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Criminal Appeal No. 7 of 1957, decided on 2nd August 1957, from the order of Additional District Magistrate, Mirpur, dated 26th February 1957.

, S. 549‑Rules framed by Azad Kashmir Government under S. 549‑Ultra vires, being not consistent with provisions of S. 94, Pakistan Army Act (XXXIX of 1952).

Muhammad Hussain appellant : in Police custody.

Muhammad Sharif, for Government.

--‑ This is an appeal against the order of Additional District Magistrate, Mirpur dated the 26th February 1957 whereby the accused‑appellant was con victed under sections 307, 148 and 323, A. P. C. and sentenced to five years' rigorous imprisonment, one year's rigorous imprisonment and six months' rigorous imprisonment res pectively tinder each count ; the sentences to run concurrently.

According to the prosecution, the appellant along with six other accused beat the complainant on 2nd May 1954, in the evening when the latter was coming from the Mosque after saying his prayers there. Alif Din (P. W.) who too way in the mosque reached the spot on hearing the noise of his brother Fazal Din complainant (now dead). The accused appellant and one Noor Hussain were alleged to have been armed with 'kulharis' while the rest of the accused had sticks. The complainant had as many as 16 simple injuries. Alif Din (P. W.) was also belaboured when he intervened. Although the wounds of the complainant were simple, yet we wounds were lacerated wounds and four were incised wounds on the head. The co‑accused of the appellant were separately tried and convicted by the trial Court which con viction was up‑held right to the High Court.

In the case of the appellant, Alif Din, Fazal Hussain. Muhammad Malik. Noor Hussain, Doctor Abdul Majid Siddiqi and Mirza Imdad Ali, Sub‑Inspector appeared in support of the prosecution. Alif Din corroborated the first informa tion report. The motive for the offence was stated to be enmity on account of the marriage of Mst. Raishman Bibi, niece of the accused appellant to one Abdur Rahim against the wishes of the appellant. Fazal Hussain, Muhammad Malik and Noor Hussain eye‑witnesses in the case support Alif Din. Doctor Abdul Majid Siddiqi described the injuries on the complainant and Alif Din P. W. The accused denied the charge. He, however, did not produce any body in defence There appears to be no reason to disagree with the finding arrived at by the trial Court. The evidence produced in the case is quite satisfactory in bringing the offence home to the accused. We, therefore, up‑hold the conviction as well as the sentence passed on the accused appellant.

There is, however, one legal point involved in the case. It is that the accused appellant was a Pak Army Personnel. The Additional District Magistrate, Mirpur by his order dated the 28th August 1956 had held that since the accused was employed in the Pak Army, he could not be tried by him in view of the Government Order No. 286/52 which runs as under :‑

"(1) The personnel of the Pakistan Army accused of Civil Crime in Azad Kashmir Territory shall be tried by Court Martial regardless of the nature of the crime.

(2) Such accused personnel shall be detained in army, custody but be made freely available for interrogation as

necessary by the Civil Police.

(3) Pakistan Army personnel caught in the act of com mitting a Civil Crime, would be subject to arrest by the

Civil Police but be handed over immediately to the Military Authorities.

(4) The civil authorities would have the right to appoint an official observer to attend the trial by Court Martial of any Pakistan Army personnel accused of civil crime in Azad Kashmir Territory and would also be informed of the result of all such trials.

(5) These rules shall remain in force till such time the A. K. Government directs otherwise."

He, therefore, sent the file to the District Magistrate, Mirpur to take up the matter with the military authorities. The following letters were addressed by the District Magistrate, Mirpur to the Officer Commanding, 2/14 Punjab Regt., Jhelum :‑

(1) No. 3778 dated 4‑6‑1955 ;

(2) 720‑21 dated 7‑4‑1956 ;

(3) 24‑25 dated 11‑1‑1957 ;

requesting him to intimate where the accused was to be tried so that the papers concerning the accused may be sent to that office, but no reply seems to have ever been received of these letters. In the meantime, one Mian Khan, a co-accused of the appellant in another case in which he was convicted for murder applied to this Court to be released on bail and in that connection, the case of the appellant also came to the notice of this Court. This Court by order dated the 17th January 1957, rejected the bail applica tion of Mian Khan and ordered commitment proceedings to be continued against the accused appellant with a direc tion that in the mean‑while the military authorities might be contacted and if they took the accused appellant into their custody and put him on trial before the Court Martial, there would be no necessity to adjourn the appeal of Mian Khan against his conviction. Here, it may be remarked that Mian Khan's appeal against his conviction for murder was kept pending on the ground that his co‑accused, the appellant's case was not yet ripe for appeal and it was intended to dispose of both the appeals in case the appellant also preferred an appeal in case of his conviction for murder, at a time.

Under section 549, Criminal P. C.. the Government may make rules consistent with the Criminal P. C. and the Army Act. It is to be seen whether the Rules as framed under section 549. Criminal P. C. and reproduced above are con sistent with section 94 of the Pakistan Army Act, which is in force in this territory, or not. Section 94 of the Pakistan Army Act runs thus :‑

"When a Criminal Court and a Court martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a Court martial, to direct that the accused person shall be detained in military custody."

From this section, it is clear that it is entirely dis cretionary with the prescribed military authority to decide before which Court an accused person shall be tried and if it decides that the proceedings shall be instituted before the Criminal Court (Civil), then the accused person shall be tried by a Criminal Court. The Rules as framed under section 549 of the Criminal P. C. excludes the jurisdiction of the Civil Court, even if the prescribed military authority desires the trial of an accused by a Criminal Court. In this sense, these Rules conflict with the provisions of section 94 of the Pakistan Army Act and are clearly inconsistent with it. We, therefore, hold, that the Rules as framed by the Government under Government Order No. 286/52 under section 549, Criminal P. C., are not consistent with section 94 of the Pakistan Army Act and are ultra‑vires.

Before coming to the conclusion, at this stage it may be stated that inspite of the lapse of about three years the military authorities never intimated the trial Court that the accused should be handed over to them for trial before the Court Martial The period of three years is more than a reasonable time for the criminal Court to wait for a requisition from the military. It can, therefore, easily be presumed that the military authorities agreed to the trial of the accused appellant by the Criminal Court.

The result is that as there is no substance in the appeal, it is hereby dismissed.

K. M. A. Appeal dismissed.

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