Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 SHC 2791
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 4233/2024 (D.B.) Sindh High Court, Karachi - Abdul Monem (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 2791. In this matter between Const. P. 4233/2024 (D.B.) Sindh High Court, Karachi - Abdul Monem (Petitioner) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Const. P. 4233/2024 (D.B.) Sindh High Court, Karachi CITATION: 2025 SHC KHI 2791 PARTIES: Abdul Monem (Petitioner) ORDER DATE: 22-OCT-25 BENCH: Hon'ble Mr. Justice Muhammad Faisal Kamal Alam(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, AT KARACHI
C.P. No.D-4233 of 2024
(Abdul Monem [Ex. Chief Technician] versus Vice Chief of Air Staff [Pakistan Air Force] and others)
PRESENT: MR. JUSTICE MUHAMMAD FAISAL KAMAL ALAM MR. JUSTICE JAWAD AKBAR SARWANA
Date of hearings : 28.04.2025 and 21.05.2025
Petitioner (Abdul Monem (Ex. Chief Technician]) : Through M/s. Umar Farooq and Sumaera Noreen, Advocates.
Respondents No.1 to 5 (1. Vice Chief of Air Staff [Pakistan Air Force], 2. Ministry of Defence, 3. ACAS [PA] Sect [Ad Discipline], 4. Officer Commanding [Base Commander] and 5. WG CDR Zahid Hussain Memon) : Through Ms. Shazia Hanjra, DAG along with Mr. Adnan Hanif, Law Officer of PAF
Law under discussion: (1). The Constitution of the Islamic Republic of Pakistan, 1973.
(2) The Pakistan Air Force Act, 1953, ( the Act)
(3) The Pakistan Air Force Rules, 1957 (PAF Rules).
Case Law cited by the Petitioner‟s Counsel.
1) PLD 1989 Supreme Court 6 [Pakistan through Secretary, Ministry of Defence vs. the General Public]-MOD Case
2
CP No.D-4233 of 2024
2) PLD 2007 Supreme Court 498 [Federation of Pakistan and others vs. Raja Muhammad Ishaque Qamar and another]-Raja Case
3) 2014 SCMR 1530 [Federal Government M/o Defence, Rawa lpindi vs. Lt. Col. Munir Ahmed Gill]-Gill Case
4) 2012 SCMR 1229 [Federation of Pakistan through Secretary Defence and others vs. Abdul Basit]-Abdul Basit Case
5) PLD 2020 Supreme Court 1 [Jurists Foundation through Chairman vs. Federal Government through Secretary, Ministry of Defence and others]-Jurists Case
6) PLD 2017 Supreme Court 173 [Khushdil Khan Malik vs. Secretary, Ministry of Defence Rawalpindi Cantt and others]-Malik Case
7) 1999 SCMR 2744 [Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad vs. Muhammad Tariq Pirzada and 2 others]-Tariq Pirzada Case
8) Judgment of Supreme Court of Pakistan in Civil Appeal Nos.106 to 109 and 141 of 2010 [Ex-Chief Warrant officer Ali Gohar and others vs. Federation Of Pakistan]
Case Law relied upon by Respondents‟ Counsel.
1) 1994 SCMR 2286 [Muhammad Mushtaq vs. Federation of Pakistan]- Mushtaq case 2) 2018 PLC (C.S) Note 85 [Muhammad Asif vs. Federation of Pakistan through Secretary and 3 others]
3) 2005 PLC (C.S) 64 [Havaldar Mian Ramzan vs. Federal Government, Ministry of Defence, through Chief of the Army Staff, General Headquarters, Rawalpindi]
4) 1979 SCMR 555 [Sabir Din vs. Gov ernment of Pakistan through Secretary, Ministry of Defence and others]-Sabir Din case
5) 2024 SCMR 1258 [Abdullah Jumani and others vs. Province of Sindh and others]
3
CP No.D-4233 of 2024
Other Precedents
1. I.C.J. Reports 2019, Page-418 [India versus Pakistan]-Kulbhushan Jadav Case
2. 2019 PLD Sindh 697 [Gulzar Ahmed versus Province of Sindh and others]-Gulzar Ahmed Case
