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Petitioner: FEDERATION OF PAKISTAN and 2 others VS Respondent: KHURSHID AHMED and another
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Abdur Rehman Khan Title: FEDERATION OF PAKISTAN and 2 others vs KHURSHID AHMED and another Case No.:Civil Appeal No.114 and Civil Petition for Leave to Appeal No. 1071 of 1998 C.A.
JUDGMENT
Reported As: 1999 SCMR 664 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of the abovementioned two cases by a common judgment as the points of law arising in these cases are identical. However, it is necessary to state briefly. The facts of each case, before we attend to the legal questions raised therein:-- Civil Appeal No,114 of 1998. ' The respondent in this appeal was working as Assistant in the Office of Judge Advocate-General (JAG) General Headquarters (GHQ), Rawalpindi. He was charged for fraudulently using the forged signatures of Chief of Staff to the President of Pakistan, in order to reopen a murder case for retrial in 1986. While this charge was being investigated against him, he was found involved in another case in which he allegedly photo copied the signatures of Vice Chief of the Army Staff in order to secure the posting of his brother. In respect of the first charge, he was tried before Special Judge (Central), Rawalpindi but was acquitted vide judgment dated 7-6-1989. ' For the second charge, he was tried by the Field General Court Martial (FGCM) under section 2(1) (c) of the Pakistan Army Act and having been found guilty was convicted and sentenced to one year's R.I. With penalty of dismissal from service with effect from 14-7-1987. The sentence was, however, revised and enhanced to 5 years' R.I. With dismissal from service from 18-4-1987 which was confirmed by J.A.G. On 19-4-1987. While he was undergoing sentence of imprisonment, his wife made mercy petition to Ministry of Defence which was accepted by the Chief of the Army Staff on 17-6-1989 and his remaining sentence of imprisonment was remitted. After his release from the prison, the respondent reported for duty but the authorities did not allow him to join the duty. He,
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therefore, challenged the validity of his trial by the F.G.C.M. And confirmation of his enhanced sentence by J.A.G. In Writ Petition No,511 of 1989 which was accepted by a learned Single Judge of the Lahore High Court on 3-11-1990 and his trial and conviction by F.G.C.M. Was declared without lawful authority. However, it was left open to the authorities, if they so choose, to prosecute him before a competent Court. The appellants challenged the decision of the learned Single Judge before the I.-C.A. Bench of the High Court in I.-C.A. No,16 of 1990 which was dismissed as withdrawn on 8-10-1997 on the statement of the learned counsel for the appellants that the I.C.A. Was not maintainable in view of the bar contained in section 3 of the Law Reforms Ordinance, 1972 and that the appellants intended to pursue the remedy against the judgment of the learned Single Judge before this Court. Leave was granted in the above appeal by this Court as follows:-- "The petition is barred by 6 years and 285 days. Condonation of delay is sought on the ground that during this period the I.-C.A. Filed by the petitioners against the order of learned Single Judge remained pending in the High Court. The question of limitation will be considered at the time of hearing of appeal. ' Leave is granted in the above petition to consider:-- (1) Whether the respondent, a civilian employee of Judge Advocate-General's Office of the Pakistan Army, was rightly treated subject to Army Act 1952, on account of Notification No,3 of 1975, dated 3rd of January, 1975 which declared, the whole of the Army on active service? And (2) Whether the respondent was competently tried and convicted by the Field General Court Martial? ' Appeal to be made ready on the present record with liberty to the parties to file any further document which they wish to file. Appeal to be heard in the last week of May, 1998." C.P.L.A. 1071 of 1998 ' The respondent in this petition was appointed as Lower Division Clerk in the General Headquarters (GHQ) on 4-7-1979. He was later promoted as Upper Division Clerk with effect from 24-6-1985. He was charge-sheeted for 3 charges of misconduct in discharge of his official duties. He was accordingly tried by a Field General Court Martial (FGCM) convened under section 84 (6) of the Pakistan Army Act (hereinafter to be referred as 'the Act') by order dated 11-3-1989. He was exonerated of the first charge but was found guilty of the remaining two charges. He was, accordingly, convicted and sentenced to 2 years R.I. And penalty of dismissal from service. The respondent challenged his conviction and sentence awarded by F.G.C.M. In Writ Petition No,174 of 1994 which was accepted by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, by Judgment dated 25-6-1998 against which the petitioners are seeking leave to appeal. 2. Two different learned single Benches of the Lahore High Court dealt with the above cases and reached the conclusions that the respondents in the above cases being the civilian employees, were not subject to Army Act and as such their trial and conviction by F.G.C.M. Was without jurisdiction. 3. In Civil Appeal No,114 of 1998 the learned Single Judge gave the following reasons for holding the trial of respondent as without lawful authority and of no legal effect;-- "13. In the instant case the stand taken by the respondents is that the petitioner at the relevant time was on active service by virtue of Notification 3/75, dated 3-1-1975, issued under section 7 of the Act and he was in the service of the J.A.G. Branch of the Pakistan Army and for that reason he was subject to the Act. There is no dispute that at the relevant time he was in the service of the Pakistan Army being an Assistant in the J.A.G. Branch but the satisfaction of this condition alone was not enough to subject him to the Act. In addition thereto, he should have been either on active service, or in camp, or on the march, or at any frontier post. It is an admitted position that at that time he was neither in camp, nor on the march nor at any frontier post. Now the only point for consideration is: whether he was on active service? For bringing or putting a person on active service by a
