State Versus Mst. SHAZIA MUBASHIR Muhammad Khan , Muhammad Akram
This matter concerns an application for the cancellation of post-arrest bail granted to the respondent by the Special Court (Anti-Terrorism), Rawalpindi. The respondent, previously acquitted by a Field General Court Martial (FGCM), faced a subsequent trial in the Anti-Terrorism Court for the same incident. The State contended that the FGCM trial was limited to specific charges under the Pakistan Army Act, 1952, and did not bar the current prosecution. Conversely, the respondent argued that Section 96 of the Pakistan Army Act, 1952, read with Section 403 of the Code of Criminal Procedure 1898, created a statutory bar against a second trial for the same facts. The Court held that the respondent’s case warranted further inquiry, noting that the FGCM proceedings encompassed the same facts as the FIR. Consequently, the Court dismissed the bail cancellation application, affirming that the trial court correctly exercised its discretion in granting bail. The Court clarified that these observations were tentative and should not prejudice the pending application for acquittal under Section 265-K of the Code of Criminal Procedure 1898.
- Does a trial by a Field General Court Martial bar a subsequent trial for the same facts under Section 96 of the Pakistan Army Act 1952?
- Can bail be cancelled when the accused has already been acquitted by a Field General Court Martial for the same incident?
- Is a case considered one of 'further inquiry' when the accused has been acquitted by a military tribunal for the same facts alleged in a criminal FIR?
- Section 31(d), Pakistan Army Act 1952
- Section 96, Pakistan Army Act 1952
- Section 403, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
ORDER
This application has been filed for cancellation of post-arrest bail granted to the respondent by a learned Judge Special Court-I, Anti-Terrorism, Rawalpindi Division on 12-9-2007, in case F.I.R. No.934, dated 25-2-2003, registered at Police Station, Civil Lines, Rawalpindi.
2. Learned A.A.-G. contends that notwithstanding the fact that the respondent had been acquitted by Field General Court Marital (FGCM), there was no bar upon her trial in the said case F.I.R. According to him, she was tried only under section 31(d) of Pakistan Army Act, 1952 and not for the other offences mentioned in the F.I.R.
3. Col. (R) Muhammad Akram, Advocate for the respondent draws our attention to the copies of various proceedings, particularly, the schedule of charges on which the respondent and her co-accused were tried by the FGCM, to urge that section 96 of Pakistan Army Act, 1952 read with section 403, Cr.P.C. constitutes a complete bar to her second trial. Additionally argues that the reasoning recorded by the learned Judge Special Court are sound and no extraordinary grounds stand made out for cancellation of bail.
4. We have gone through the available records with the assistance of the learned counsel for the parties. There is no dispute whatsoever, that the respondent was tried by the FGCM and was acquitted: She was arrested on 3-1-2004 while final decision of the FGCM was given on 23-8-2005 whereby eight co-accused were awarded various sentences including death and terms of rigorous imprisonment, the respondent who was arrayed as accused No.9 before FGCM, was acquitted. Her arrest was shown in the said F.I.R. as 24-8-2005. She filed an application under section 265-K, Cr.P.C. claiming acquittal as a retrial was barred by law. We are told that the matter has still not been decided.
5. An examination of the schedule shows that the respondent and her co-accused were charged with all offences mentioned in the F.I.R. including terrorism and murder.
6. We have also examined the F.I.R. Although the respondent or for that matter any other person is not nominated therein but the acts committed have been described. Section 96 of Pakistan Army Act, 1952 bars a retrial not only for the same offence but also on the same facts. To our mind, learned Judge Court-I, Anti-Terrorism, Rawalpindi Division has correctly opined that the case of the respondent is of further inquiry entitling her to bail after incarceration of more than three years during which period she was tried by the FGCM and acquitted.
7. Criminal Miscellaneous accordingly is dismissed. We may clarify here that the aforenoted observations are tentative in nature and would not at all be of any relevance in the matter of decision of the application under section 265-K, Cr.P.C. filed by the respondent which shall be decided by learned Judge Special Court-I, Anti-Terrorism, Rawalpindi Division on its own merits, applying his own mind, in the light of the material available on record.
H.B.T./S-73/L Petition dismissed.