3. 2013 SCMR 1880 [Hamid Mir versus Federation of Pakistan]-Hamid Mir Case
4. PLD 2009 SC 879 [Sindh High Court Bar Association versus Federation of Pakistan]- SHCBA Case
5. PLD 2021 SC 770 [Asad Ali Khan and others versus Province of Punjab and others]- Asad Case
6. PLD 2021 SC 812 [Ghulam Qasim and others versus Mst. Razia Begum and others]- Razia Begum Case.
7. 2021 PLC (C.S.) 92 (PHC) [Umar Islam versus Federation of Pakistan through Secretary Defence]-Umar Islam Case
8. PLD 2020 Islamabad 428 [Sarfaraz Khan versus Chief of Air Staff (Pakistan Air Force), Islamabad]-Sarfraz Case
9. PLD 2012 Supreme Court 774 [Muhammad Azhar Siddiqui versus Federation of Pakistan]-Azhar Case
10. PLD 2025 Supreme Court 440 [Senior Joint Director Foreign exchange operations division SBP versus Federation of Pakistan]-SBP Case
11. PLD 1957 Supreme Court 9 [Jibendra Kishore Achharyya Chowdhury versus Province of East Pakistan, Secretary Finance and Revenue]-Jibendra Case
12. PLD 2018 Sindh 360
4
CP No.D-4233 of 2024 [Mohammad Sarwar versus Government of Sindh (Karachi High Court)-Sarwar Case
Research Material / Books
1) Book Rooh Al Maarif { a summary and compilation done by Shah Maqsood Ahmad Arafi of Eight Volumes of Maarif ul Quran, a Tafseer (Exegesis) of the Holy Quran (by Shaykh Mufti Muhammad Shafi) }.
2) Constitutional Limitations, authored by Khalid M. Ishaque.
3) The Fundamental Law of Pakistan {1st Edition} By A. K. Brohi.
4) The Politics of the US Supreme Court {Richard Hodder-Williams}
5) The Due Process of Law By Lord Alfred Denning
6) Towering Judges: A Comparative Study of Constitutional Judges Edited by Rehan Abeyratne and Iddo Porat
JUDGMENT
5
CP No.D-4233 of 2024
MUHAMMAD FAISAL KAMAL ALAM, J: The Petitioner has challenged the dismissal from service vide Correspondence dated 14.06.2024 (the „Impugned Dismissal Order‟), issued under Section 20(1) of the Pakistan Air Force Act, 1953, ( the Act ) Read with Rule 31 -A of Pakistan Air Force Rules, 1957 (PAF Rules).
The Petition contains the following Prayer Clause_ “In the light of above said conspectus of facts and law, it is therefore respectfully prayed that this Honourable High Court be graciously pleased to pass the following orders:-
i. That Honourable court may please set aside order of dismissal of the Petitioner as informed vide letter dated 14 June, 2024 passed by the Respondent # 1, by declaring the administrative action is illegal, unconstitutional, malafide, without jurisdiction, Coram non Judice and Petitioner be reinstated in service with all his past, present and future benefits.
Or/And
Petitioner may please be retired honourably from his service, with full service benefits and his period of service may please be considered till date of fin al decision / order of this Honourable Court or Apex Court.
ii. That Honourable court may please declare Section 20 (1) of the PAF Act 1953 and rule 31 -A of the PAF Act Rules 1957 are ultra vires to the Section 52, 53, 65, 73, 74, 76, 81, 82, 86, 87, 88 162( B) of the PAF Act, 1953 and repugnant to the Constitution of the Islamic Republic of Pakistan, 1973 as there should be an opportunity of fair trial and right of appeal for individual at independent forum.
iii. To declare that dismissal of the petitioner as pe r Section 20(1) PAF Act 1953 read with rule 31 -A of the PAF Act
6
CP No.D-4233 of 2024 Rules 1957 without adopting any court martial trial procedure is contrary to Pakistan Air Force Act of 1953 and ultra vires/repugnant to the Constitution of the Islamic Republic of Pakistan, 1973.
iv. To declare that Show Cause Notice issued to the petitioner is illegal and all proceedings conducted thereafter on the basis of said Show Cause Notice are null and void as well as without any force of law.
v. Any other relief, which this Honourable Court deem thinks fit, proper and appropriate, may also be awarded to the petitioner, in the greater interest of justice.”