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notification to be issued under section 7 of the Act, it is a condition precedent that he must already be subject to this Act (Pakistan Army Act, 1952) and if he is not already subject to this Act, then he cannot be subjected to this Act merely by issuing a notification under section 7. The words on active service figuring in section 2(1)(c) refer to the active service provided for in section 7 or in section 8(1) of the Act, while section 7 (with which we are now concerned) in turn refers back to section 2(1)(c) by using the words any person or class of persons subject to this Act' and in fact neither of them brings a civilian employee, as the petitioner was subject to the Pakistan Army Act, 1952. Therefore notification 3/75, dated 3-1-1975 issued under section 7 (ibid) by itself did not subject the civilian employees, including the petitioner, subject to the Pakistan Army Act, 1952. It appears that the Legislature in order to meet emergent situation wanted to subject civilian employees under the Pakistan Army Act for the purpose of better discipline but due to defective mechanism employed by it, it could not achieve the object. Therefore, in my opinion, the petitioner at the relevant time was neither on active service nor subject to the Pakistan Army Act, 1952, and he could not be tried, convicted and sentenced by the Field General Court Martial nor he could be dismissed from service by it. The petitioner, as it appears from the material brought on the record, never submitted to its jurisdiction and went on protesting from start to finish. 14. In view of the above, the writ petition is accepted and the impugned order is declared against law, without lawful authority and with no legal effect." 3. In Civil Petition for Leave to Appeal No,1071 of 1998, the learned Single Judge, following the judgment in Writ Petition No,511 of 1989, accepted the writ petition of respondent and declared his trial by F.G.C.M. Without lawful authority, as follows:-- "6. I have heard the learned counsel for the parties and have also gone through the material which was already on record or produced by the parties during the course of hearing of the petition. Section 2 of the Act enumerates the categories of persons who are subject to the Act. In clauses (a) and (b) of the said provision, the officers junior commissioned officers, warrant officers of the Pakistan Army and the person enrolled under the Act are subject to the Act. Clause (c) thereof pressed into service by the respondents, reads as under:-- '(c) persons not otherwise subject to this Act, who on active service, in camp on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army'. Clause (d) covers those persons who are not otherwise subject to the Act but are accused of seducing or attempting to seduce any person subject to the Act from his duty or allegiance to Government or having committed an offence under the Official Secrets Act, 1932 in relation to any force or works of defence etc. Of the Military, Naval or Air Force. Section 4 of the Act provides that every person covered by clause (c) of subsection (1) of section 2 of the Act shall, for the purposes of the Act be deemed to be under the command of the commanding officer of the corps, unit or detachment. Section 7 of the Act contains a non obstante clause whereby the Federal Government may, by notification, direct that any person or class of persons subject to the Act shall, with reference to any areas in which they may be serving or with reference to all or any of the provisions of the Act or of any other law for the time being in force, be deemed to be on active service within the meaning of the Act. Section 8 of the Act, inter alia contains definitions of the 'active service', 'civil offence', 'commanding officer', 'court-martial', 'offence', 'service' and 'warrant officer'. Provisions of sections 9 to 20 regulate the appointment, enrolment, attestation, dismissal, retirement and discharge of person who are subject to the Act. Section 55 provides for sentence by a Court Martial up to five years upon a person subject to the Act who is found guilty of any act, conduct, disorder or neglect to the prejudice of good order and of military discipline. Section 59 is an enabling provision whereby any person subject to the Act committing any civil offence is to be deemed to be guilty of an offence under the Act and also provides for quantum of punishment. Section 60 of
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the Act contains the list of punishments that can be awarded by Court Martial in respect of offences committed by persons subject to the Act. Under section 84 of the Act, the following authorities have the power to convene a Field General Court Martial:- (a) an officer empowered in this behalf by an order of the Federal Government or of the Chief of the Army Staff; (b) on active service, an officer commanding a portion of the Pakistan Army, not below the rank of brigadier, if in the opinion of such officer commanding, such opinion to be recorded in writing and to be conclusive, it is not practicable with due regard to discipline and the exigencies of the service to try the alleged offender by a general court-martial.' 