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Official Citation: 2024 PLD 235
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2022
Decision Date: 2022-12-31
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2022-12-31, officially reported as 2024 PLD 235. In this matter between the 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.
Case cited as PLD 2024 Supreme Court 235
Court Name: Supreme Court of Pakistan Judge(s):Munib Akhtar, Sayyed Muhammad Mazahar Ali Akbar Naqvi, Umar Ata
JUDGMENT
Reported As: 2023 SCP 280, PLD 2024 Supreme Court 235, PLJ 2024 SC 1 Result: Appeal and Petition Dismissed Judgment JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated judgment, we intend to decide Civil Appeal No. 1191/2016 & Constitution Petition No. 18/2000, as common questions of law and facts are involved in both these matters. 2. Precisely the facts of the matter pertaining to Civil Appeal No. 1191/2016 are that appellant Muhammad Azad Minhas joined Pakistan Military Academy as cadet and passed out as commissioned officer on 14.11.1971. Over the time, he became Colonel on 06.07.1995 and was posted as Colonel General Staff to Corps Mangla Cantt HQ 1. Whereas, the petitioner Inayatullah Khan in Constitution Petition No. 18/2000 passed out from PMA Kakul in December, 1971. He also became Colonel with the efflux of time and was serving as Colonel Staff 17 Infantry Division, Kharian Cantt. On 26.09.1995 both of them were taken into custody along with two others by the intelligence agencies and as such they were thoroughly investigated. During course of interrogation, both of them were sent to face the following charges before the court under the Pakistan Army Act, 1952:- First Charge:-Under Section 59 of PAA 1952 (Against all accused)Committing a civil offence, that it is to say, conspiring to wage war against Pakistan, an offence Punishable under Section 121- A of the Pakistan Penal Code, in that they together at Rawalpindi, Mangla and elsewhere, between the period from May 1995 to September 1995, alongwith PA-12680 Colonel Liaqat Ali Raja and others, conspired to wage war against
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Pakistan so as to overthrow the Federal Government of Pakistan by means of criminal force.
Second Charge:-Under Section 55 of PAA 1952 (Alternative to the first charge against accused No. 1 only i.e. Maj. General Zaheer ul Islam)Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned.
Third Charge:-Under Section 55 of the PAA 1952 (Alternative to the first charge against accused No. 3 only i.e. the appellant Colonel Muhammad Azad Minhas)Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned. Fourth Charge:-Under Section 55 of the PAA 1952 (Alternative to the first charge against accused No. 4 only i.e petitioner Inayatullah Khan)Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned.
Fifth Charge:-
Under Section 31(d) of the PAA 1952 (Against accused No. 2 only i.e. co-accused Brigadier Mustansar Billah) Attempting to seduce any person in the military forces of Pakistan from his allegiance to the Government of Pakistan, in that he, at Quetta, during May 1995, attempted to seducePA- 12621 Colonel Muhammad Iqbal of Electronic Warfare Directorate, GHQ, from his allegiance to the Government of Pakistan by asking him to prepare a plan to neutralize the existing telephone communication system at Rawalpindi so as to enlist his (Colonel Muhammad Iqbal's) support for furthering the design of the conspiracy mentioned in the first charge.
3. The appellant/petitioner filed Constitution Petition Nos. 8 & 9/1996 before this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, challenging the validity of their arrest, detention and trial by the Field General Court Martial but the same stood dismissed vide judgment dated 14.05.1996. Thereafter, the trial proceeded and at the conclusion of the trial, they were found guilty to the extent of third and fourth charge for having knowledge of the conspiracy and failing to report the same to the higher authorities, which conduct of them was prejudicial to good order and military discipline. Vide order dated 30.09.1996 they were ordered to be dismissed from service and to further suffer rigorous imprisonment for two years & four years respectively. Their conviction was also confirmed by the Chief of Army Staff vide order dated 28.10.1996. Both of them filed appeals before the Court of Appeal but the same were also dismissed vide order dated 06.11.1997. Pursuant to the conviction, their membership in the Army Officers Housing Scheme for allotment of a house at the time of retirement along with allotment of plots in Army Welfare Housing Scheme were ordered to be cancelled. Thereafter, the petitioner Inayatullah Khan filed Constitution Petition No. 18/2000 before this Court whereas the appellant Muhammad Azad Minhas filed Writ Petition No. 1146 of 2010 before the Lahore High Court, Lahore, which was dismissed vide
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order dated 20.05.2015. Being aggrieved by the judgment of the High Court, he filed Civil Petition No. 1234/2015 before this Court wherein leave was granted, consequently, Civil Appeal No. 1191/2016 has arisen. 4. The appellant and the petitioner before us argued in person. During the course of arguments, the main contentions raised by them are precisely that when they were accused of principal offence i.e. First Charge, they could not have simultaneously been made accused of the alternate charge/offence. Contends that it is mandatory for the prosecution to prove the main offence before starting the trial on the alternative charge. Contends that the charge framed under the Pakistan Army Act is without jurisdiction and illegal as the same exclusively relates to misconduct or omission committed on the basis of assigned military duty. Contends that the impugned order of the Field General Court Martial was based upon mala fides, being coram non judice, as such, was without jurisdiction, therefore, the same is not sustainable in the eyes of law. Contends that their plots in Army Welfare Housing Scheme and memberships in Army Housing Scheme were cancelled illegally, without any backing of law, Rules or Regulations, which could authorize confiscation of their properties, therefore, the same is violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. Lastly contends that the constitutional bar of limitation is not applicable to the proceedings conducted under Article 199 or Article 184 of the Constitution, as such, any delay in filing the Constitutional petitions either before this Court or before the High Court is of no avail to the respondents. 