' MANSOOR AHMAD, J.---The instant writ petition was filed by Haider Hussain, petitioner who sought the following relief:-
(a) "Proceedings taken and the conviction recorded against the petitioner as well as the sentence passed upon him by the above-said General Court Martial be All declared to have been done without lawful authority and to be of no legal effect, and
(b) The petitioner be directed to be released forthwith since his detention is illegal, mala fide and without jurisdiction."
' The petitioner was convicted and sentenced for charges under section 52-F of the Pakistan Air Force Act, 1953 (Act VI of 1955) to suffer rigorous imprisonment for 14 years and was dismissed from service on 1-5-1988. The petitioner was tried in General Court Martial, held in Peshawar and vide its order dated 1-5-1988 he was convicted and sentenced. The petitioner was Wing Commander in Pakistan Air Force and vide charge sheet dated 16-1-1988 issued by the Air Headquarter he was charged for doing a thing with intents to cause wrong to a person. It was narrated in the charge sheet that the petitioner while employed as Director Administration, Mirage Rebuild Factory (MRF), Pakistan Aeronautical Complex (PAC), Kamra between April and May, 1985 and June, 1986 dishonestly caused wrongful loss for a sum of Rs,36,04,772.40 and Rs,13,28,609 respectively through fake entries of receipts in the contingency register mentioned in Annexure-I to the charge. Sheet.
The petitioner submitted a petition from the jail to the then Chief of Air Staff under the provisions of section 160(2) read with Notes 2 and 2-B of the P.A.F. Act. The sentence awarded to the petitioner is stated to be remitted on 30-1-1991; that the petitioner challenged the investigation of the case and steps taken to the convening of General Court Martial in the case and inter alia raised the following contentions:--
(a) That the Chief of Air Staff/Deputy Chief of Air Staff, Air Headquarter had no jurisdiction or authority to convene Board of Inquiry and order a summary of evidence into the affairs of Mirage Rebuild Factory, Kamra which was an independent body under the Defence' Production Division and had nothing whatsoever to do with the Pakistan Air Force.
(b) That the allegations against the petitioner were in respect of certain irregularities committed in the store and stationery of Mirage Rebuild Factory (M.R.F.) which is an Ordnance Factory under Schedule II read with rule 3(3) of the Rules of Business, 1973 and the business of the Ordnance Factory comes solely within the jurisdiction of the Defence Production Division. Therefore, according to the petitioner only the Secretary, Defence Production Division (DPD), Director-General, Pakistan Aeronautical Complex (PAC) could order for holding an inquiry into the funds of M.R.F. But the inquiry was conducted suo motu under the suo motu orders of Deputy Chief of Air Staff (Administration) Air Headquarter, Peshawar, therefore, it was without jurisdiction.
(c) That the case against the petitioner was based on the investigation which was without jurisdiction as it was initiated under the orders of Deputy Chief of Air Staff Administration, therefore, the summary of evidence recorded against the petitioner alongwith the General Court Martial proceedings was also without jurisdiction. Adding to his contention, the petitioner stated that Board of Inquiry and summary of evidence could only be initiated by the Secretary, Defence Production Division who had the control over M . R . F .
(d) Next it was contended by the petitioner that the only reason for interference of the Air Headquarter directly into the financial affairs of the Defence Production Division was to get the desired result and save the Managing Director, Kamra from possible blame and it was mala fide act on the part of the Air Headquarter and the petitioner was made a scapegoat on account of the said mala fide on the part of the authorities.
2. The petitioner himself argued his case as after his removal from service, he enrolled himself as an Advocate. Controverting the allegation of the petitioner, Qazi Ahmad Naeem Qureshi, learned Federal Counsel for the respondents alongwith the learned Judge Advocate-General of Pakistan Air Force appeared and argued.
3. The preliminary objection in terms of sub-clause (3) of Article 199 of the Constitution of Pakistan, 1973 was raised on the ground that the petitioner was an officer of the Pakistan Air Force in the uniform and action was taken against him under the Air Force Act. 1953, and the matter pertains to terms and conditions of an employee of Air Force, it was contended, as such, the case falls within the provisions of sub-clause (3) of Article 199 of the Constitution and the petition is liable to be dismissed on this ground alone. Conversely, the petitioner has argued that his case is based on lack of jurisdiction on the part of the Air Headquarter, Pakistan Air Force and it was an action patently mala fide. Therefore, according to him, the bar container in sub-clause (3) of Article 199 of the Constitution is not attracted in the circumstances of the case.
' He placed reliance on the following judgments:--
(i) Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan through Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and others PLD 1969 SC 174.
