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Criminal Miscellaneous Application No. 39 of 1956, decid ed on 6th March 1956.

, First Schedule, S. 87‑Shore establishment not a "ship in commission' on books of Shore establishment though belonging to Her Majesty's Navy not subject to naval discipline under the Act.

A shore establishment of the Royal Pakistan Navy (e.g., H. M. P. S. Dilawar) is not a "ship in commission" within the meaning of section 87, First Schedule, Pakistan Navy (Discipline) Act (XXXIV of 1934).

An officer of the Royal Pakistan Navy, on the books of a shore establishment, is not subject to naval discipline under the Act.

The petitioner was in custody of the naval authorities for being Court martialled in accordance with the provisions of the Navy (Discipline) Act for alleged disappearance of Rs. 1,31,000 from his office safe.

On a petition under section 491 Cr. P. C., it was contended by the petitioner's counsel that ‑a shore establish ment like H. M. P. S. Dilawar, on the books of which the petitioner was borne, was not a "ship" in commission within meaning of section 87 of the First Schedule to the Navy (Discipline) Act, and that the petitioner, therefore, was not subject to the provisions of that Act.

Held, that in the absence of a definition of the word "ship" in the Act, the expression should be given its ordinary meaning as, for instance, "any large sea‑going vessel".

Further, that the shore establishment is not a "ship" within the meaning of section 87, First Schedule, Pakistan Navy (Discipline) Act, 1934, although the establishment in question was commissioned as a ship by a notification of the Governor‑General.

The petitioner was ordered to be released from naval custody.

[Editor's Note:‑Now, vide section 2 Pakistan Navy (Discipline) (Declaration) Ordinance, 1956, (P. L. D. 1956 Central Acts p. 43) which declares that reference to ships in commission in section 87 of the First Schedule to the Pakistan Navy (Discipline) Act, 1934, includes and always has included, a reference to shore establishments].

---This is an application under section 491 Criminal P. C., preferred by Commander M. S. Ibrat who is a Commander in the Royal Pakistan Navy, holding the office of a Senior Supply Officer in H. M. P. S. Dilawar.

It is alleged that a theft took place in the petitioner's office on 1st/2nd January 1956, and about Rs. 1,31,000 were found missing from the petitioner's safe. The duplicate set of keys and instructions to operate the combination of the petitioner's safe which was kept in the custody of Commanding Officer H. M. P. S. Dilawar, Captain C. S. Ahmad, was also found missing from the safe of the said Commanding Officer. The petitioner brought the facts to the notice of Captain C. S. Ahmad. On 9th January 1956, at 6‑30 p.m., the petitioner was put under arrest on a signal to the effect "put Commander Ibrat under close arrest". The same day the C. I. D. Karachi wanted him for the purposes of interrogation and accordingly the petitioner was sent to the C. I. D. Office under Naval escort at about 6‑30 p.m. The petitioner's wife was also arrested the same day by the C. I. D. Police. The C. I. D. authorities including Mr. Masud Ahmad, A. I. G., C. I. D., asked the Naval police which escorted the petitioner to the C. I. D. Office to return to their Headquarters while the petitioner was detained by them. The petitioner is said to have been mal‑treated by the C. I. D. authorities for several days continuously. Mr. Masud Ahmad wanted the petitioner to make statements implicating Commander Khalid Jamil and Captain C. S. Ahmad. The police had obtained a remand from the District Magistrate, Karachi, up to 23rd January 1956. On 23rd January 1956 the petitioner was taken to the Special Judge, Karachi, who remanded the petitioner to Judicial custody. Subsequently the Naval authorities put in an application under section 549, Criminal P. C., before the Special Judge praying that the petitioner be delivered to them for trial by a Court Martial in accordance with the provisions of the Naval Discipline Act. The Special judge acceded to the prayer of the Naval authorities and handed over the petitioner to them on 4th February 1956 and since then the petitioner continued to be under detention by the Naval authorities.

The learned counsel for the petitioner Mr. Manzr‑e‑Alam argued that the detention of the petitioner by the Naval authorities was illegal and without jurisdiction primarily on two grounds firstly that the petitioner was not subject to the Naval Discipline Act and secondly the detention was motivated by ulterior considerations.

The first point, therefore, to be determined in the case is whether the petitioner is subject to Pakistan Navy (Discipline) Act XXXIV of 1934. The relevant section is section 87 of the Act which runs as follows :‑

"Every person in or belonging to His Majesty's Navy, and borne on the books of any one of His Majesty's ships in commission and every member of the Pakistan Naval Reserve Forces to the extent specified in section 4 of the Pakistan Naval Reserve Forces (Discipline) Act, 1939, shall be subject to this Act; and all other persons hereby or by any other Act made liable thereto shall be triable and punishable under the provisions of this Act."

The contention of Mr. Brohi appearing on behalf of the opposite parties is that the petitioner is a person belonging to Her Majesty's Navy and is borne on the books of one of Her Majesty's ships in commission and is consequently subject to the Act. It is admitted that the petitioner his a person belonging to Her Majesty's Navy but it is contested that the petitioner is borne on the books of one of Her Majesty's ships in commission. It is a matter of admission that the petitioner is borne on the books of H. M. P. S. Dilawar. H. M. P. S. Dilawar came into existence by means of R. I. N. Order No. 195 of 1941 produced before us on behalf of the opposite parties. It reads as follows :‑

" Junior Boys Training Establishment, Karachi.‑The Governor‑General in Council has sanctioned the institution of a junior Boys Training Establishment at Chinna Creek, Karachi.

