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Petitioner: ABDUL MONEM (Ex. Chief Technician) VS Respondent: VICE CHIEF OF AIR STAFF [Pakistan Air Force]Honorable Justice Muhammad Faisal Kamal AlamUmar Farooq and Sumaera Noreen,Ms. Shazia Hanjra
P L D 2026 Sindh 214 Before Muhammad Faisal Kamal Alam and Jawad Akbar Sarwana, JJ ABDUL MONEM (Ex. Chief Technician) ---Petitioner Versus VICE CHIEF OF AIR STAFF [Pakistan Air Force] and 4 others ---Respondents C.P. No. D-4233 of 2024, decided on 22nd October, 2025. (a) Pakistan Airforce Act (VI of 1953)--- ----Ss.20(1), 52, 65, 73, 81, 82 & 120---Pakistan Airforce Act Rules, 1957, R.31-A---Constitution of Pakistan, Arts.10-A & 199---Constitutional petition---Pakistan Air Force personnel---Dismissal from service, challenge to---Misappropriation of service medicines, allegation of---Show-cause notice issued after prolonged delay---Not conducting trial within prescribed limitation period (three years)---Effect---Punishment on conviction by court-martial , procedure of---Court-martial not convened---Consequences---Whether dismissal from service was fair in circumstances---Fair trial and due process, violation of---Facts: Petitioner worked as ex-chief technician at Pakistan Air Force who filed the present constitutional petition challenging his dismissal from service order, purportedly passed under S.20(1) of the Pakistan Air Force Act, 1953 read with R.31-A of the Pakistan Air Force Act Rules, 1957---Record reflected that a board of inquiry regarding alleged embezzlement/misappropriation of service medicines was initiated and a show-cause notice was issued, and thereafter the impugned dismissal followed, while no court-martial proceedings were shown to have been conducted---Issue: Pivotal issue requiring determination before the High Court was as to whether, despite Art.199(3), the petition was maintainable on the pleaded jurisdictional/due-process grounds, and whether dismissal under S.20(1) read with R.31-A, after initiating inquiry machinery and without completing the prescribed statutory procedure (including court-martial where required), was lawful and consistent with due process/fair trial, and further, whether S.20(1) and R.31-A were ultra vires the Act/repugnant to the Constitution? ---Held: Board of Inquiry [BOI] in respect of the alleged misappropriation done by the petitioner in service medicines, was initiated on 22.06.2020 and the petitioner was dismissed from service vide the impugned Order on 14th June 2024, that was, after four years---On 21.09.2021, the Additional Board of Inquiry (ABOI) was initiated and show cause notice was issued after four years from the date of initiation of the Board of Inquiry that was, 20.06.2020 and after two and a half years from the issuance of ABOI)---Upon charges against the petitioner the punishment was to be awarded after court martial, which admittedly was not done---Once the respondents had elected to prosecute the petitioner by initiating a BOI, then halfway through, and that too after nearly four years, it could not abruptly dismiss the petitioner without first completing the prescribed procedure---Respondents had misused and had wrongly exercised the authority under S.20(1) of the Pakistan Airforce Act, 1953 read with R.31-A of the Pakistan Airforce Act Rules, 1957 because due process as required under the Act was flagrantly violated---If the petitioner s case was dealt with in accordance with the Act, Rules and the prescribed procedure, then the appellate or other curative forum would have been availed, but abruptly his service was terminated---No inherent illegality in the above provisions under challenge was found---Merely because a provision of law was exercised in a colourable manner, did not justify that the same be declared as illegal or struck down---Section 20 of the Act and R.31-A of the Rules were neither ultra vires the said Act nor violative of any of the provisions of the Constitution---To the extent of challenge to the vires of the Act and the Rules the present petition was dismissed---The respondents had violated their laid down statutory procedure, therefore, the impugned dismissal order was set-aside---Since petitioner had retired from service, thus, he was not reinstated, but, he was to be deemed to have been discharged from respondent PAF, with the entitlement to receive service dues, benefits applicable to his cadre and length of service---Present constitutional petition was partly allowed, in circumstances. 