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Official Citation: 2024 SHC 487
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.Rev 229/2024 (S.B.) Sindh High Court, Karachi - Pakistan Air Force (Applicant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 487. In this matter between Cr.Rev 229/2024 (S.B.) Sindh High Court, Karachi - Pakistan Air Force (Applicant) 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: Cr.Rev 229/2024 (S.B.) Sindh High Court, Karachi CITATION: 2025 SHC KHI 487 PARTIES: Pakistan Air Force (Applicant) ORDER DATE: 21-MAR-25 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Revision Application No. 25 of 2024 Criminal Revision Application No. 229 of 2024
Assad Naeem Applicant : through Mr. Kashif Hanif, in Crl. Rev. Appl. No. 25 of 2024 Advocate. & Respondent No. 1, in Crl. Rev. Appl. No. 229 of 2024
State : through Mr.Khaleeq Ahmed Deputy Attorney General for Pakistan, Mr. Rafique Ahmed Rajori, Additional Advocate General, Sindh & Mr. Zahoor Shah, Addl. P.G. Sindh.
Pakistan Air Force JAG : through Mr. Amjad Hussain Applicant in Crl. Rev. Qureshi, Advocate. Appl. No. 229 of 2024
Saleem Akhtar, Respondent : through Mr. Umar Farooq, in Crl. Rev. Appl. No. 25 of 2024 Advocate. & Respondent No. 2, in Crl. Rev. Appl. No. 229 of 2024
Date of hearing : 01.03.2025
Date of Judgment : 21.03.2025
Date of Announcement : 26.03.2025
J U D G M E N T
MUHAMMAD SALEEM JESSAR. J - By this single judgment, I propose to dispose of above-said Cr. Revision Applications, as the parties and the subject property in both cases are one and the same.
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2. Through Criminal Revision Application No.25 of 2024, applicant/accused Assad Naeem has assailed the order dated 21.10.2023 passed by learned VIth Addl. District & Sessions Judge, Karachi (West) (Trial Court), whereby an application under Section 7 of the Illegal Dispossession Act, 2005 filed by respondent / complainant Saleem Akhtar was allowed and the applicant / accused was directed to hand over the peaceful -cum-vacant possession of the disputed property to the respondent/complainant.
3. The applicant (Pakistan Air Force) in Criminal Revision Application No.229 of 2024 has assailed the order dated 06.12.2024 passed by the same trial Court; whereby an application moved by the applicant in terms of Section 123 of the Pakistan Air Force Act, 1953 was dismissed and the prayer made therein, was declined.
4. Brief facts of the case, as mentioned in the Direct Complaint filed by the complainant viz. Respondent Saleem Akhtar in instant Revision Applications, under Sections 3 & 7 of Illegal Dispossession Act, 2005, are; that the complainant is the owner of' a piece of land admeasuring 2 -16 acres, situated in Deh Lal Bakhar, Tappo Gabo Pat, Taluka and District West Karachi under Survey No. 318 and the adjoining piece of an open land admeasuring 2 -20 acres, equal to 12100 Sq. Yards from Khet / Survey No. 10 (225 -00 acres out of NC-255) situated a t Deh Lal Bakhar, Tappo Gabo Pat, Hawksbay, District West, Karachi. He further claimed that said properties were purchased by him vide Conveyance Deed dated 12.11.2007 for a total sale consideration of Rs. 12,00,000/-. The said properties initial ly rested with one Ismail son of Yar Muhammad and his entitlement was duly recorded in the record of rights and such fact was verified by Mukhtiarkar (Revenue), Keemari, Karachi and the possession / Qabza right was also verified by the Deputy Commissioner Karachi West. It was further stated by the complainant that he purchased above said Property No. 2 in the year 2017 through registered Sale Deed from one Shoukat Ali whose title was verified by Mukhtiarkar Mirpur Sub -Division Karachi West. According to the complainant, the coast guard officials once attempted to encroach upon said properties , hence, and thereafter an application was moved for demarcation of above said Properties.
5. Grievance of the complainant is that on 18.03.2018 his staff namely, Saeed-ul-Hassan son of Muhammad Hussain and Saleh Muhammad son of
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Chanesar, deputed on said properties , were abducted and the complainant was dispossessed from the properties. The complainant made multiple representations to the government functionaries but of no avail, hence he filed Complaint under the Illegal Dispossession Act, 2005.