(ii) The State v. Zia ur Rehman and others PLD 1973 SC 49.
(iii) The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC ;151.
(iv) Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506.
(v) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26.
(vi) Federation of Pakistan and 2 others v. Khurshid Ahmad and another 1999 SCM R 664.
(vii) Ex-Lt.Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549.
4. Before examining the contentions raised by the petitioner it would be of advantage to reproduce Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973. It reads as under:-- "An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."
5. Although there is a presumption against ouster of jurisdiction of the superior Courts but the ouster clause has to be narrowly construed for the reasons that the people who are oppressed and their rights are infringed have to seek redressal of their grievances before a forum established under the Constitution. This principle was initially enunciated in the cases of Zia-ur-Rehman and Malik Ghulam Mustafa Khar, quoted above. It, therefore, follows that acts, orders, proceedings, which are done, made or taken without jurisdiction, mala fide or coram non judice are not saved from the scrutiny of the Courts by ouster clause.
' There are two categories of cases which has been dealt with by the superior Courts of this country wherefrom emenates the precedents. One category of cases are those which relate to orders passed, act done or action taken or conviction passed by any summary Military Court or Martial Law Authorities and other category of cases are those which relate to the terms and conditions of the officers in uniform. Most of the cases pertain to the first category and the superior Courts ordinarily and in routine hardly shown any reluctance to interfere or judicially review the act of the authorities, however, where the dispute fell within the parameters of terms and conditions of service of personnel of Armed Forces interference is sparingly made. Jurisdiction under Article 199 of the Constitution though very wide but it has to be regulated by the Court keeping in juxtaposition the other relevant Constitutional provisions in exercising the jurisdiction under Article 199 of the Constitution. Admittedly, the framer of the Constitution intended to provide a baring clause in the form of Article 199(3) of the Constitution to abridge and limit the jurisdiction of the superior Courts to judicially review the act, order or authority exercised in relation to and in respect of the terms and conditions of service of the personnel in all the three forces in uniform. This bar is provided to maintain discipline in Armed Forces and infuse strength to command and control of Defence Forces. In the cases of Saeed Ahmad Khan and others and Malik Ghulam Mustafa Khar (supra) the scenario was different. Even in F.B. Ali's case the facts were peculiar in its own circumstances. These cases are not the precedents in a plain service case. In the present case, the petitioner was Wing Commander in uniform. He was posted in M.R.F. Kamra and charges against him were wrongful loss within the provisions of section 52 of the Pakistan Air Force Act, 1953. The bar contained under Article 199(3) of the Constitution would come into play in the present case if iurisdictional defect and plea of mala fide raised by the petitioner are found without substance. As regards his plea of mala fide and coram non judice, we propose to deal and decide these pleas in the succeeding paragraphs.
7. The petitioner argued that Deputy Chief of Air Staff (Administration), Air Headquarter. Peshawar was not authorized to order Board of Inquiry as he was not holding status of an officer in command of any unit or body of P.A.F. Kamra which was commanded by a Managing Director who according to him was a Unit Commander and Managing Director was under the Director-General Pakistan P.A.C. Kamra who was the Station Commander. Referring to rule 191(1) contained in Chapter VIII of Manual of Pakistan Air Force Law the petitioner argued that ordering Board of Inquiry and investigation of the case of the petitioner was not within the competence and jurisdiction of Deputy Chief of Air Staff (Admn.).
8. Conversely, the Judge Advocate-General of Pakistan Air Force relying on rule 191(2) of the Pakistan Air Force Act, 1953 controverted the contention of the petitioner and stated that a Board of Inquiry may be assembled by an officer in Command of any unit or body of the Air Force or any superior authority and the Deputy Chief of Air Staff was superior authority in case of the petitioner.
Adding further to his arguments, he pleaded that the petitioner was a Wing Commander and an officer in uniform of the P.A.F. His posting at the relevant time was Director Administration, M.R.F.
Kamra. Merely, posting of the petitioner in M.R.F. Kamra would not take the petitioner out of the ambit of the P.A.F. Act and the petitioner remained subject to the Act. Adding further to his arguments, the Judge Advocate-General submitted that the posting of the petitioner in M.R.F.
Kamra was not even secondment and referring to a Notification No,282/78 issued under subs- clause (c) of clause (XXX) of section 4 of the Pakistan Air Force Act. 1953 it was pointed out that the Federal Government had declared the Aeronautical Complex at Kamra as a unit of P.A.F. As such according to the learned Judge Advocate-General of the P.A.F., the petitioner was neither on deputation nor on any secondment and he was directly working in a unit of Pakistan Air Force.