5. On the other hand, learned Additional Attorney General argued that any person charged during Court Martial with any offence punishable under Section 59 of the Army Act may be found guilty of any other offence to which he might have been found guilty. Contends that the entire proceedings of the Field General Court Martial were well within the recognized principles of criminal justice and the same are unexceptionable. Contends that the Pakistan Army Act has complete mechanism and jurisdiction to charge and proceed against any army personnel found involved in commission of any illegal act, as such, any act committed by them can be tried under the relevant law i.e. Pakistan Army Act, 1952. Contends that the allocation of plots and membership in the housing society are the privileges, which are only assigned for army officers but after dismissal from service the appellant/petitioner have lost right to retain such a privilege. Lastly contends that as a general principle Constitutional bar of limitation is not strictly applicable to the proceedings under Article 199 and 184 of the Constitution, however, it is not absolute as the same should be initiated promptly and within a reasonable time to avoid the question of laches. 6. We have heard both appellant/petitioner and the learned Law Officer at considerable length and have perused the case record. The questions which crop up for our consideration are as follows:- i) Whether the appellant/petitioner were subject to Pakistan Army Act and the proceedings carried out by the forum constituted under Pakistan Army Act, 1952, were based upon mala fides, coram non judice, hence, passed without jurisdiction in violation of fundamental rights? ii) Whether an accused can be convicted under alternative charge/offence in case the main offence is not proved? iii) Whether the Constitution Petition No. 18/2000 filed before this Court is maintainable? iv) Whether the inordinate delay of about 13 years in filing the Constitutional Petition before the High Court can be condoned? v) Whether after dismissal from service, the appellant & petitioner are entitled for perks & privileges, which are meant for Army Personnels? 7. In order to adjudicate the question (i) supra, it seems essential to evaluate the intent of the Legislature while legislating the aforesaid Act i.e. Pakistan Army Act, 1952, wherein it is categorically stated "whereas it is expedient to consolidate and amend the law relating to Pakistan Army".
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Section 2 of the said Act provides that following persons shall be subject to this Act. Relevant portion of the said provision reads as under:- "2. Persons subject to the Act.- (1) The following persons shall be subject to this Act, namely:- (a) officers, junior commissioned officers and warrant officers of the Pakistan Army;" 8. The plain reading of the afore-referred provision of law depicts that the persons subject to Pakistan Army Act, 1952, either in any of the capacity as an officer, junior commissioned officer or warrant officer during service at the relevant point of time are subject to Pakistan Army Act, 1952, and whenever an act violating any provision of said enactment is committed by them, the same would be exclusively dealt with by the provisions contained in the aforesaid Pakistan Army Act, 1952. There is no denial to this fact that both the appellant/petitioner were serving officers of Pakistan Army at the time when in pursuance of confidential/intelligence information regarding violation of the provisions of said enactment, they were taken into custody. During course of interrogation, the accusation against them was found to be correct and as such they were rightly dealt with under the law on the subject and as such their argument that the action taken by the authorities in pursuance of the material collected and the proceedings before the Court constituted under Pakistan Army Act, 1952, may be declared to be based upon mala fides has no legal justification. The enactment referred above does not disclose any exception to the general principle that any serving officer of military if found violating the law relating to its discipline would be dealt otherwise except under the Pakistan Army Act, 1952. Hence, the argument of the appellant/petitioner that their trial before the Field General Court Martial was an abuse of process has no sanctity and the same is vehemently discarded. All the grievances of the appellant/petitioner regarding their apprehension, custody and prosecution before the Field General Court Martial are the steps, which can be taken by the order of the Commanding Officer subject to receipt of tangible information regarding the violation of any provision of Pakistan Army Act, 1952. Even under Section 549 of Code of Criminal Procedure, 1898, on receipt of an information from any source, the said provision can be pressed into to initiate proceedings to bring any subject to Army Act to face the attire of said enactment if there is an information regarding its breach/violation. Under this provision of law, the word "from any source" includes information supplied by armed forces of those who are falling within the jurisdiction of Pakistan Army Act, 1952 but their whereabouts are not traceable to them after their absence or being fugitive from law. In the instant case, both the appellant/petitioner were not falling within this category rather they were directly saddled with accusation falling squarely within the ambit of Pakistan Army Act, 