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Criminal Petition No. 68 of 1980, decided on 20th February, 1980.

‑‑‑‑S. 516‑A‑Custody of property‑Jurisdiction‑Ordinary Courts having jurisdiction till such time as matter not actually entrusted to Military Court by order of competent authority or cognizance not taken by a Military Court, ordinary Courts, held, possessed of jurisdiction to release property, suspected to be concerned with commis sion of offence on superdari.‑[Jurisdiction].

Niaz Muhammad Siddiqui for Petitioner.

Rashid Ahmad Akhtar for the State.

It is contended by learned counsel for the petitioner that on 25^th October, 1979 F. I. R. No. 567/79 was registered at P. S. Civil Lines, Rawalpindi, by Ghulam Dastgir reporting the murder of his brother Ghulam Jillani. According to the F. I. R. this was a blind murder. It is stated that after investigation, the petitioner was accused of the murder of Ghulam Jillani. The petitioner has since then been appearing before the Ilaqa Magistrate, who has been remanding his custody from time to time. The petitioner was last remanded on 18th February 1980 upto 4th March 1980 and has to appear before Ilaqa Magistrate, on that date. It is stated by learned counsel for the petitioner that the challan has not yet been presented to arty Court.

2. It is stated by learned counsel for the petitioner that according to his information it is intended to try the accused before the Special Mili tary Court. However, cognizance has not yet been taken by any Military Court as is apparent from the fact that the accused appears before the Ilaqa Magistrate, for remand.

3. It is stated that Car No. R I E/6931. which belongs to the peti tioner/accused has been taken into' 'custody by the Investigating Agency and is presently parked at P.S. Civil Lines, Rawalpindi. The petitioner's application for the release of the car to him was rejected by the 11aqa Magistrate, against which order the petitioner approached the learned Addl. Sessions Judge, Rawalpindi, who by his order dated 12th January, 1980 rejected the Revision Petition for the release of the car, on 12^th January, 1980 on the ground that the matter had been entrusted to the Military Court and as such be had no jurisdiction.

4. This case originally came up for hearing before my learned brother Mazharul Haq, J who directed the S.H.O. to inform the Court whether the case is pending before the Military Court. According to a report presented by Ali Akbar, S. I. P.S. Civil Lines, Rawalpindi, the DMLA, Secretariat has certified that :‑

"The case has been approved for trial by the Special Military Court after due scrutiny on the orders of the. C. M. L. A. please."

5. It is thus apparent that the matter has not yet been entrusted to any Military Court and in the circumstances, the continued appearance of the petitioner before the 11aqa Magistrate for remand, is understandable.

6. As the matter has not actually been referred‑to any specific Military Court, the jurisdiction of the ordinary Courts is not in any manner affected.

7. Mr. Rashid Ahmad Akhtar, learned counsel for the State relies upon the report presented by S. I. Ali Akbar, and argues that as it has been decided to refer the case for trial before the Military Court, the jurisdic tion of the ordinary Courts is ousted. If the argument of learned counsel were to be accepted, then this case, it appears is in the limbo. There is no Military Court actually seized of the matter and according to the State Counsel, ordinary Courts cannot exercise jurisdiction. The fallacy in the position is obvious.

8. Till such time as the matter is not actually entrusted to a Military Court, by order of competent authority, or cognizance is not taken by a Military Court, the ordinary Courts will continue to exercise its' jurisdic tion. The view of the learned Additional Sessions Judge, is; therefore, not correct.‑

9. In these circumstances, the petition is accepted and it is hereby directed that Car No. RIE/6931 which shall be released to the petitioner or his representative on Supardari', subject to his furnishing security in the amount of Rs. one lac, to the satisfaction of the Ilaqa Magistrate, to produce it whenever required before any Court of competent jurisdiction:

Petition accepted.

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