Therefore, in his case the Deputy Chief of Air Staff (Administration) was competent superior authority to pass an order for convening General Court Martial as well for Board of Inquiry. .
9. We have examined the various provisions of P.A.F. Act and the rules and find that even under rule 191(2) it is provided that a Board of Inquiry may be assembled by an officer in command of any unit or body of the Air Force or any superior authority. The expression "superior authority" embraces the Deputy Chief of Air Staff and Chief of Air Staff, as such we do not find much substance in the contention of the petitioner and hold that the Board of Inquiry held in case of the petitioner under order, of the Deputy Chief of Air Staff (Administration) did not suffer with any jurisdictional defect.
10. The second limb of the arguments of the petitioner relating to jurisdiction is based on rule 191(4) which is reproduced below for ready reference:-- "Where, in the opinion of the authority who assembles the board, any of-the matters to be referred to it concerns any part of military or naval forces, or any civil department of the Government, or where for any reason it is considered expedient or desirable, the said authority may, with the consent of the proper military, naval or civil authority, appoint one or more . Military officers and/or one or more naval officers and/Or -one or more civilian gazetted officers, to be members of the Board, provided that the president shall be an officer of the Air Force."
Referring the said rule, the petitioner argued that the irregularity alleged against him were in the stationery store of the Defence Production Division, which according to him was a civil organization, therefore, a gazetted civilian officer was required to be made a member of the Board. This contention of the petitioner was controverted by the Judge Advocate-General. Admittedly, the petitioner was posted in M.R.F. Kamra which was declared to be a unit of P.A.F. As such it could not be denominated as civil organization and the arguments of the petitioner are without any substance. Accordingly, the same are repelled.
11. Assailing the jurisdiction of the Deputy Chief of Air Staff, thirdly, the petitioner has argued that General Court Martial was convened and conducted in contravention of the Rules of Business, 1973.
In that the petitioner has argued that according to Schedule II, rule 3(3) of the distribution of business among the Divisions, it is contemplated that Defence Division is responsible for the store and stationery for the Defence Division other than those dealt with by the Defence Production Division. As such according to him only the Director-General, P.A.C. Kamra or the Managing Director, M.R.F. Kamra could investigate and take action against him for any alleged irregularity in the stationery and store of M.R.F. Kamra. Again we do not find any force or substance in the arguments of the petitioner for the reason that he was an officer in uniform subject to Act of 1953 and was posted in M.R.F. Kamra which was declared to be a unit of P.A.F. And for any disciplinary action against him relevant law was Pakistan Air Force Act.
1953. Rule of Business. 1973 were framed under Articles 90 and 99 of the Constitution of Pakistan, 1973 to regulate the business amongst various Divisions and Departments of the Government and did not confer any right on the petitioner, or contemplated provision, whereby the petitioner who was held to be subject to Pakistan Air Force Act, 1953, could be taken out from its ambit merely by reasons of his posting in M.R.F. Kamra or merely for the reasons that allegation against him related to stationery and store of the factory.
12. Next it was .Argued by the petitioner that before ordering for the summary of evidence, the Commanding Officer has to form an opinion in respect of the charge before him and as no charge was brought before the Managing Director, M.R.F. Kamra to form an opinion or exercise discretion, therefore, there was a jurisdictional defect which has vitiated entire proceedings. And this argument of the petitioner is also repelled.
13. Charge-sheet dated 6-4-1987 was issued by Air Commander/Managing Director, M.R.F. Kamra.
Below the charge-sheet it was also ordered by the M.D., M.R.F. Kamra directing summary of evidence to be recorded. Thus it is manifested that the summary of evidence in the case of petitioner was recorded under the order of M.D., M.R.F., Kamra. Routine order dated 11-11-1987 issued under the directions of M.D., M.R.F., Kamra shows that additional summary of evidence was also recorded. These documents clearly show that the charge was brought before the Managing Director, M.R.F., Kamra and under his order, summary of evidence was recorded under the provisions of rule 42 of the Pakistan Air Force Act Rules. Finding no legal infirmity, the plea of the petitioner is devoid of any force and it is repelled.
14. Careful analysis of all the rules referred to above relating to the Board of Inquiry, summary of evidence and convening of Court-Martial General, we find that no jurisdictional defect occasioned in the case, of the petitioner, therefore, it is held that the proceedings, initiative, taken up. Which culminated in the judgment and conviction by Court-Martial General was in accordance with the law and the plea of the petitioner in respect of the lack of jurisdiction, coram non judice etc. Are without substance and the same are hereby rejected.