7.Admittedly, the petitioner was not an officer, junior commissioned officer, warrant officer of the Pakistan Army or a person enrolled under the Act. He was holding a civil post in connection with the affairs of the Federation. He was, thus, a civil servant for the purpose of his service discipline. It is hardly possible to treat him to be a person on active service, in camp, on the march, or at any frontier post being a person employed by, or in the service of, or follower of, or accompanying any portion of the Pakistan Army. The clause (c) of section 2 has to be read in ejusdam generis with other provisions of the Act. He cannot be considered to be a camp follower. It is not the intention of the Act to bring in the net all the persons coming into contact with the Pakistan Army in any way so as to become subject to the Act. The question of a person on active service arises only if he is already subject to the Act and not otherwise. The said clause would cover those persons employed by or in the service or the followers of or accompanying any portion of the Pakistan Army who while on active service are in camp, on the march or at any frontier post. But they have to be specified by the Federal Government by a notification. Nothing was brought on record to show that the petitioner was considered to be a camp follower accompanying any portion of the Pakistan Army in any camp, on the march, or at any frontier post. No such notification of the Federal Government was shown to have been issued. The mere fact that the Federal Government had issued a notification dated 3-1-1975 under section 7 of the Act declaring all the persons subject to the Act as on active service would not make the petitioner subject to the Act. 8. I, therefore, hold that the petitioner was not subject to the Army Act in the facts and circumstances of the present case. Similar view was taken in judgement dated 22-6-1990 passed by this Court in E.P.No,511 of 1989 in the case of Khurshid Ahmad v. Government of Pakistan through Ministry of Defence, Rawalpindi and 2 others. 4. In Civil Appeal No,114 of 1988, while granting leave to appeal, the question of limitation was left open. The appeal before this Court is barred by 6 years and 285 days. The appellants have filed an application for condonation of delay in filing the appeal. The following grounds are urged in support of the application for condonation of delay:-- "2. That this delay in filing the above-noted leave petition is neither intentional, nor wilful; nor deliberate. It was due to a bona fide error in understanding and interpreting the provisions of Law Reforms Ordinance, 1972 regarding the pursuit of further remedy against the impugned judgment of the learned High Court passed by a learned Single Judge. The petitioners under the legal advice received decided to file an I.-C.A. In the High Court and with all promptness filed the I.-C.A. Within time through their counsel. The I.-C.A. Then came up for hearing before a learned Division Bench of the High Court on 25-11-1990 alongwith the application for suspending the operation of the impugned judgment passed by the learned Single Judge. The I.-C.A. After hearing was admitted to full hearing the same day and notice was issued to the respondent. After the admission Order the application (C.M. 1652 of 1990) was taken up in which the prayer was for suspension of operation of the impugned Order of the learned Single Judge. The application was also allowed and the operation of the impugned judgment was suspended and the notice was issued to the respondent in this application as well for 16-2-1990. At this stage Mr. Abad-ur-Rehman Lodhi, Advocate, put in
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appearance before the I.-C.A. Bench and accepted notice on behalf of respondent. The learned counsel appearing for respondent did not object to the competency and maintainability of the appeal. On 16-12-1990 neither the respondent himself; nor his counsel in spite ,of having notice appeared before the Court upon which the Honourable I.-C.A. Bench confirmed its previous Order passed on 25-11-1990 which order had in fact been passed in presence of the counsel for the respondent. The reason for absence of the learned counsel on 16-12-1990 perhaps was that he was also sure that the I.-C.A. Was competent and after its admission and issuance of stay order in his presence, the stay order was most likely to be confirmed. 3. That in these circumstances there was no reason for the petitioners to entertain a doubt about the competency of the appeal. Neither the Honourable Court nor the counsel for the respondent had any doubt about the competency of the appeal. 4. That the matter does not end here. The I.-C.A. Remained pending before the High Court for about seven years and came up for hearing before the Honourable Court on as many as 24 times. On none of these hearings the respondent took the objection that the appeal was not competent orally or through writing although the respondent also filed a reply to the I.-C.A. Raising all possible objections available to him under the law; but the objection of competency of appeal was never raised. It was only on 8-10-1997 that the counsel for the petitioners after noticing the bar of section 3 of the Law Reforms Ordinance, 1972, decided not to press the appeal with the further decision to pursue the remedy in this Honourable Court by way of a leave petition against the judgment of the learned Single Judge of the High Court. The prayer made_ in this behalf by the petitioner's counsel was accepted and the appeal was 'disposed of as withdrawn' . 5. That after getting the appeal (I.-C.A. 16 of 1990) disposed of on 8-10-1997 the petitioners immediately took steps for filing the above leave petition and after getting the certified true copy of the judgment of the learned Single Judge of the High Court,on 13-10-1997, the above leave petition before this Honourable Court is being filed today (14-10-1997) i.e, within a day without wasting a single day. 6. That from the above narration of facts it is clear that there did exist reasonable grounds for believing that the appeal (I.-C.A. 16 of 1990) was competent. Therefore, under the circumstances the time spent in I.