' Waseem Pasha Tajammal/Major (Rtd.) son of General Tajammal Hussain Malik while posted at Multan Cantt., came to Rawalpindi on a short leave in December, 1998 where, his parents and other family members were residing in a rented house and on the same day he murdered his wife and the local command took the petitioner into custody and placed him under arrest from that date and a case F.I.R. No. 349 dated 1-12-1998 under section 302 P.P.C. Had been registered at Police Station Airport, District Rawalpindi. Later on, the petitioner was tried by a Field Court Martial. He was convicted under section 302 P.P.C, and sentenced to 14 years R.I. His conviction and sentence had not been confirmed by Chief of Army Staff on 11-9-1999 and thereafter the accused was handed over to Civil authorities/police by the Army authorities for action in accordance with law on 10-3- 2000.
2. The petitioner had been lodged in Adeyala Jail, who was thereafter released on bail by the learned ASJ, Rawalpindi vide order dated 15-3-2000. Learned District and Sessions Judge Rawalpindi vide order dated 13-10-2000 discharged the petitioner from the case on the ground that the petitioner was tried by the competent Army authorities under Pakistan Army Act, and therefore, entitled for protection U/A 13 of the Constitution of Islamic Republic of Pakistan, 1973, which enshrines that no person can be prosecuted twice on the same charge on which he had already been tried, convicted or acquitted.
3. The petitioner was compulsory retired by the Army/Federal Govt., on the recommendation of AG's Branch (PS Dte.). The petitioner through this petition has challenged his demotion to the rank of Captain and compulsory pre-mature retirement being an act of mala fide.
4. Learned counsel for the petitioner argued that the conviction and sentence of the petitioner by the Field Court Martial constituted by the Military authorities had not been confirmed by the next competent authority and the petitioner would not be deemed to be a convict. Further argued that the Civil/Sessions Court had also exonerated the petitioner from charge of murder and no allegation against the petitioner for taking the law to his own hands had been established; that the petitioner was pre-mature retired from Army Service without showing any fault; that the petitioner had been removed from Army Service malafidely and where the action of the authority is based upon mala fide, this Court while exercising its Constitutional jurisdiction would be competent to interfere.
5. On the other hand, learned Standing Counsel as well as Lt. Col. A.A.-G. Have vehemently opposed the arguments addressed by the learned counsel for the petitioner, contending that an officer in the opinion of the Federal Govt. Who has by reason of misconduct become unworthy of holding the commission in. The Pakistan Army, shall be liable to be removed from the service and the powers of the Federal Govt, are unfettered in this regard and this Court in exercise of its Constitutional jurisdiction under Article 199 (3) of the Constitution has no jurisdiction to interfere with the order passed by the Federal Government.
6. I have heard the learned counsel for the parties and perused the record.
7. The petitioner has been tried on the allegation of committing the murder of his wife by Field Court Martial and was sentenced to 14 years RI under section 302 P.P.C. The conviction and sentence passed by the Field General Court Martial is subject to confirmation as provided in Section 119 of Pakistan Army Act which reads as under:-- "No finding or sentence of a General, District or Field General Court Martial shall be valid except in so far as it may be. Confirmed as provided by this Act."
' The result of section 199 is that if a finding of guilty is not confirmed it is invalid; consequently, there is no conviction or 'acquittal, and the accused would not be deemed to be convicted or acquitted by a Court Martial for the purpose either of any subsequent trial or of any entry in service books or of any forfeiture. Thereafter by not confirming the sentence of the petitioner awarded by Field General Court Martial, he was neither convicted nor acquitted. However, his case was referred to Civil/Sessions Court, who acquitted the petitioner from the charge on the ground of double jeopardy.
8. The grievance of the petitioner is that despite he being proved not guilty in the offence, his services have been terminated illegally, without lawful authority and malafidely.
9. Section 16 of the Pakistan Army Act, 1952 empowers the Federal Govt. To dismiss or remove from service any person under this Act and the dismissal of an officer would be approved by the competent authority before the issuance of the orders as provided in Schedule VA and VB to Rules 15 and 15A of the Rules of Business 1973. So much so, the Chief of Army Staff under section 16 of the Act may dismiss or remove from the service any junior commissioned officer, or warrant officer, or any person enrolled under this Act. (2) An Officer having power (to convene a District Court Martial or an officer not below the rank of Lieutenant Colonal) empowered by the (Chief of Army Staff) in this behalf may dismiss or remove from the service any person enrolled under this Act, who may be serving under his command. Section 18 of the Act further provides that the prescribed authority may, in conformity with such rules as may be prescribed in this behalf, retire, release or discharge from the service any person subject to this Act. In this context, reference can be made to rule No.12 of Pakistan Army Act Rules which reads as follows:-- "Authorities empowered to authorise retirement, release or discharge:-
(1) (a) The retirement or release of an officer shall be authorized by the Federal Govt. And notified in the official Gazette. The Federal Government may at any time terminate the services of any officer."
' From the bare reading of the above referred provision of law, it reveals that service of an Army Officer can be terminated by the Federal Government at any time and there is no requirement of law in the Army Act or in the Rules to assign any reason.
10. The petitioner has been compulsory retired/terminated by the Federal Government in exercise of its powers under AR (R) 78-c which emerges that Federal Government is empowered to terminate the services of an Army Officer at any time with reference to sections 16 and 18 of Pakistan Army Act and Pakistan Army Act Rules, rule No.12.
11. Now the question that boils down for determination in this case is that whether this Court is competent to exercise its jurisdiction under Article 199 of the Constitution in aid of the petitioner.
Article 199 (3) of the Constitution has imposed restrictions on the Court that 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 A 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. Reference in this context can be made to cases of Captain Iftikhar Ahmad reported as (2001 YLR 2679), and Exh. Lt.. Col. Anwar Aziz v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi (PLD 2001 SC 549), wherein, the Hon'ble Judges of the Supreme Court of Pakistan have held that where matter was related to terms and conditions of service or in respect of any action taken in relation to members of Armed Forces or a person subject to Pakistan Army Act, 1952, jurisdiction of High Court, in such a case, was barred by Article 199 (3) of the Constitution and the provisions of Article 199 (3) shall not apply to any law relating to members of Armed Forces. However, where order/judgment, is mala fide or without jurisdiCtion or coram non judice, High Court under the provisions of Art. 199 (3) of the Constitution can examine the same. This principle was further adopted in case of Cap. Syed Jamil Ali Shah reported as (2004 Pak. Crl.L.J. 560), wherein, it is held as under:- "Having thus, gone through the record, I find that verdict and proceedings and ultimate conviction and sentence are neither without jurisdiction or coram non judice nor do they suffer from any mala fide either in fact or in law."
12. For the foregoing reasons and following the dictum laid down in the cases (supra), this petition being devoid of merit, is dismissed.