6. In the complaint, the complainant also moved an application under Section 7 of the Illegal Dispossession Act for interim restoration of possession to him which was allowed vi de order dated 21.10.2023. The said order has been impugned in Cr. Revision Application No.25 of 2024. PAF has also filed Cr. Revision Application No.229 of 2024 against the order dated 06.12.2024 whereby application for handing over the trial along with R&P to the applicant, was dismissed.
7. I have heard arguments advanced by learned counsel for the parties and have perused the material made available on the record.
8. Learned counsel for the applicant in Criminal Revision Application No. 229 of 2024 submitted that respondent No.1 / proposed accused Asad Naeem is an officer in Pakistan Air Force, therefore, was to be tried by the Military Courts instead of Courts of ordinary jurisdiction. In support reliance was placed upon a decision taken by the Ca binet Division on 07.11.2024 (available as Annexure -B at page -23). Learned counsel for the applicant also placed reliance upon the cases of SHAH ZAMAN and another Versus FEDERAL GOVERNMENT and another (1995 SCMR 464), MUHAMMAD AZAM Versus THE SESSIONS JUDG E, JHELUM AND 7 OTHERS (1980 P.Cr.L.J 999) BRIGADE COMMANDER HEADQUARTERS FIELD COMMAND NLC, KARACHI Versus THE STATE (1996 MLD A69) and KHALIL AHMED Versus DISTRICT AND SESSIONS JUDGE, RAWALPINDI and another (1990 P.Cr.L.J 1744).
9. Learned counsel for respondent No.1 submitted; since respondent No.l is an Air Force personnel, therefore, he has no objection if by granting instant application, impugned order is set aside and the case is handed over to the Military Court in terms of the application submitt ed by the applicant under Section 549 Cr. P.C.
10. Learned counsel for respondent No.2 / complainant opposed the revision application on the ground that decision of the Cabinet Division was taken much later than the cognizance taken by the trial court. Besides, the issue involved in this case has already b een decided by this Court in Cr. Misc.
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Application No.107/2023, hence, the Cabinet Division has no authority to override the judgment passed by the superior Court. Learned counsel for respondent No.2 also placed reliance upon Criminal Procedure (Military Offenders) Rules, 1970 and its clauses No.2, 3 & 4 and submitted that earlier the applicant had moved certain applications before the trial Court in this connection, which had been dismissed; however, after decision of the Cabinet Division, a fresh applica tion was filed, which too was dismissed by way of impugned order. According to learned counsel, Charge against the accused/ respondent No.1 has already been framed and the complainant and one witness have also been examined, therefore, claim of the applica nt, at this juncture, is unjustified and against the norms of settled principle of law. He, therefore, submitted that by dismissing instant revision application, learned trial Court may be directed to proceed with the trial and decide the matter within shortest possible time.
11. As far as, Criminal Revision Application No.25 of 2024 is concerned, learned counsel for the respondent submitted that examination -in-chief of the complainant as well as one PW has been recorded in terms of order dated 01.02.2025; however, he undertook that he will produce all the remaining witnesses before the trial Court on 04.03.2025. In support of his contention, learned counsel placed reliance upon the cases of ATTA RASOOL and 3 others Versus Haji MUHAMMAD RAFIQUE and 2 othe rs (2019 P.Cr.L.J 1023), Shaikh MUHAMMAD NASEEM Versus Mst. FARIDA GUL (2016 SCMR 1931), MUHAMMAD ISMAIL NIZAMI and others Versus JAVED IQBAL and another (2016 SCMR 2039), MUHAMMAD ALI Versus ABDUL HAQ and 2 others (2010 MLD 1920), KHAIR MUHAMMAD and 12 others Versus ALI SHER and 4 others (2022 P.Cr.L.J 1603) and FEDERATION OF PAKISTAN through SECRETARY, MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS, ISLAMA RAD Versus ZAFAR AWAN, ADVOCATE, HIGH COURT (PLD 1992 Supreme Court 72).
12. Mr. Kashif Hanif, learned counsel for applicant in Criminal Revision No. 25 of 2024 and respondent No.1 in Cr. Revision Application No.229 of 2024 undertook that he will conduct the cross -examination of all the witnesses ought to be produced before the trial Court on 04.03.2025.