1952, hence, the same was justifiably applicable in the given circumstances. In Ex. Gunner Muhammad Mushtaq Vs. Ministry of Defence (2015 SCMR 1071), this Court held the custody, trial and conviction of the accused army personnel by the Field General Court Martial to be held in accordance with law. The question whether a serving Army Officer is subject to Army Act and is triable by Field General Court Martial also came under discussion in Asim Bashir Vs. Federation of Pakistan (2021 SCMR 1176) wherein this Court candidly held as under:- "Given his status as an Army Officer, his apprehension, custody and prosecution before a Field General Court Martial are the steps taken within the remit of section 549 of the Code of Criminal Procedure, 1898 (the Code) which unambiguously authorizes such a prosecution on the option of Commanding Officer, a choice that is in line with the concurrent jurisdiction of Court Martial and Criminal Courts on the discretion of "Prescribed Officer" as contemplated by sections 94 and 95 of the Act ibid, laying down the procedure in such an eventuality, therefore, the argument that the petitioner was not liable to be treated as subject to the Act in view of the nature and venue of the crime is entirely beside the mark. We are also not impressed by the contention that the petitioner ought not to have been tried in Bahawalpur Cantonment and that proceedings of Field General Court Martial stood vitiated on this score alone."
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(Underlined to lay emphasis) 9. In the case of Said Zaman Khan Vs. Federation of Pakistan (2017 SCMR 1249) this Court has extended the view of this Court in Ex-Gunner Muhammad Mushtaq supra case wherein a civilian found in combat with army personnel was held liable to be tried under the Pakistan Army Act, 1952. One Said Zaman who was a civilian but was engaged in combat with the soldiers of the Pakistan army being a member of religiously motivated terrorist organization was found involved in attacking Armed Forces with deadly weapons causing death of Army personnel. This Court held that accused was involved in the commission of an offence under Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, as incorporated by the Pakistan Army (Amendment) Act, 2015, hence, by operation of law he became subject to the Pakistan Army Act, 1952, and, therefore, became liable to trial by a FGCM. The Court further held that the offence with which the accused was charged was obviously punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" as defined by subsection (3) of Section 8 of the Pakistan Army Act, 1952, and was liable to be tried by the Field General Court Martial in view of the provisions of Section 59 of the said Act. 10. The concept of duty/obligation assigned to a military officer does necessarily relate to duty/responsibility assigned for a particular task, as argued before us if accepted correct it would amount to a narrow interpretation regarding responsibilities of members of disciplined force. A military officer of either of the rank is under bounden duty to execute momentary obligations assigned or not in order to uphold dignity, reputation, discipline and above all maintain order of the institution in letter and spirit. Any act or omission, which hampers integrity/discipline of the institution would definitely be accountable considering it an act triable under the Army Act. During the course of arguments, we have noticed that the appellant/petitioner had already voiced their grievances while filing Constitutional Petition Nos. 8 & 9/1996 before this Court while calling in question the validity of their arrest, detention and trial by the Field General Court Martial convened under the provisions of Pakistan Army Act, 1952. However, this Court after discussing all aspects in detail and the relevant provisions of Law and the Constitution held that the appellant/petitioner along with other co-accused were subject to Pakistan Army Act and the trial held against the military officers before the Field General Court Martial was in accordance with law. All the objections raised before us are in-fact dealt with by this Court in a concrete manner while considering each and every aspect of the case with reference to "fair trial", "due process" eliminating any scope of exploitation and dignity of the man while attending all requirements of justiciability and fairness to broaden the scope of safe administration of criminal justice. This judgment was reported as Shahida Zahir Abbasi Vs. President of Pakistan (PLD 1996 SC 632). It would be advantageous to reproduce the relevant portion of the judgment, which reads as under:- 'From the above quoted passage, it is quite clear that the rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person. With the assistance of learned Attorney-General and the learned counsel for the petitioners we have gone through various provisions of the Act governing the procedure of trial before a Military Court and after going through the same, I am of the view that the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case, I may also add here, that unlike the previous position when no appeal was provided against the conviction and sentence awarded by a Military Court, the Act now provides an appeal against the conviction and sentence awarded by a Military Court before an appellate forum." 11. In the second round of litigation, both the appellant/petitioner exhausted all legal remedies available to them under the Pakistan Army Act up to the level of Chief of Army Staff and the Court of Appeals. It was afterwards, that they again invoked the Constitutional jurisdiction of this Court as