2. Mr. Umar Farooq, Petitioner‟s learned Counsel assisted by Ms. Sumaera Noreen (Advocate), argued on the basis of the averments mentioned in the Petition. Contends that due to health issues, Petitioner was posted at PAF Base Masroor (Karachi) from PAF Base (Sargodha), on medical compassionate grounds with effect from 15.01.2024, as at his former Base, no Spinal Surgeon was available.
3. Averred that on 22.06.2020, an Inquiry was ordered against the Petitioner in respect of embezzlement of service medicines, vide, Base Routine Orders [BRO] No.118, dated 22nd June 2020. The Board of Inquiry [BOI], as per Air Force Or der [ AFO] No.111 -56, Para 6(a), is to be completed within (15) fifteen days, which was not done; rather, Respondent No.1 took four years to give the above impugned Order against the Petitioner.
4. Argued that the Petitioner cross-examined the Witnesses [in terms of Rule 191 (15) (a and b)], and none of the Witnesses testified against the Petitioner that the latter is involved in claiming medicines by misusing the names of other employees [of Respondent] and is responsible for financial
7
CP No.D-4233 of 2024 embezzlement. One Squadron Leader-Irfan Lashari, who was a Member of the Board of Inquiry, was biased towards the Petitioner and during proceedings he passed insolent remarks, which violated Paragraph 18(e) of AFO [Air Force Order] No.111 -57; that evidence of the Officers at tached with the Pakistan Air Force Hospital Faisal, did not testify against the Petitioner; referred to Paragraph -17 of his Petition, that even the Investigation Officer of the Board of Inquiry, Squadron Leader -Ahsan Safoor, was dismissed from service bein g involved in immoral activity, and thus, the entire Investigation Report has become questionable. Contends that while the Board of Inquiry proceeding was sub judice, through an illegal Order dated 11.09.2021 , another „Additional Board of Inquiry‟ [ABOI] w as formed, in which the Petitioner was never called, but the witnesses were re -examined, without giving the Petitioner the opportunity to cross/re-examine them, which is a glaring violation of Air Force Order [AFO] No.111-57, Paragraph -18 (b and c), providing the procedure for evidence recording and gives the accused persons / affected persons the right to call and cross -examine the Witnesses. Contends that in month of September 2022, a Summary of Evidence was order ed by DCAS (Admit) AHQ Islamabad. Petitioner attended the proceeding and he was confronted with six charges [mentioned in Annexure “G”; page -113 of the Petition ], inter alia, about receiving illegal financial gain from fake medicine prescription by misusing the name of other employees of Respondent -PAF, who are although the prosecution witnesses, but did not implicate the Petitioner in the Offence complained of, yet the Petitioner has been given punishment. Petitioner submitted his Statement of Defence befo re the Summary Recording Officer on 28.02.2023 in response to all the Charges. Purportedly, another illegality was committed, when, after the lapse of
8
CP No.D-4233 of 2024 more than one year, Petitioner was issued the Show Cause Notice dated 15.03.2024 by the Respondent No.5 ( Officer Commanding), which too was replied to, but, it was not considered, and consequently, followed by the impugned Order.
5. Learned Counsel has stated that Section 20 is violative of the PAF Act and the Constitution, in particular Articles 9 and 10 -A (relating to life and fair trial), because this Section 20 is usually misused to dismiss the employees, who cannot be punished or dismissed from service otherwise, in accordance with the Act and Rules; it violates the due process of law, because it can be invoked, without following the prescribed procedure of the Board of Inquiry in the PAF Act and Rules. That no higher forum is provided against the dismissal under Section 20, as against other similar provisions mentioned in PAF Act, such as Sections 73, 7 4, 76, 81 and 82, in respect of which a Review can be filed invoking Section 88 of the PAF Act. Contends that the entire second proceeding, that is, ABOI violates Section 120 of the PAF Act, which provides a limitation period of three years, from the date of the offence committed, for initiating a trial. Similarly, has invited our attention to Sections 160 and 162 -B, providing an Appellate Forum, for punishment awarded in offences other than Hudood Cases, including dismissal from service; besides Section 17 7, which is a general pardon; while elaborating that even this pardon and remission is only available for those who have been convicted by the Court Martial and since the Petitioner was not, therefore, even this provision, he is unable to invoke to seek de partmental remedy; that the Impugned Dismissal Order should have been issued under Rule 31 -A by the Vice Chief of Air Staff (VCAS), but the same is issued by the Squadron Leader; under Rule 31 -A the authority cannot be further delegated [in view of Note ( e) of Section
9
CP No.D-4233 of 2024 20], and thus, the Impugned Order is unauthorizedly issued. Referred to Note (c) of Sub-Section [1] and (a) of Sub-Section [2] of Section 20 [of the Act], and argued that the above provision can be invoked if either the Petitioner would have been sentenced to imprisonment, or, in case of an offence, be tried by a Court Martial; but, neither has been done and thus, the impugned Order under Section 20 is an illegality; in furtherance of his submission, referred to Sections 65 and 73 [of the Act ], regarding short imprisonment and dismissal; the latter can be used only after a court - martial.