13. Learned Deputy Attorney General for Pakistan submitted that all the orders impugned before this Court are interlocutory in nature and the main case has not been decided as yet.
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14. It is settled law that when a legal objection relating to ma intainability / jurisdiction is raised, such legal question is to be decided in the first instance. In view of this legal position, in the first instance, I would like to deal with Cr. Revision Application No.229 of 2024 which has arisen as a consequence of dismissal of an application moved by the applicant PAF for handing over criminal proceedings along with R&Ps of the case to the applicant for his trial before the Military Court in view of the decision of Federal Government/Cabinet bearing No.556/Rule-19/2024/926 dated 07.11.2024.
15. From perusal of the record and the material placed before this Court, it seems that a complaint under the Illegal Dispossession Act, 2005 was filed by complainant Saleem Akhtar , respondent No.2 herein, in the year 2018 which was transferred to the Court of Xth A.D.J. Karachi West (Trial Court) vide order dated 14.07.2018, inquiry report was called and after hearing the parties and taking into consideration the inquiry report. Le arned trial Court took cognizance and issued bail-able warrants against the proposed accused A ssad Naeem to appear before the Court and furnish solvent surety of Rs.1 lac. The trial Court also wrote a letter dated 28.08.2018 to J.A.G. Pakistan Air Force Headquarter at Peshawar in respect of the subject case, but the same was not responded to by the J.A.G. P.A.F. Headquarter. However, when the matter was transferred to the trial court, the P.A.F. was duly represented by the counsel appointed by PAF, to conte st the matter, whereas the proposed accused namely, Assad Naeem never put his appearance before the Court, nor was represented by any counsel. Air Force authority filed an application on 21.04.2018 praying therein for proceeding with the trial of the propo sed accused by the PAF authorities; however, said application was dismissed vide order dated 01.11.2021 which order was never challenged, thus the same attained finality.
16. Yet, another application under Section 265 -K Cr. P.C. was filed on behalf of the proposed accused Asad Naeem which was also dismissed by trial court vide order dated 30.11.2022 . T he said order was assailed before this Court by means of filing Cr. Misc. Appl. No.107/2023 which was dismissed vide judgment dated 13.09.2023. In the said j udgment, question of jurisdiction as per provision of section 123 of PAF Act 1953 was also discussed. The said judgment has also not been challenged either by the concerned authority of PAF or the applicant / accused himself. It also appears that the accu sed Asad
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Naeem has claimed benefit under section 197 Cr.P.C. being an officer of the Federal Government, despite the fact that said provision of law has been declared repugnant to injunction of Islam by the Hon‟ble Sharia Appellate Bench of Pakistan in the case of FEDERATION OF PAKISTAN through SECRETARY, MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS, ISLAMABAD Versus ZAFAR AWAN, ADVOCATE HIGH COURT (PLD 1992 72 ). Not only this, but the PAF authority filed yet another application under section 549 Cr. P.C read with Section 123 PAF Act, 1953 and Rule 2 and 3 of Criminal Procedure (Military Offender) Rules 1970, which was also dismissed vide order dated 18.11.2023 . The said order was challenged before this Court through Cr. Misc. Application No.84 of 2023, in which office raised objection that “how this criminal misc. application is maintainable when the impugned order was passed in ID complaint”. Ultimately, the s aid application was withdrawn.
17. At this juncture, it may be observed that while deciding Cr. Misc. Appl. No.107 of 2023, which was filed by accused As sad Naeem against the order of trial Court whereby his application under Section 265 -K Cr. P.C. was dismissed vide order dated 30.11.2022, this Court held as under:
“…..it is crystal clear that he has got no respect for the process of the Court. He avoided to appear before the trial Court f or about two years and it was only when the trial Court took coercive steps by initiating proceedings under Sections 87 and 88 Cr. P.C. and issuing directions to NADRA for blocking his CNIC, that the applicant / accused rushed to the trial Court after obta ining protective bail from this Court. It is apparent that no tangible material has been produced by the applicant / accused to show that there is no probability of his conviction in the instant case. In the instant case disputed factual aspects are invol ved and the same could be resolved only after recording of evidence of the witnesses. In the circumstances, unless and until evidence is recorded, it cannot be determined with certainty that there is no likelihood that the applicant / accused would not be convicted in the instant case.”
