to the certificate issued by the Assistant Prosecutor, as referred to above. It means that the orders of remand were passed after due application of mind and after seeing the relevant record. Such orders actually meant for starting inquiry and trial.

The present is a habeas corpus petition and the only question 'to be examined is as to whether the detenu is in lawful custody or otherwise his custody has been remanded to the jail in a lawful manner. The facts dis closed above show that his custody was lawfully remanded to the jail authorities.

11. The contention that no case is made out against the detenu under M. L. R. 33(e) has no force. The aforesaid material recovered from the possession of Khalifa Yasin prima facie appears to be aiming at, to further the cause of a political party. Whether it was handed over to him by the detenu, it is yet to be ascertained. However, the allegation as contained in the statement of Khalifa Yasin that the material was handed over to him by the detenu is there arid it will be for the trial Court to see as to what extent the statement of Khalifa Yasin can be relied upon.

As a result of the above discussion, there is no force in the writ petition, which is hereby dismissed in limine.

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