Filed a Review dated 26.02.2024 [Annexure - L], before the Chief of the Air Staff, but no Decision was given. Cited the Case Law mentioned in the opening part of this Judgment.
6. Ms. Shazia Hanjra, the learned Deputy Attorney General, along with Mr. Adnan Hanif, the Law Officer of Pakistan Air Force, have controverted the above arguments and questioned the maintainability of the Petition. Justified the dismissal of Petitioner under Section 20, Read with Rule 31(A) of the Act and Rules (respectively). Cont ends that a Show Cause Notice of 15.03.2024 was issued to the Petitioner, which was replied by him, providing that he was giving ample opportunity and due process was completed in proceeding against him on number of Charges (supra). Averred that the Board of Inquiry was held under Rule 191 of the Rules, in which seven personnel, including Petitioner, were found responsible for the embezzlement of service medicines. Denied the contention of Petitioner‟s Counsel, the Board of Inquiry should be completed within fifteen (15) days, in terms of AFO 11-56 [ibid], and states that it is a mere guideline and not mandatory. Has categorically disputed the assertion of Petitioner‟s plea, that the Board of Inquiry consisted of
10
CP No.D-4233 of 2024 Members, who was / were biased. Due to certa in intricate questions involved in the subject dispute, the Additional Board of Inquiry was convened in accordance with Rule 191 (17) of the said Rules. Stated that the impugned dismissal Order is issued by the Authority at Islamabad and thus this Court la cks territorial jurisdiction; argued the non-maintainability of this Petition on the strength of Case Law cited by her, so also Sub -Article (3) of Article -8 and Sub -Article (3) of Article 199 of the Constitution, and stated that the constitutiona l command is, that the jurisdiction of this Court is barred in such nature of cases. Has referred to her Written Arguments and in particular Paragraph -5 [reproduced below], that Article 8(3)(a) of the Constitution, recognizes that the Armed Forces be governed by special laws, which means, that Constitutional guarantee under Clause (1) of Article 8, that a law [custom or usage] which is inconsistent with the fundamental rights is/are void, does not apply to the Petitioner, or for that matter to the members of the Armed Forces. “5. Military discipline forms the backbone of the Armed Forces and is indispensable for ensuring collective national defense. In this context, Article 8(3)(a) of the Constitution of the Islamic Republic of Pakistan, 1973, recognizes an d affirms that the Armed Forces may be governed by special laws enacted for ensuring the proper discharge of duties and the maintenance of discipline within the ranks.”
Legal Team of the Respondents argue that a Constitution Petition, if at all lies, is only against factum of mala fide, which is hardly alleged by the Petitioner, except in Paragraph -11 of the Petition, which is a general allegation and not a specific one, and is to be discarded. By referring to the averments of Petition, it is argued that the Petitioner himself admitted that he was given an ample and fair opportunity to present his Case, and even
11
CP No.D-4233 of 2024 evidence is recorded. Thus, no illegality exists in the entire Proceeding before the Respondent. 7. In Paragraph-8 [Written Arguments], it is aver red, that keeping with the spirit of the Pakistan Air Force legal framework, it is the prerogative of the Commanding Officer to determine the applicability of statutory provisions and Rules, having due regard to operational exigencies, disciplinary conside rations, and the morale of personnel under his command. In this context, Rule 41 and AFO -111-58 are relevant. In their submissions, the Legal Team of Respondent -PAF, has argued that Section 20 [1], (ibid), is appropriately invoked. 8. To augment the argume nts, learned DAG has cited the Decisions, which have already been reproduced in the opening paragraph of this Judgment.
