MUHAMMAD ASHRAF Versus THE STATE

By this judgment I propose to dispose of following two matters in which common question of law and fact are involved:

(1) Writ Petition No.8262 of 1995: Muhammad Ashraf v. Home Secretary and 3 others.

(2) Criminal Revision No.233 of 1995: Muhammad Ashraf v. The State

2. The relevant facts are that on 9‑2‑1993 Naik Muhammad Ashraf, petitioner herein, who was serving in the Pakistan Army was tried by Field General Court Martial under section 59 of the Pakistan Army Act for the murder of Sepoy Javed lqbal who was also serving in the Pakistan Army as a cook. He was found guilty and sentenced to pay Rs.1,07,000 as Diyat money to the legal heirs of the deceased and to suffer five years' rigorous imprisonment. He was also dismissed from service. Subsequently, the General Officer Commanding remitted his remaining imprisonment and he was ordered to be lodged in the civil prison till the payment of the Diyat money. On 8‑5‑1994 the petitioner made an application under section 331, P.P.C before the Sessions Judge, Gujrat for permission to deposit the amount of Diyat in easy instalments and the release of the petitioner on bail. The learned Sessions A Judge vide order dated 8‑5‑1994 dismissed the said application holding that since the petitioner was tried by a Court Martial he had no jurisdiction. Feeling aggrieved the petitioner lodged a revision petition in this Court which was disposed of vide order dated 19‑2‑1995 directing the learned Sessions Judge to rehear the petitioner's application on merits and dispose of the same through a speaking order. In compliance with the said order the learned Sessions Judge reheard the parties and vide order dated 4‑5‑1995 dismissed the application holding that he has no jurisdiction in the matter. Feeling aggrieved the petitioner has challenged the said order through the abovementioned criminal revision and writ petition.

3. In the revision petition the petitioner has prayed for the setting aside of the order dated 4‑5‑1995 passed by the learned Sessions Judge, his release on bail and permission to pay Diyat money in easy instalments. In the writ petition instituted after the aforementioned revision petition the petitioner besides challenging the validity of the above mentioned order of the learned Sessions Judge has shown his willingness to deposit the whole of the Diyat money and has prayed for the issuance of a direction to the Home Secretary, Pun jab to accept the said amount for disbursement to the heirs of the deceased. He also prayed for his release from jail after the deposit of the Diyat money.

4. 1 have heard the parties' learned counsel and have also gone through the material available on record.

5. Learned Sessions Judge has held that since the petitioner has been convicted and sentenced by Court Martial the Civil Courts did not have jurisdiction to hear any matter relating to his said conviction and sentence. He relied on section 133 of the Pakistan Army Act which runs as follows:

"133. Bar of appeals.‑‑‑No remedy shall lie against any decision of a Court Martial save as provided in this Act, and for the removal of doubt it is hereby declared that ‑no appeal or application shall lie in respect of any proceeding or decision of a Court Martial to any Court exercising any jurisdiction whatever."

Conversely, learned counsel for the petitioner is the view that in the present case Pakistan Army Act was not applicable to the‑,petitioner and therefore, the Sessions Court had the jurisdiction to pass an appropriate order under the ordinary laws. They further maintained that section 133 of the Pakistan Army Act was no bar to the ' petitioner's application because he was not questioning the decision of any Court Martial.

6. From a plain reading of section 133 ibid it is manifestly clear that the bar contained therein relates to appeals or application directed against the decisions of a Court Martial. In other words no one can question the validity of decision of a Court Martial in any Court. The application which the petitioner moved before the learned Sessions Judge was not against the decision of the Court Martial in so far as he had not challenged his conviction and sentence. In fact he had prayed for the implementation of the said decision. In this view of the matter the petitioner's application was not barred.

7. It is an admitted fact that the petitioner has been dismissed from service and has been remitted to civil prison where he shall be lodged till the payment of Diyat money. It is also an admitted fact that the Court Martial which had passed the order of conviction has since been dissolved. In these circumstances the petitioner would not be governed by the Pakistan Army Act Section 2 (2) of the Pakistan Army Act lays down:

"Every person subject to this Act under clause (a) or clause (b) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service."

Rule 155 of Pakistan Army Act Rules provides that when the sentence of dismissal is combined with transportation or imprisonment which is carried out in civil prison the dismissal shall not take effect until the date on which the prisoner is received into a civil prison. In this view of the matter when the petitioner has already been remitted to the civil prison he is no more subject to the Pakistan Army Act. Resultantly, ordinary laws of the land would be applicable to him. In these circumstances learned Sessions Judge has jurisdiction to hear the petitioner's application and make appropriate order. The impugned order, therefore, is without lawful authority, illegal and not sustainable. Consequently, this writ petition is allowed and the impugned order is set aside.

8. Since the petitioner is now prepared to deposit the whole of Diyat money i.e. Rs. 1,07,000 the pra yer in th e revision petition to the effect that he be released on bail and Diyat be made payable through easy instalments has become infructuous. The petitioner 11c'; directed to deposit the aforementioned Diyat money in the Treasury. after getting permission from the learned Sessions Judge, Gujrat. He shall then make an application before the learned Sessions Judge for the disbursement of the said money to the heirs of the deceased with their particulars. After that the learned Sessions Judge shall make an order for the release of the petitioner from Jail and the disbursement of Diyat money to the legal heirs of Javed lqbal deceased.

9. In view of what has been stated above the petitions are disposed of.

N.H..Q./M‑2627/L

Petition allowed. s