18. While dealing with the legal objection to the effect that accused / applicant, being an Air Commando, cannot be tried by an ordinary Court, it was held:
“Learned counsel for the applicant has also raised legal objection to the effect that the applicant, being an Air Commando, cannot be tried by an ordinary Court. Learned counsel for complainant / respondent No.3 in rebuttal to such contention submitted th at where an army personnel is guilty of a civil offence, it is not necessary that he should be tried by the Court Martial as envisaged in Section 94 of Pakistan Army Act. In support of his contentions, learned counsel placed reliance upon the cases of IFTI KHAR AHMED JAMAL Versus The STATE (PLD 1983 Federal Shariat Court 221).
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Section 94 of Army Act, 1952 reads as under:
“94. Order in case of concurrent jurisdiction of Court martial and Criminal Court. -When a Criminal Court and a Court martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a Court martial, to direc t that the accused person shall be detained in military custody.”
19. From bare perusal of above -quoted Section of Army Act, 1952, it is evident that where an army personnel is alleged to be involved in the commission of a civil offence, then jurisdiction of an ordinary Criminal Court is not ousted and there seems to be no bar in conducting trial of such person by an ordinary Criminal Court. If an authority is need ed, reference may be made to the case of Iftikhar Ahmed Jamal (supra). In view of this legal position, the above legal plea raised on behalf of the applicant / accused is not sustainable.
20. It is pointed out that the above judgment has also not been cha llenged before the higher forum, thus above said finding given by this Court attained finality and cannot be re-agitated and reopened.
21. Besides, the language of Section 123 of PAF Act, 1953 reveals that its applicability is restricted to the cases only where there is concurrent jurisdiction of criminal court and court martial, whereas there is no concurrent jurisdiction of the trial Court viz. Court constituted under Illegal Dispossession Act, 2005 and the Court -Martial of the Air Force which fact has also been admitted by the applicant‟s counsel in his written arguments to the effect that “concurrent jurisdiction” means simultaneous jurisdiction vested in Criminal Court and Court-Martial of the Air Force, whereas the trial Court is a Special Court and not an ordinary Criminal Court.
22. It is evident that illegal Dispossession Act. 2005 is a special law and section 4 thereof contains non -obstante clause. Relevant provisions of PAF Act, 1953 envisage that section 123 of the said Act is not applicable to the special laws. In this context, reference can be made to the provision of Section 71, Sections 4 (xi), 4 (xvi) and 123 of PAF Act, 1953. In view of this legal position, the provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005 shall prevail over the provision of section 123 of PAF Act, 1953.
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23. It seems that the applicant has mainly stressed their prayer on the basis of decision of Cabinet Division as reflected in the letter No. 556/ Rule - 1912024/926 dated 07 -11-2024. As stated above, prior to such decision of Cabinet Division, applications had been moved by the PAF for transferring the trial to Military/Court Martial which were dismissed and the dismissal orders were not challenged before the higher forum. It was when the trial was in progress and the complainant and one witness had been examined before the trial Court, that the applicant PAF came with such plea that in view of the decision of the Cabinet Division, the trial court has no jurisdiction and that the trial of the accused is to be conducted by the Military/Martial Court.
24. In fact, Federal Cabinet Decision No.556/ Rule -1912024/926 dated 07 - 11-2024, is based on the provisions of section 124 (2) of PAF Act 1953 and Rule 6 (2) of Criminal Procedure (Military Offender) Rules 1970, which are not attracted in the present case as this case is governed under the provision of section 123 of PAF Act 1953 read with Rule 2 and 3 of Criminal Procedure (Military Offender) Rules1970. Moreover, in the said letter no reference has been ma de to the judicial order passed by the trial Court on 01 -11-2021 in which the question of jurisdiction had already been decided and the said order was not challenged before high forum, as such the same attained finality. Besides, similar order dated 30 -11-2022 was passed by the trial court which was assailed through Cr. Misc. Application No. 107/2023 in this Court and the question of jurisdiction was determined by this Court vide judgment dated 13-09-2023. This order was also not challenged as such the ques tion of jurisdiction attained finality. Thereafter, the applicant made another attempt for transfer of offender and his trial to Military Court by filing application before the trial court through JAG branch which was again dismissed vide impugned order da ted 18 -11-2023 which was challenged by the applicant before this Court by filing Criminal Misc. Application No.84/2024, which was ultimately withdrawn unconditionally and stood disposed of vide order dated 18-1-2025 as such the same also attained finality. Despite this, surprisingly the applicant again filed sımilar application on the basis of letter dated 07 -11-2024 issued by the Federal Government, which too was dismissed by the trial court vide order dated 06 -12-2024, the same has been challenged in the instant revision application. It is pertinent to mention that said letter regarding decision of Cabinet Division is quite silent with regard to above -mentioned judicial orders, as such the same has no value in the eye of law.