(2) The personnel for this establishment will be :‑

The terms and conditions of service of the Matron and the Civilian Boxing Instructor will be communicated later.

(3) The above Establishment will be known as H. M. P. S. Dilawar .

It is clear from the above that H. M. P. S. Dilawar is a shore Establishment primarily intended for training junior boys. The simple question then is whether such an establishment is a ship within the meaning of section 87. The words "ship" has not been defined in the Pakistan Navy (Discipline) Act, nor is there anything in the Act to suggest that the word "ship" bore an artificial meaning. In the words of A Maxwell the golden rule is that the words of Statutes must prima facie be given their ordinary meaning. In Websters New International Dictionary 2nd Edition 'ship' is described as any large sea going vessel. It proceeds to say "in various matters of maritime and international law, as with reference to salvage : ship may mean any vessel used for the purposes of navigation ; any locomotive machine or structure intended or used for transportation on rivers, seas, oceans, or other navigable waters, without regard to its form or means of locomotion ; any structure or vessel fitted for navigation".

The word 'ship' has also been noticed in Strouds Judicial Dictionary 3rd Edition Vol. 4. The following appears against the word 'ship'

""ship" technically taken, designates a particular species of sea‑going vessel, square‑rigged throughout, which carries 3 masts with tops and yards to each of them. It has also a generic sense, as designating a vessel of burden, irrespective of rigs, and without regard to the particular means of locomotion."

The contention of Mr. Brohi that anything which is described as a ship becomes a ship within the meaning of section 87 of the Pakistan Navy (Discipline) Act finds no support from any authority of any kind whatsoever. We could not appreciate the reference by Mr. Brohi to section 232 of the Government of India Act. The section runs thus

"(1) The Governor‑General shall have power to raise and maintain the Naval, Military and Air Forces of Pakistan and the reserves of such Forces.

(2) The Governor‑General shall have power to grant commissions in such forces and in the reserves of such forces, and the said power extends to the granting of a commission in any such force to any person who might be, or has been, lawfully enlisted or enrolled in that force."

Nobody questions in this case the authority of the Governor‑General to confer a commission on a shore establish ment but would that shore establishment become a ship within the meaning of section 87 simply because the notification of the Governor‑General mentions the establishment as a ship. The section does not confer any such power on the Governor- General. To attract the application of section 87 there should not merely be a commission but a ship which is in commission. Our view that ship under section 87 has been used in its ordinary meaning finds support from the definition of ship in explanation of terms appended to Royal Navy regulations. This defines ship as any vessel in commission or ordered by the Government of India to be commissioned.

A somewhat similar. question came up for consideration before a Bench of this Court in Writ Petition No. 118 of 1955 decided by our brothers Bachal and Inamullah, JJ. This Writ Petition No. 118 of 1955, had been filed by one Sher Ahmad who had been tried and convicted by a Court Martial. Sher Ahmad was acting as a Commissioned Supply Officer at the Royal Pakistan Naval Hospital in Karachi. The argument on behalf of the Crown was that Naval Hospital in Karachi was a ship within the meaning of section 87 of the Act. This con tention was repelled by the Bench. Our brother Inamullah, J., who delivered the judgment observed as follows :‑

"The contention of Mr. Khurshid, the learned advocate for the petitioner is very simple. His contention is that so far as the provisions of the Pakistan Navy (Discipline) Act, 1934, are concerned, the Royal Pakistan Naval Hospital at Karachi cannot be said to be a ship in commis sion. We have carefully considered this question, and we have come to the conclusion that the Royal Pakistan Naval Hospital at Karachi cannot be said to be " one of His Majesty's ships in commission". We have great doubt if a shore establishment can be said to be a "ship in commission" within the meaning of the Pakistan Naval (Discipline) Act, 1934."

Mr. Brohi contended that this observation was a mere obiter dicta as a decision proceeded on another basis. This is correct but we have come to the conclusion that the doubt of the Bench was fully justified and a shore establishment like the one in question cannot be said to be a ship in commission.

Mr. Brohi vehemently argued that our interpretation of the word 'ship' would lead to revolutionary and startling results as even the Naval Commander would be beyond the pale of Naval (Discipline) Act inasmuch as the Naval Commander himself is also borne on the books of this shore establishment. No startling results need follow from this interpretation. What the Naval authorities would be required to do is simply to place the Commander‑in‑Chief on one of the regular ships in commission. Besides we must not shrink from interpretation which will undo an erroneous mis‑conception. We have no option but to give effect to the contention of the petitioner that he is not subject to Naval Discipline inasmuch as he is not borne on the books of any of Her Majesty's ships in commission.

The second ground advanced by the learned advocate for the petitioner was that the entire proceedings were mala‑fide inasmuch as they were resorted to cover the alleged misdeeds of Mr. N. A. Qureshi the Judge Advocate of the Fleet who had been borrowing according to the petitioner large sums from the Central Naval Canteen and had deposited Rs. 52,000 to discharge the same and to provide an opportunity to him as well as Mr. Masud Ahmad, A. I. G., C. I. D., to falsely implicate Commodore Jamil and Captain C. S. Ahmad. As our decision on the first point is sufficient to dispose of the case in favour of the petitioner it is not necessary to go into the merits of these allegations. The allegations, however, are of a very serious kind and calculated to damage the asprit de corps of the Navy. They deserve personal notice and enquiry by the Naval Commander and the Defence Secretary.

The result is that the petitioner succeeds and Commander M. S. Ibrat is ordered to be released and set at liberty forthwith.

A. H. Release ordered.

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