Arguments heard and Record Perused.
9. On a question, learned DAG clarified that no Additional Board of Inquiry was held, as stated by the Petitioner‟s side, but a second chance was given to Petitioner to appear before the competent Authority to present his case. In response to the objection of the Petitioner‟s Counsel that the Original impugned Order (information Order) is neither filed nor attached, the learned DAG referred to Rule 191 (19) of the Rules and states that the Proceeding of the Board of Inquiry is privileged and is not subject to disclosure, except as provided in the said Rule.
Whether the present Constitution Petition is maintainable
10. Summary of the Case Law cited by the Petitioner‟s Counsel_
12
CP No.D-4233 of 2024 the Judgment in the case of Ministry of Defence (supra) has held that non -provision of the right of Appeal generally and in the Defence Laws, viz. the Pakistan Army Act, Pakistan Air Force Act, and the Pakistan Navy Ordinance, is repugnant to the injunctions of Islam. The bar contained in sub-Article (3) of Article 199 of the Constitution, in respect of cases of Military Personnel, is not attracted where the impugned action is found to be without jurisdiction, coram non judice or mala fide.
In Gill Case (a serving Officer of the Pakistan Army) was tried by a Field General Court Martial (FGCM) on the charges relating to money matters and improperly filing of Tax Return, found guilty on all four counts and awarded a sentence of dismissal from service coupled with one year rigorous imprisonment, which upon sending the matter for confirmation to the Chief of Army Staff, sentence was remitted while maintaining the Order of dismissal from service. The Appeal filed before the Army Court of Appeal was dismissed, which was challenged before the learned Lahore High Court and the Writ Petition was allowed; which was challenged by the Federal Government before the Apex Court . The Hon‟ble Supreme Court has reiterated the legal principle that in such matters where the action of Military Authorities regarding a serving officer, is tainted with mala fide, coram non judice or without jurisdiction, then it is assailable in the writ jurisdiction under Article 199 of the Constitution of Pakistan. Sections 52 and 55 of the Army Act are omnibus provisions relating to the general behavior and conduct of an Army Officer, which could cover a wide variety of conduct of a person concerning h is day to day behavior with others, his / her integrity and good conduct, and can include the allegations of falsifying the Income Tax Return (ibid); however, when the said Income Tax Return was accepted by the Income Tax Authorities without any objection, on this
13
CP No.D-4233 of 2024 ground he could not have been prosecuted by the Army Authorities; secondly, had he proceeded against by the Income Tax Authority (theoretically) he would have also exhausted the hierarchy of Appeal. The impugned Judgment of Lahore High Court was m aintained, and since the Respondent attained superannuation, it was held that “he shall be deemed to have honorably retired from the Pakistan Army as a Lieutenant Colonel, with all consequence benefits, including pension etc.”.
In Abdul Basit Case (supra), the Respondent was a technician (Radio Fitter) in Pakistan Air Force, who was removed from Service under Section 20(1) of the above Act Read with Rule 31 -A [both these provisions are challenged by the present Petitioner in this Petition, with a prayer that same be declared as ultra vires the Act as well as Constitution of Pakistan because no Appeal is provided], that the said respondent (of the reported case) was acquitted from the Criminal Case but he was neither reinstated nor discharged in terms of C ircular dated 13.12.1992 (issued by PAF Authorities). The Hon‟ble Supreme Court has taken into account the Circular dated 13.12.1992, by converting the dismissal of Respondent to discharge from service, while awarding the applicable dues. It is held that the PAF could not have removed the Respondent from Service if he was acquitted from the Court of competent jurisdiction and his case shall within Paragraph-5 of the above Circular Read with Section 20, Note (1)(b).
In a somewhat identical situation [like the present Constitution Petition], when Section 20 was invoked to dismiss the petitioner, the learned Division Bench of the Hon‟ble Peshawar High Court in Umar Islam Case, [2021 PLS (C.S) 92 ], observed that since no appeal forum is provided for a person d ismissed under Section 20 [ ibid], thus, where the action is challenged on the basis of mala fide and coram non judice , the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.