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Criminal Miscellaneous No. 4 of 1983, decided on 28th March, 1983.

-- S. 491-Habeas corpus-Inquiry under S. 491-Scope of. The scope of inquiry under section 491 of Cr. P. C. is of a summary nature and if Court, after perusing the relevant record or after making any summary inquiry, which it may deem necessary, comes to the conclusion that detention has been made in pursuance of some statutory provisions by a com petent authority, the Court would not enter into the sifting investigation with regard to the guilt or the innocence of the accused-detainee, especially where prima facie, the arrest has been made on the charge of a penal offence.

-- S. 2(d) [as introduced by Azad Jammu & Kashmir Pakistan. Army (Amendment) Act, 1971]-Azad Jammu & Kashmir Government Act, 1970, Ss. 19 & 26-Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), Ss. 31 & 51-Adoptation of Laws Order, 1956 (Council Order No. 43/56)-Yires of legislation-Contention that S. 19 of Azad Jammu & Kashmir Government Act, 1970 and S. 31 of Azad Jammu & Kashmir Interim Constitution Act, 1974 place bar on powers of Legislative Assembly and Azad Jantmu & Kashmir Council to legislate, matters concerning defence and security of Azad Jammu & Kashmir as such Amendment Act, 1971 violative of S. 19 of Azad Jammu & Kashmir Government Act and not a valid legislation-Held, laws in force before promulgation of Azad Jammu & Kashmir Govern ment Act, 1970 and Azad Jammu & Kashmir Interim Constitution Act, (VIII of 1974), protected and continue to be in force as valid laws Pakistan Army Act, 1952 adopted in Azad Jammu & Kashmir in 1956 s such protected and a valid law-Even otherwise Pakistan Army Act, 1952 relates to disciplinary matters of defence forces and not relating to defence forces and not to defence and security of Azad Jammu & Kashmir.

----Ss. 2 (d) & 59(4) (as amended by Azad Jammu & Kashmir Pakistan Army (Amendment) Act, 1971)-Amending Act, purpose of.

The primary purpose of the Azad Jammu and Kashmir Pakistan Army (Amendment) Act, 1971 was to extend certain provisions of the Army Act to the civilians charged for certain offences. The object of the amendment was not to legislate for the defence and the security of the Azad Jammu & Kashmir State, within the meanings of section 19 of the Constitutional Act of 1970. The bar contained in section 19 of the Azad Jammu & Kashmir Government Act of 1970, or in section 31 of the Azad Jammu & Kashmir Interim Constitution Act of 1974, would be attracted only if a law deals specifically and directly with the matters relating to the defence and security of the Azad Jammu & Kashmir ; such as by raising an army or any para. military force etc. The law-giver did not intend to put a bar on the legislative powers of the Azad Jammu & Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council, concerning the matters which do not strictly fall within the ambit of preserving the security of the State from external aggression. At the most, it can be said that the aforesaid amendment was brought in the Pakistan Army Act to give jurisdiction of the trial of certain offences committed by civilians, to the Military Courts.

PLD1981AJ&K107ref.

--- S. 19 and Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), S. 31-Interpretation of statutes, rule of-Expression "defence and security of Azad Kashmir" used in Ss. 19 & 31 cannot be interpreted to mean that bar stipulated by expression applies to ancillary matters such as extension of jurisdiction of Military Courts to try civilians charged for commission of certain offences-Words and phrases used in statute to be given ordinary and natural dictionary meaning unless defined by statute itself-Phraseology or term used in a statute not to be stretched as to encompass sphere, Legislature not intending.

Raja Muhammad Hanif Khan for Petitioner.

Raja Muhammad Akram Khan, A.-G. for the Non-Petitioners.

Date of institution : 9th January, 1.983. .

This is a habeas corpus petition, under section 491, Cr. P. C., whereby the petitioner challenges the detention of one Abdur Rashid, as being without lawful authority.

The facts of the case are that the said detenu has been arrested by F. I. U., a Military Organization, on the charges of espionage activities. A notice was issued to the non-petitioners to produce the record of the case pertaining to the detention in question. Consequently, the relevant record was produced by the Advocate-General.' He has also examined Naib-Subedar Fazal Hussain of F. I. U. who has stated that the detenu has been arrested under the provisions of the Pakistan Army Act of 1952 which has been adopted in Azad Kashmir. The detenu is alleged to have indulged in espion age activities and passed secret informations to the enemy. He has further stated that investigation of the case against the accused has been completed and he has been declared black'. According to the statement of Naib Subedar Fazal Hussain, the detenu is going to be tried by a Military Court, under the provisions of the Pakistan Army Act. The witness .has also shown a copy of the confessional statement, allegedly made by the accused, before the Magistrate.

The learned Counsel for the petitioner has argued that allegations against the detenu are incorrect and that confessional statement has not been volun tarily made. It may be pointed out here that while dealing with a petition, under section 491 of the Cr. P. C., this Court is not competent to pass any verdict, with regard to the guilt or the innocence of the accused in a criminal case. The scope of inquiry under section 491 of Cr. P. C. is of a summary nature and if Court, after perusing the relevant record or after making any summary inquiry, which it may deem necessary, comes to the conclusion that detention has been made in pursuance of some statutory provisions by a com petent authority, the Court would not enter into the sifting investigation with regard to the guilt or the innocence of the accused-detainee, especially where prima facie, the arrest has been made on the charge of a penal offence.