15. The next contentions of the petitioner relate to discrimination and mala fides. It is contended by the petitioner that the Board of Inquiry recommended appropriate action against the Store Incharge/U.D.C., Altaf Hussain and all contractors/suppliers but no action was taken against them and the petitioner was singled out and proceeded against. According to the petitioner, this act of the department was violative of Article 25 of the Constitution of Pakistan being discriminatory. The record reveals that Altaf Hussain was merely a U.D.C. Working as Clerk under the command and control of the petitioner. He was a civilian and was treated under the Efficiency and Discipline Rules, 1973. He was examined as an approver witness. It was pointed out by the Judge Advocate-General that against Altaf Hussain, U.D.C. And the contractors, the petitioner has filed a complaint before the Special Judge Central which was dismissed but the copy and the record of the complaint is not before us. However, dealing with the question of discrimination, suffice it to observe that Altaf Hussain, U.D.C. Was not similarly placed as, he was neither a senior officer nor a person in uniform nor holding an administrative position, he was merely working under the control of the petitioner, at the most he may be denominated as one of the accomplices of the petitioner and it was up to the prosecution i.e, the P.A.F. Authorities to examine him as a witness or to array him as one of the accused. On the principle of intelligible classification the case of the petitioner was not at par with U.D.C., Altaf Hussain, therefore, the plea of the petitioner is unfounded and the same is also rejected.
16. Next it is contended by the petitioner that the Board of Inquiry, recording of summary evidence and convening of= General Court Martial was mala fide. He argued that the summary of evidence and additional summary of evidence was on the charge of misappropriation. The basis of the recommendation was also the same charge but in the General Court Martial the charge of misappropriation was not followed and instead a new charge under section 52-F of the P.A.F. Act, 1953 which was for causing a wrongful loss to a person was added. This alteration in the charge was not permissible. Perusal of the evidence shows that summary of evidence was recorded on the basis of charge-sheet which contains two charges for the sake of facility. The contents of the charge are reproduced below for ready reference:-- Charge-sheet "The accused Wing Commander Haider Hussain Pak/4315, A&SD (ATC) attached to M.R.F., P.A.C.
Kamra, an officer of the Air Force is charged with:-- ' DOING A THING WITH INTENT TO DEFRAUD, in that he, At M.R.F. Kamra between April/ May, 1985 and June, 1986 while employed as Director Administration dishonestly effected fake entries of receipt and issue in the contingency register of purchases made in respect/items mentioned in Annexure I to the charge-sheet and thereby fraudulently misappropriated a sum of Rupees 5,549,971.
' DOING A THING WITH INTENT TO DEFRAUD, in that he, ' At M. R. F., P.A.C., Kamra between April/May, 1985 and June, 1986, while employed as Director Administration dishonestly effected fake entries of receipt and issue hi the conservancy register of purchases made in respect of items mentioned in Annexure II to the charge-sheet and thereby fraudulently misappropriated a sum of Rs,339,478."
17. A hare perusal of the charge-sheet shows that the petitioner was charged under section 52-F of the P.A.F. Act which is reproduced as under:-- "does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person;"
' We do not find any discrepancy in the charges against the petitioner and in summary of evidence as well in the General Court
18. The petitioner has also argued that because of some past incidents between the wife of the Managing Director, M.R.F. Kamra and the petitionet's wife, there was annoyance of M.D. And the petitioner was ultimately victimized. To constitute mala fide the petitioner was to prove either malice in law or malice in fact. For malice in fact the petitioner was required to specifically plead and prove those facts and in the absence of any such pleadings and proofs no finding on mala fide of fact can be recorded merely on the basis of ipse dixit of the petitioner. Regarding the malice in law the petitioner has repeated the same arguments which he earlier submitted to show that neither Board of Inquiry nor the summary of evidence nor convening of General Court Martial was ordered against him by the competent authority. As we have already held that no jurisdictional defect has been found in exercise of the jurisdiction of the competent authority by the P.A.F. Air Headquarter Peshawar, thus the plea of the petitioner even on the score of mala fide also fails.
19. As the petitioner has failed to show or substantiate any lack of jurisdiction on the part of P.A.F.
Headquarter Peshawar to initiate proceedings in his case or substantiate plea of coram non judice, we have no option but to hold that the inquiry, initiative, investigation made are trial effected in the case of the petitioner through the process of Board of Inquiry, summary of evidence and General Cou t Martial was in accordance with the law and the same neither suffered with any lack of jurisdiction nor of any mala fide or discrimination. On reaching to this conclusion, we have to hold accordingly that the writ petition filed by the petitioner was hit by the provisions of Article 199(3; of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, the same is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.