2014 SCMR 1530 rel. Gulzar Ahmed's case PLD 2019 Sindh 697; Umar Islam's case 2021 PLC (C.S.) 92 and Sarfaraz Khan's case PLD 2020 Isl. 428 ref. (b) Constitution of Pakistan--- ----Art.199---Judicial review---Foreign national / foreign accused in custody of Pakistani authorities on charges of espionage and terrorism---Constitutional petition---Maintainability---Locus standi---Court-martial proceedings---Field General Court Martial---Death sentence---Statutory/departmental appeal rejected by Appellate Court---Constitutional jurisdiction of the High Court, invocation of---Scope---The judicial review jurisdiction of the High Court under Art.199 of the Constitution is recognized internationally---A foreign accused who was in custody of Pakistani authorities on the charges of espionage and terrorism, for his release of whom, International Court of Justice was approached, could invoke the jurisdiction of High Court under Art.199, against death sentence handed down against him by the Field General Court martial, appeal against which was rejected by the appellate court. Kulbhushan Jadav ICJ Reports 2019 P-418 ref. (c) Constitution of Pakistan--- ----Art.199---Constitutional petition---Maintainability---Dismissal from service, challenge to---Territorial jurisdiction---Determination---The alleged complaint about the embezzlement in service medicines was relating to PAF Hospital [at Karachi]; the Board of Inquiry was initiated by the correspondence---Base Routine Orders issued from [Karachi]---Since the crucial set of facts had previously occurred [at Karachi], therefore, the High Court [at Karachi] had territorial jurisdiction to scrutinize the controversy. (d) Constitution of Pakistan--- ----Arts.10-A, 37(d) & 199---Court martial proceedings---Death sentence---Violation of due process and fair trial---Fundamental rights of the accused, protection of---Principles of Policy---Scope---The violation of due process of law is a violation of the fundamental rights as protected under Art.10-A of the Constitution---When the legal process is unnecessarily delayed, inaccessible, or obstructed by undue complexities, it becomes a barrier to justice itself---Access to justice is a human and fundamental right of a person and citizen---The concept of justice being sine qua non of a civil order in the society has been highlighted in the words Society cannot exist without justice and justice cannot prosper without independent judges ---Article 37[d] of the Constitution enjoins that State shall ensure inexpensive and expeditious justice---Although the Principles set out in Chapter 2-Principles of Policy are not enforceable through Courts, but at the same time they have been termed as the conscience of the Constitution---Therefore, the Governments [Provincial and Federal] and the State institutions must ensure continuous improvement in the justice delivery system---Negligence or lacking towards this constitutional obligation would have disastrous and long-lasting repercussions, because no society can flourish without an independent justice delivery system in place---Principles of Policy is the covenant between the State, Organs of the State, its functionaries and citizens of this country, and thus, state policies must be structured on this constitutional covenant. SHCBA's case PLD 2009 SC 879; Razia Begum's case PLD 2021 SC 812 and Asad's case PLD 2021 SC 770 rel. Sarwar's case PLD 18 Sindh 360 ref. (e) Constitution of Pakistan--- ----Arts.8 & 199---Legislation in derogation of the Fundamental Rights of the citizens, vires of---Any legislation by the Parliament or Provincial Assembly, either in violation of the prescribed legislative powers in the Constitution, contrary to the Islamic laws and Fundamental Rights, are declared as ultra vires the Constitution and illegal---The very conception of a fundamental right being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but also a fraud on the citizens for the makers of the Constitution to say the right is fundamental but that it may be taken away by the law. SHCBA's case PLD 2009 SC 879; Azhar's case PLD 2012 SC 774; Jibendra's case PLD 1957 SC 9 and SBP's case PLD 2025 SC 440 rel. (f) Law, vires of--- ----Merely because a provision of law is exercised in a colourable manner, does not justify that the same be declared as illegal or struck down. 