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25. Besides above, it also seems that in present case not only the cognizance has been taken but the charge has also been framed and the complainant as well one witness have been examined . As far as the point of jurisdiction is concerned, it has also already been determined by this Court. It is also noteworthy that no minutes of meeting of Federal Cabinet have been attached alongwith the above referred letter dated 07.11 2024, thus the said letter is silent as to whether the above facts as to cognizance, framing of charge etc. and determination of jurisdiction by the trial Court as well as by this Court were apprised to the cabinet division at the time of taking above said decision. Needless to emphasis that the decision of the cabinet division taken without following the procedure / law and in contravention of the judicial pronouncement is not sustainable in the eye of law.
26. Reference in this context can be made to the judgment passed by a Full Bench of Honourable Supreme Court in the case of Government of Sindh and others Vs. Messrs SAIF TEXTILE MILLS LTD. and 6 others, reported in 2003 SCMR 265. The relevant portion from the judgment is reproduced hereunder:
“These appeals, by leave of the Court, are directed ag ainst the order passed by Peshawar High Court, Peshawar. Operative para from the leave granting order is reproduced hereinbelow:-- “The petitioner contended before us that the office order issued on the basis of ECC decision of the Cabinet Division could not be considered as a notification issued in terms of provisions of the Customs Act, and therefore, the exemption, which was claimed on the basis of this decision of ECC of the Cabinet Division, could not be given effect to by amending the judgment alread y pronounced by the Court in the main writ petitions. It is also contended by the learned counsel for the petitioners that in any case if the respondents wanted to enforce the decision of the ECC of the Cabinet Division, which was based on a separate cause of action, they should have filed a separate petition the order already passed by the Court disposing of the main writ petitions could not be amended so as to give effect to the above decision. The contentions raised by the learned counsel for the petitio ners require further reexamination and we, accordingly grant leave to appeal in all these Petitions."`
27. Ultimately, after hearing the counsel for the parties, appeal was dismissed, meaning thereby that it was declared that the decision of ECC of the Cabinet Division could not be given effect to by amending the judgment already pronounced by the Court in the main writ petitions i.e. the said decision of the Cabinet Division cannot override the judgment already pronounced by the High Court.
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28. Reference can also be made to an unreported judgment passed by a Division Bench, headed by Honouranle Chief Justice of this Court in C.P. Nos.D-125 & 403 of 2018 a/w C.P. No.D-4711 of 2018 , wherein it was held as under:
“In view of hereinabove factual and legal position, common relief sought in above petitions against freezing of Special Judicial Allowance to all the cadres of officers and staff of the Sindh High Court, its Benches and its Circuit Courts, Judicial Officers of District Judiciary Sindh and s taff of District & Civil Courts of Sindh as well as applications in disposed of petition i.e. C.P. No.D -403/2018 vide order dated 29.10.2020, are allowed and impugned Office Memorandum dated 13.07.2022 is hereby set aside to the extent of Para 9 of Special Pay and Allowance, including civil employees in BPS -1 to 22 of Judiciary shall stand frozen at the level of its admissibility as on 30.06.2022 as well as decision at Item No.7.10(i), as reflected in the Minutes of the Provincial Cabinet Meeting held on 11 .10.2022 and the decision at Item No.21.8, as reflected in the Minutes of the Provincial Cabinet Meeting held on 01.12.2023 to this effect are hereby declared to be illegal and without lawful authority for having no factual and legal basis and having been issued/decided in complete violation of the decision of judicial pronouncement on the subject and the directives issued by the Hon’ble Chief Justice of this Court pursuant to such decision as well as contrary to the orders passed in the aforesaid petitions on the basis of undertaking given on behalf of the Government of Sindh, as reflected in order dated 25.05.2018. Since the decision(s) taken by the Provincial Cabinet, Government of Sindh relating to Special Judicial Allowance, besides being arbitrary, has no factual or legal…
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