The next point urged by the learned Counsel for the petitioner is that subsection (d) of section 2 of the Pakistan Army Act, under which the detenu has been arrested, was introduced by an amending Act known as the Pakistan Army (Amendment) Act of 1971. He has urged that section 19 of the Azad Jammu and Kashmir Government Act of 1970 and section 31 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, place a bar on the powers of the Legislative Assembly and the Azad Jammu & Kashmir Council to legislate, relating to the matters concerning the defence, and security of the Azad Jammu and Kashmir. Therefore, the amendment Act of 1971, whereby subsection (d) was added to section 2 of the Pakistan Army Act is violative of section 19 of the Azad Jammu & Kashmir Government Act of 1970 and as such, is not a valid legislation. For the sake of convenience, the relevant part of the aforesaid provisions are reproduced below :-

Section 19 of the Azad Jammu & Kashmir Act of 1970-

19. (a) Subject to the provisions of subsection (3), the Legislative Assembly has power to make laws :-

(b)

(c) .

(d) .

(3) The Legislative Assembly shall not have the powers to make any law concerning :--

(a) the responsibilities of the Government of Pakistan under the UNCIP Resolution ;

(b) the defence and security of. Azad Jammu and Kashmir ;

(c) the current coin or the issue of any bills, notes or other paper currency."

Section 31 of the Azad Jammu and Kashmir Interim Constitution Act of 1974

Legislative Powers.-(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the powers to make laws ;-

(a) ..

(b) . .

(c) ..

(2) ..

(b) .

(3) Neither the Council nor the Assembly shall have the powers to make any law concerning :--

(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions; or

(b) the defence and security of Azad Jammu and Kashmir ;

(c) the current coin or the issue of any bills, notes or other paper currency ; or

(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid."

Before dealing with the point raised by the learned Counsel for the petitioner, it may be pointed out that the Pakistan Army Act of 1952 was adopted in the Azad Jammu and Kashmir State, vide Adoptation of Law C Order of 1956 (Council Order No. 43/56). Under section 29 of the Azad Jammu and Kashmir Government Act of 1970 and section 51of the Azd Jammu and Kashmir Interim Constitution Act of 1974, the laws which were in force before the promulgation of the said Constitutional Acts, were given a protection and were to continue to be in force as valid laws. Consequently, the Pakistan Army Act of 1952 which had been adopted in the State in yea 1956, enjoyed protection under the aforesaid Constitutional Act and continues td be a valid law on the Statute Book of the Azad Jammu and Kashmir State. Even otherwise, the Army Act of 1952 relates to the disciplinary matters of the defence forces and it is not a law relating to the defence and security of Azad Jammu and Kashmir as stipulated under section 31 of the Azad Jammu and Kashmir Interim Constitution Act of 1974.

The only point which needs determination is as to whether the Azad Jammu and Kashmir Legislative Assembly had the powers to pass the Pakistan Army (Amendment) Act of 1971, adding subsection (d) to section 2 and sub section (4) to section 59 of the said Act, whereby persons guilty of certain offences, were not subject to the provisions of the Pakistan Army Act pre viously, were made subject to it, and as such, were to be tried by the Military Courts for certain offences. Obviously; the primary purpose of the aforesaid amending Act was to extend certain provisions of the Army Act to the civilians charged for certain offences. The object of the amendment was not to legislate for the defence and the security of the Azad Jammu and Kashmir State, within the meanings of section 19 of the Constitutional Act of 1970. The bar contained in section 19 of the Azad Jammu and Kashmir Govern ment Act of 1970, or in section 31 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, would be attracted only if a law deals specifically and directly with the matters relating to the defence and security of the Azad Jammu and Kashmir ; such as by raising an army or any paramilitary force -etc. The law-giver did not intend to put a bar on the legislative powers of the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu & Kashmir Council, concerning the matters which do not strictly fall within the ambit of preserving the security of the State from external aggression. At the most, it can be said that the aforesaid amendment was brought in the Pakistan Army Act to give jurisdiction of the trial of certain offences committed by civilians, to the Military Courts. More or less, similar question came up for consideration before a Division Bench of this Court in a case reported as P L D 1981 A J- K 107, whereby the adaptation of N. C. C. and Women Guard Act in Azad Kashmir was challenged on the ground that it is violative of the pro visions contained in section 31(3) of the Azad Jammu and Kashmir Interim Constitution Act of 1974. It was contended in that case that the matter fell within the ambit of 'defence And security of the Azad Jammu and Kashmir and thus, neither the Azad Jammu and Kashmir Assembly nor the Azad Jammu and Kashmir Council was competent to legislate to adopt the afore said enactment in the State. It was held in the aforesaid case that the purpose of the aforesaid Act was to impart simply an academic training to the students and it had no concern with the defence and security of the Azad Jammu and Kashmir as visualized under section 31(3) of the Azad Jammu and Kashmir Interim Constitution Act.

It is basic rule of interpretation of Statutes that words and phrases use in a Statute, should be given ordinary and natural dictionary meanings unless defined by the Statute itself. Phraseology or term used in a Statute, should g not be so stretched as to encompass the sphere which the Legislature did not intend. The expression defence and security of Azad Kashmir' used in sections 19 and 31 of the Constitutional Acts of 1970 and 1974. cannot be interpreted to mean that bar stipulated by the expression would apply interpreted the extension of matters such as jurisdiction of Military Courts to ancillary mans who are charged for commission of certain offences.

In the light of what has been stated above, finding no force in this habeas corpus petition, it is hereby dismissed.

Petition dismissed.

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