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also of the learned High Court by filing Constitutional petitions calling in question all those preliminary questions already dealt by this Court. As far as maintainability of these petitions is concerned, though this Court in a number of cases has already held that Article 199 (3) of the Constitution of Islamic Republic of Pakistan clearly ousted the jurisdiction of High Courts from making an order in relation to affairs of matter of a person who is member of the Armed Forces of Pakistan, or who is for the time being covered by any special law relating to any of such forces, or in respect of any action taken in relation to such person as a member of the Armed Forces, or a person subject to such law and under this clause of Article 199(3) the jurisdiction of the High Court if assailed is barred with reference to the conviction or sentences recorded by the Field General Court Martial. However, a view contrary to earlier stance has now developed, which is recent in all fairness that the superior Courts have jurisdiction to interfere in the orders of the authorities relating to the Armed Forces if the same are found to be either result of mala fide or the same are coram non judice. In Said Zaman supra, this Court has held that any proceedings, convictions and sentences awarded by the Field General Court Martial (FGCM) can be called into question before the Constitutional Courts on the ground of mala fides, if tainted with bias or taken for a collateral purpose to cause damage to a person without legal justification while ignoring all settled principles of decency and fairness. Specific allegations of the collateral purpose or an ulterior motive must be made to hilt and proved to the satisfaction of the Court. However, this new concept of interference is still holding very bleak ground to interfere in the presence of express provisions of Constitution. However, in the instant case we have not been able to find out any element of mala fides on the part of the prosecution or authority to entertain these petitions in the given circumstances. Therefore, in absence of any element of mala fides on the part of competent fora, the conviction and sentences inflicted to the appellant/petitioner by the Field General Court Martial cannot be stamped to be result of coram non judice. The argument that the order of Field General Court Martial was violative of fundamental rights has no legal sanctity because firstly there is no material available to substantiate such aspect. Further both of them joined Pakistan Army as of their own, with free will and after serving as commissioned officers for considerable time, they were reported for an act as such being subject to Pakistan Army Act, 1952, proceedings were initiated against them in lieu of violation of law, hence it cannot be termed as infringement of any fundamental right, which actually was not specifically pointed out during the course of proceedings. Otherwise these aspects qua proceedings before us have already been dealt in the afore-referred salutary judgment of this Court. Otherwise, the "code of procedure" of the Field General Court Martial was even brought under the judicial scrutiny of this Court in another famous case titled F.B. Ali Vs. The State (PLD 1975 SC 506) and the same was found to be in conformity with the generally accepted and recognized principles of administration of criminal justice. In Shahida Zaheer Abbasi case mentioned supra, this Court after thoroughly analyzing the provisions of Pakistan Army Act, Pakistan Army Rules and the Constitution of Islamic Republic of Pakistan has candidly reiterated while holding that the "Army Act, 1952 is one of those pieces of legislation which is protected under Article 8(3)(a) of the Constitution from being challenged on the grounds of its consistency with the provisions contained in Chapter I of Part II of the Constitution of Islamic Republic of Pakistan. Rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person. Procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case." These judgments were upheld by this Court in a subsequent judgment reported as District Bar Association Vs. Federation of Pakistan (PLD 2015 SC 401) and it was held that the provisions of Pakistan Army Act cannot be invalidated for offending against fundamental rights including Article 25 of the Constitution. Similarly Article 10-A also cannot be pressed into service to challenge the provisions of Pakistan Army Act, 1952. All these questions were determined by this Court in the
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earlier round of litigation, which has been pointed out in the preceding paragraphs. Furthermore, the case of the appellant/petitioner has become more sensitive by way of conviction recorded against them and further it was served out, which makes them previous convicts. 12. Now the "pivotal question" raised during arguments is as to whether an accused person under the Pakistan Army Act can be convicted for an alternative charge/offence in case the principal charge/offence is not proved. The concept of alternative charge is not unknown in the sphere of Pakistan Army Act. Sections 111(5) of the Pakistan Army Act and Rules 21(4) and 51(7) & (8) speak about the framing and punishment of an accused under alternative charge/offence. The bare perusal of the charge sheet reveals that both the appellant/petitioner were not only charge sheeted for the main offence but also for the alternative charges/offences and it was well within the knowledge of both of them. It is now well settled without second thought that if an accused is charged with one offence but from the evidence it appears to have committed a different offence for which he might have been charged under the said provisions of law, he may be convicted for the offence he is found to have committed, although he was not charged with the same. However, in the present case, the appellant/petitioner were not only charged for the main offence but for the alternative charges as well, which is spelled out from bare reading of charge sheet. All courts after evaluating the evidence led by the prosecution found that the main offence could not be proved against them but as there was sufficient evidence to sustain their conviction under the alternative charge, hence, they were convicted accordingly. Needless to mention that when appellant/petitioner had filed Constitutional petitions before this Court…
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