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Criminal Miscellaneous Nos. 89 & 99 of 1975, decided on 16th May, 1976.

-- S. 491 read with Army Act (XXXIX of 1952), Ss. 2, 59 73---Habeas Corpus-Petitioner, a civilian, charged under Official Secrets Act, for having written a note in answer to a questionnaire disclosing information regarding military matters-Offences under Official Secrets Act having been made triable by a court-martial and a court martial for bail of petitioner having been properly constituted in accordance with law, petitioner, held, no longer detained in an unlawful manner or without a lawful authority-Detention of peti tioner for intervening period without obtaining remand from Magistrate, held further, not covered by law and hence illegal, in circum stance.-[Habeas corpus].

B. A. Farooqi for Petitioner.

Rafique Mahmood Khan Addl. A.-G. for the State.

Two applications were made to this Court by one Syed Asghar Hussain Shah under section 491, Cr. P. C. for the release of his son Mahmood Hussain Shah from the custody of Military authorities. Both the appli cations are Joined together for disposal.

It was alleged that on a false report of one Naba who is inimical to the family of the applicant, Mahmood Hussain Shah was illegally arrested by respondent No. 2 and detained in custody. It was further claimed that the detention of the said detenu is mala fide and there is no justifica tion, whatsoever, for his detention in the Military custody. The applica tions were supported by affidavits.

The respondents were called upon to show the justification for the arrest of Mahmood Hussain Shan detenu in order to see that the detenu is not being held in custody without lawful authority or in an unlawfull manner. It was on the direction of the Court that Mahmood Hussain Shah was also brought to the Court so that he could be examined as required by law to find out the circumstances under which he was arrested by the Military authorities. Accordingly his statement was Moreover, the applicant was also examined as a witness.

On the other side, Capt. Sherbaz Khan, Incharge F. I. R. was examined. It is contended by the respondents that Mahmood Hussain Shah was arrested under the provisions of Army Act. By an amendment in the Army Act persons not otherwise subject to this Act who are "ceased of having committed an offence under Official Secrets Act, 1923, shall be subject .to this Act and it was further amended that in the Pakistan Army Act, 1952 under section 59 after subsection (3), the following new sub section shall be added, namely :-

"(4) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reasons of being accused of an offence under clause (d), subsection (1) of section 59, shall be liable to be tried or otherwise dealt with under this Act for such an offence against this Act and were subject to this Act ; and the provisions of this section shall have effect accordingly."

From the statement of Capt. Sherbaz Khan it appears that some alleged information regarding Military matters to be supplied .o the enemy was written at a questionuaire by Mahmood. Hussain Shah detenu. The detenu denies to have written such a note in answer to the questionnaire and the contention of the learned counsel for the petitioner is that as this note was not examined by a handwriting expert in comparison to the handwriting of the detenu, it cannot be said that the alleged note was written by Mahmood Hussain Shah detenu. This argument is not avail able to the detenu at this stage. This Court is not a Court of inquiry for sifting of the matters so as to see the genuineness of the note allegedly writ ten by the detenu or otherwise. This is for the trial Court competent to try the accused to look into the worth of the note allegedly made on the questionnaire for information of the enemy by Mahmood Hussain Shah.

Under the heading 'fundamental rights', it has been laid down in the Constitution for the security of a person that no person shall be deprived of liberty save in accordance with law. It is further provided in the Constitution that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest and if a person is arrested and detained in custody, shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of a Magistrate and no such person shall be detained in the custody beyond the said period without an authority of a Magistrate.

The detenu in the present case has been made subject to the provisions of Army Act for the alleged offence and it has been decided that he shall be tried by a General Field Court-martial. The arrest of a person subject to Army Act is to be made under section 73 of the Act. The safeguard to check the delay in interval between the committal and court-martial trial is also provided therein but that provision appears a respect of Military personnel only and relevant sections in this behalf to be amended as warranted in view of the amendments referred to above in sections 2 and 59 of the Army Act to make other persons subject to this Act remain untouched. Thus the proper course for the Military authorities arresting the accused was to obtain a remand from the Magistrate as indicated above till a Court-martial to be duly convened to take cognizance of the offence against him. Therefore, this period of detention of Mahmood Hussain Shah detenu was without a remand sanctioned by a competent authority. That being so, this period of detention would be deemed a period not covered by law and consequently it would amount to illegal detention of the detenu till he was taken to the Court-martial for his trial A As I am told that now a Court-martial for trial of the accused has properly been convened under the provisions of the Army Act and the accused has been placed in the hands of that Court to be dealt with in accordance with law, therefore, it cannot be said that at present he is being detained in an unlawful manner or without a lawful authority.

In the result, the prayer for the release of the accused who is to be tried by a Court-martial duly composed, cannot be accepted and as such the applications stand rejected.

Order accordingly.

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