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Writ Petition No. 7968 of 1979, decided on 16th December, 1979.l.,

--‑Chaps. XIV & XV read with Martial Law Order, 19771 [C. M. L. A.'s] No. 4 37‑Criminal investigation‑Criminal trial---Jurisdiction of ordinary Courts‑Held, not affected till cognizance of offence actually taken by Military Court under para. 2 or para. 3 of M. L. O. 4/37‑Sub‑Martial Law Authority does not possess authority to direct investigation agency to arrest any person named as accused‑Such functions to be performed in accordance with law by investigation agency or by Court seized of matter ‑ Investigation agency not permitted to take directions from any executive autho rity‑Accused after having been released on bail by Sessions Judge re‑arrested under directions of Martial Law Authority‑Directed to be released forthwith.‑[Investigation‑Jurisdiction‑Criminal trial].

Abdur Rashid v. President, Special Military Court 1979 P Cr. L J Note 17 at p. 12 and Muhammad Khan v. I.‑G., Police P L D 1978 Lah. 731 ref.

Iqbal Ahmad Khan for Petitioner.

Respondent in person.

Date of hearing :12th December, 1979.

It is stated that F. 1. R. No. 107/79 was registered at P. S. Burewala, against the petitioner under section 7 of Act XXIX of 1977 and sec tion 188, P. P. C. on 27th June, 1979. The petitioner was arrested and was allowed bail by the learned Additional Sessions Judge, Vehari. by his order dated 14th July, 1979. It is stated that at the time of the hearing of the bail application, a statement had been made by the Investigating Officer to the effect that the Police was going to cancel the case as no offence had been made out.

2. It is stated that on 14th November 1979, the petitioner was arrested by the S. H. O., Burewala, and was informed that he was being arrested in pursuant to the F. 1. R. No. 107 afore referred. This was done despite the fact that the petitioner was on bail. The petitioner was also informed that the arrest being made in pursuant to the order of Martial Law Authorities.

3. I had directed the Respondent to appear before this Court today which he has done and has produced intimation from the H. Q. of the S, M. L. A. to the effect that the case against the petitioner has not been approved for trial by the Military Court and is being sent back for trial by ordinary Court.

4. The jurisdiction of Ordinary Courts is in no Manner affected till such time as the cognizance of the offence is actually taken by the Military Court, under para. 2 of M. L. R. 4/37 either on its own motion or on a report, or on the case being transferred to it by competent authority under para. 3 of M. L. O. 4/37. Till such time as this is not done, the orders o ordinary courts, including, bail orders, remain in effect. The Police cannot arrest a person bailed out by any ordinary court unless it is in possession of a warrant for the arrest of such person issued by a competent Military Court. Abdul Rashid v. President, Special Military Court (1979 P Cr. L. J Note 17 at p. 12). In this case, the respondent has brought to my notice an F. I. R. registered on the orders of S. M. L. A., Vehari. In so far as the registration of the F. I. R. is concerned, the S. M. L. A. can lay information but there is no authority in the S. M. L. A. to direct the investigation agency to arrest any person named as accused. This is a function which has to be performed in accordance with law by the investigation agency or by the Court seized of the matter. It is not permissible for the investigation agency to take directions from any executive authority how so ever high it may be see Mohammad Khan v. I.‑G. Police (P L D 1978 Lah. 731). It appears in this case that the arrest of the petitioner was on the direction of S. M. L. A.

5. From the face of the communication dated 11th December 1979 from the H. Q. of S. M. L. A. afore referred, it appears that the S. M. L. A. had not approved the case for trial by a Military Court. In these circumstances, I do not see how the jurisdiction of the ordinary Courts could have been said to have been ousted and how the petitioner could have been arrested. The jurisdiction of a Military Court can either be attracted under para. 2 or para. 3 of hi. L. O. 4/37. Even in such cases. it is for the ordinary Courts to examine whether cognizance has been taken by Military Courts under para. 2 of M. L. O. 4/37 or where a pending case is reported to have been transferred to a Military Court whether an order of transfer has been made by a competent authority under para 3 of M. L. O. 4/37. Till such lime as this is not done, the ordinary Courts will continue to have jurisdiction.

6. A copy of this order be sent to the Home Secretary, Punjab, and I.‑G. Police, Punjab, a copy be also sent to learned Advocate‑General, Punjab.

7. The petitioner, it is reported, is in the judicial lock up. He shall be released forthwith, as for the reasons given above, his arrest after release on bail by the A. S. J. is not in accordance with law. He has already given bond for appearance under the orders of the A. S. J. which is still in force and it will be for the trial Court to regulate the manner of his custody.

Order accordingly.

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