-C.A. Should not be used a punishment for the petitioners who throughout this long period remained vigilant and have been fighting for the determination of the legal rights in a legal manner and in accordance with law. During all this period nothing came on record and there was no indication from any side suggesting doubt about the competency of the appeal before the High Court. So, under the circumstances the petitioners had no choice, but to pursue their appeal before the High Court which they pursued with full; vigilance and force. This was a position and a circumstance over which the petitioners had no control and the circumstances being beyond control of the petitioners entitles them to grant of concession and this Honourable Court under these circumstances be pleased to use its discretion in favour of the petitioners condoning the delay in filing the leave petition by extension of time for the larger interest of justice. 7. That besides the above in the case there are a number of substantial questions of law of general public importance and interest and this Honourable Court has always treated this as a good ground for condoning delay in such-like cases. On merits the petitioners have a good prima facie case in their favour. The discipline of the Army is to be maintained. The persons like the respondent cannot be kept in the Army. The integrity of the persons serving the Pakistan Army must be above- board. The Army kept and maintained for the defence of the country cannot afford to have persons like the respondent in its rank. ' The interest of Army discipline and its service requirements demand that the delay in filing the petition which was also beyond control of the petitioners as explained earlier in this application, be condoned for the larger interest of justice.
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' It is, therefore, respectfully prayed that on account of the peculiar circumstances of this case and because of the substantial questions of law of general public importance and interest involved in the case, the delay in filing the above leave petition be condoned by extension of time, in the interest of justice." 5. The learned Deputy Attorney-General (D.A.-G.) further contended that section 133-B was added in the Act pursuant to the judgment of Shariat Appellate Bench of this Court in the case of Pakistan v. General Public (PLD 1989 SC 6), on 24-12-1992 through Act XXVII of 1992. Before insertion of section 133-B in the Act, contended learned D.A.G., there was no right of appeal available to a convict in such cases, and therefore, the position whether an I.-C.A. Was competent or not in view of the provision of section 3 of Law Reforms Ordinance, was not very clear. The filing of I.-C.A. Before the High Court against the order of learned Single Judge, argued learned was therefore, under a bona fide mistake that it was competent. ' The learned counsel for the respondent, on the other hand, argued that the provisions of section 3 of Law Reforms Ordinance are so clear that there was no possibility even for a layman to be misled in filing the I.-C.A. The learned counsel further contended that in any case, the appellants could not plead that they were misled or that under a bona fide mistake, they filed the I.-C.A. Before the High Court against the order of learned Single Judge as this point stood finally settled by the decision of this Court in the case of Sajjad Haider v. Field General Court Martial (1988 SCMR 1035) wherein the appellants were a party. 6. The contention of learned counsel for the respondent is not without force. In the case of Sajjad Haider (supra) the question for consideration before this Court was whether an Intra-Court Appeal against the order passed by a learned Judge in proceeding arising from the conviction of a person by the Field General Court Martial under the Act, was competent in view of the provisions of section 3 of the Law Reforms Ordinance. This Court while holding that I.-C.A. In such circumstances, was not maintainable made the following observations:-- "The bar to an Intra-Court Appeal against the decision of a learned Judge in Chamber is contained in section 3, subsection (2) proviso of the Law Reforms Ordinance, 1972; the relevant portion of which is reproduced hereunder:-- '3.-(1)............................................................................................... (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (I) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.' ' In the Pakistan Army Act under which the trial of the petitioner was held the following two provisions, one contained in section 126 and the other in section 131, exist, which are relevant to the discussion:-- '126. Revision of finding and sentence.-- -(1) Any finding or sentence of a Court-martial which requires confirmation may be once revised by order of the confirming officer, and, on such revision, the Court, if so directed by him, may take additional evidence. (2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent. (3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, if a general court- martial, it still consists of five officers or, if a field general or district court-martial, of three officers.
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131. Remedy against finding and sentence of Court-martial.--- (1) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a general, field general or district court-martial may submit a petition before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation to the Federal Government, or the Commander- in-Cheif or to any prescribed officer, provided that such prescribed officer is higher in rank than the one who confirmed such finding or sentence. (2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary court-martial may submit a petition to the Federal Government or the Commander-in- Chief, or any officer empowered to act under section 128." ' There is under the law applicable a Revision provided for in the Pakistan Army Act. Further, there is a remedy for any one considering himself aggrieved by the finding or sentence to submit a petition, at the stage of Revision or even afterwards. Apparently in view of these provisions, the proviso to…
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