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's Case 2) PLD 2007 Supreme Court 498 [Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another]-Raja's Case 3) 2014 SCMR 1530 [Federal Government Ministry of Defence, Rawalpindi v. Lt. Col. Munir Ahmed Gill]-Gill's Case 4) 2012 SCMR 1229 [Federation of Pakistan through Secretary Defence and others v. Abdul Basit]-Abdul Basit's Case 5) PLD 2020 Supreme Court 1 [Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others]-Jurists's Case 6) PLD 2017 Supreme Court 173 [Khushdil Khan Malik v. Secretary, Ministry of Defence Rawalpindi Cantt and others]-Malik's Case 7) 1999 SCMR 2744 [Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others]-Tariq Pirzada's Case 8) Judgment of Supreme Court of Pakistan in Civil Appeals Nos. 106 to 109 and 141 of 2010 [Ex-Chief Warrant officer Ali Gohar and others v. Federation of Pakistan] Case Law relied upon by Respondents' Counsel. 1) 1994 SCMR 2286 [Muhammad Mushtaq v. Federation of Pakistan]-Mushtaq's case 2) 2018 PLC (C.S) Note 85 [Muhammad Asif v. Federation of Pakistan through Secretary and 3 others] 3) 2005 PLC (C.S) 64 [Havaldar Mian Ramzan v. Federal Government, Ministry of Defence, through Chief of the Army Staff, General Headquarters, Rawalpindi] 4) 1979 SCMR 555 [Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others]-Sabir Din's case 5) 2024 SCMR 1258 [Abdullah Jumani and others v. Province of Sindh and others] Other Precedents 1. I.C.J. Reports 2019, Page-418 [India v. Pakistan]-Kulbhushan Jadav Case 2. PLD 2019 Sindh 697 [Gulzar Ahmed v. Province of Sindh and others]-Gulzar Ahmed's Case 3. 2013 SCMR 1880 [Hamid Mir v. Federation of Pakistan]-Hamid Mir's Case 4. PLD 2009 SC 879 [Sindh High Court Bar Association v. Federation of Pakistan]- SHCBA's Case 5. PLD 2021 SC 770 [Asad Ali Khan and others v. Province of Punjab and others]-Asad's Case 6. PLD 2021 SC 812 [Ghulam Qasim and others v. Mst. Razia Begum and others]-Razia Begum's Case. 7. 2021 PLC (C.S.) 92 (PHC) [Umar Islam v. Federation of Pakistan through Secretary Defence]-Umar Islam's Case 8. PLD 2020 Islamabad 428 [Sarfaraz Khan v. Chief of Air Staff (Pakistan Air Force), Islamabad]-Sarfraz's Case 9. PLD 2012 Supreme Court 774 [Muhammad Azhar Siddiqui v. Federation of Pakistan]-Azhar's Case 10. PLD 2025 Supreme Court 440 [Senior Joint Director Foreign Exchange Operations Division SBP v. Federation of Pakistan]-SBP's Case 11. PLD 1957 Supreme Court 9 [Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan, Secretary Finance and Revenue]-Jibendra's Case 12. PLD 2018 Sindh 360 [Mohammad Sarwar v. Government of Sindh (Karachi High Court)-Sarwar's 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 Umar Farooq and Sumaera Noreen for Petitioner. Ms. Shazia Hanjra, D.A.G. along with Adnan Hanif, Law Officer of PAF for Respondents Nos. 1 to 5. Dates of hearing: 28th April and 21st May, 2025. JUDGMENT 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 No. 1, by declaring the administrative action is illegal, unconstitutional, mala fide, 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 final 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 Sections 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 per Section 20(1) PAF Act 1953 read with rule 31-A of the PAF Act 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 Order [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 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 attached 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 being 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] was 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 ordered 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 before the Summary Recording Officer on 28.02.2023 in response to all the Charges. Purportedly, another illegality was committed, when, after the lapse of 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, 74, 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 177, 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 departmental 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 20], and thus, the Impugned Order is unauthorizedly issued. Referred to Note (c) of Subsection [1] and (a) of Subsection [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). Contends 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 Members, who was / were biased. Due to certain 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 lacks 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 constitutional 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 and 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 evidence is recorded. Thus, no illegality exists in the entire Proceeding before the Respondent. 7. In Paragraph-8 [Written Arguments], it is averred, 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 considerations, 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 arguments, 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 the Judgment in the case of…
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