The petitioner, who was an Army officer, has challenged his conviction and sentence of 2 years RI, and also his dismissal from the service. The petitioner was tried by Field General Court-Martial (F G.C.M). His trial was terminated on 12.6.2001, the promulgation was made on 22.9.2001.
2. He .has challenged the impugned order on ground of mala fide. The background is given in detail in the writ petition.
3. The learned counsel appearing for the petitioner contends that where statutory functionaries act malafidely or in a - partial and unjust manner, the High Court in exercise of writ jurisdiction can take judicial notice and thereby can also grant relief to an aggrieved person. For the above reasons, the learned counsel for the petitioner prays that the trial by F.G.C.M. of the petitioner be declared to be mala fide, illegal, ab initio void and of no legal effect. The learned counsel has relied upon Brig. F.B. Ali's case, PLD 1975 SC 506. According to him in this judgment it has been held that if impugned action is without jurisdiction and bonafide then the bar of Article 199(3) of the Constitution shall not be operative. It may be noted that in the Brig F.B. Ali's case the said officers were booked under Section 121-A of, the PPC to be, read with Section 2(1)(d) of the Pakistan Army Act, Whereas in the instant case the petitioner was charged under Section 34 of Pakistan Army Act, neglect to obey standing orders, under Section 41, PAA. malingering, under Section 36(1) PAA; desertion from service, under Section ,55 PAA; prejudice to good order and military discipline, again under Section 55 PAA, conduct to the prejudice of good order and military discipline, under Section 52 PAA behaving in a manner unbecoming of an officer and the character expected from an officer, therefore,. the case of Brig. F.B. Ali is distinguished from the case of the present petitioner.
Moreover, in Brig. F.B, Ali's case the Supreme Court has held that it seems quite settled that if the Court-Martial has tried a particular case with jurisdiction, then the ordinary Courts of Superior jurisdiction well not interfere in exercise of their power .of judicial review merely on the ground that some rule of procedure has not been followed. The learned counsel for the petitioner also referred Saboor Rehman vs. Government of Sindh, PLD 1996 SC 801. I am afraid this judgment does not support the contention of the learned counsel for the petitioner rather it goes against him. In fact the decision of the High Court was upheld and the appeal was dismissed by the Hon'ble Supreme Court in Saboor Rehman's case (Majority View). The High Court had held that the impugned order was passed on evidence and for the same, High Court had refused to interfere. The Supreme Court further held "there is no doubt that in some of the cases it has been held that if a finding is based on no evidence, it will be a case of without jurisdiction, but the basic question is, as to whether the High Court in exercise of its Constitutional jurisdiction or this Court while hearing an appeal arising out of refusal of the High Court to set aside conviction can take upon itself the role of an appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible."
4. The learned counsel further contended that Section 133 of the Pakistan Army Act and Article 199(3) of the Constitution do not provide absolute bar to the jurisdiction of the High Court under Article 199(3). In this context he has referred to Shaheda Zaheer Abbasi's case PLD 1996 SC 632. On basic proposition referred to by the learned counsel, I have no disagreement with him but every case has to be decided on its own facts and circumstances. The above judgment is not applicable in this case. Lastly, the learned counsel has referred Federation of Pakistan vs. Khurshid Ahmad, 1999 SCM R 664. I am afraid this judgment is also distinguishable from the facts and circumstances of the case in hand. In the said reported judgment the respondent Khurshid Ahmad as a civilian working in the office of Judge. Advocate-General, whereas, in the instant case the petitioner at the relevant time was a serving officer.
5. The learned Deputy Attorney General Ch. Muhammad Tariq, appearing on behalf of the respondent has contended that Article 199(3) of the Constitution and Section 133 of PAA bar jurisdiction of this Court in matter in hand. He further contended that this Court must decide question of jurisdiction before touching the merits of the petition.
6. I have already rendered my own observation on the judgments referred to and relied upon by the learned counsel for the petitioner in the preceding paras 3 & 4. The learned counsel for the petitioner tried to convince the Court, on the strength of judgments he referred to above, that question of jurisdiction do no come in his way. I do not agree with the learned counsel for the petitioner as I have already dilated upon in my effort to demonstrate that the facts were different in cases cited by the learned counsel for the petitioner, therefore, the said reports do not advance his case on point of jurisdiction also. The learned Deputy Attorney General has referred Capt. Syed Jamil Ali Shah vs. Federal of Pakistan, 2004 P.Cr.L.J. 560. According to the said judgment, Court- Martial is part of ordinary law of land are not to be confused with Martial. Courts, which are brought into existence on suspension of ordinary law. Such Courts are established institutions with well known procedure which cannot be described arbitrary, perverse or lacking in fairness in any manner.
7. The learned Deputy Attorney General has also referred to Federal Government, Ministry of Defence vs. Sepoy Liaqat Ali wherein competence of the Field General Court Martial was upheld.
Para-8 of the judgment is reproduced as under:-- "As regards competence and jurisdiction of the Field General Court Martial, similar situation arose in Jail Petition No, 103 of 1995 in the case of Muhammad Afzal v. The State and this Court in terms of a detailed order dated 14.10.1996 had declared that Field General Court Martial had competently and justifiably convicted Muhammad Afzal petitioner therein. Undoubtedly, respondent Sepoy Liaqat Ali at the relevant time was on duty in his Unit., and as member of the Armed Forces of Pakistan was completely amenable to Pakistan Army Act. Furthermore, clause (3) of Article 199 of the Constitution was quite clearly attracted, and thus, jurisdiction of the High Court was barred With regard to the conviction 'recorded and sentence awarded by the Field General Court Martial."
8. In the instant petition, the petitioner was also a serving officer of the Pakistan Army when the alleged offences were committed by him. Therefore, he was fully amenable to the Pakistan Army Act. Apparently the record does not show that the required procedure was not followed in his trial.
Therefore, I am convicted, that 2004 SCM R 1676 is fully applicable in this case and this Court is bound to follow the above judgment in view of provisions of Article 190 of the Constitution.
9. Besides, in the present controversy/point of jurisdiction, provisions of Article 199(5) are relevant to mention which have not been touched by the learned Deputy Attorney General as well as learned counsel for the petitioner. The Constitutional/Writ jurisdiction can be exercised against a "person"
Article 199(5) of the Constitution excludes from the definition of "person" the Supreme Court, a High Court and a Court established under the law relating to the Armed forces. The petitioner was convicted by a Court i,e, Field General Court Martial established under Pakistan Army Act, hence, the said Court is not covered by expression person" in view of the provisions of Article 199(5) of the Constitution, hence jurisdiction is barred.
10. In view of my findings expressed above, this writ petition is dismissed.