This Constitution petition seeks conviction of the petitioner by the Field General Court Martial with the charge under section 71 Pakistan Air Force Act, to be declared as illegal, void and of no legal consequence.
2. The petitioner while his posting as Chief Warrant Officer at PAF Base Sargodha was tried by a Field General Court Martial for the charge under section 71 of the PAF Act and offences under sections 377 and 506, P.P.C, where, after framing of charge and recording of evidence, was found guilty of the charge framed and was convicted to four years' R.I with fine of Rs,10,000 and was dismissed from service. The Base Commander confirmed the verdict of Court Martial and the petitioner was made to serve the sentence on 6-3-2003. The petitioner appealed against his conviction through a time barred appeal before the Chief of the Air Staff. The delay was condoned and remission of six months in the sentence was awarded by the Court of appeal. The petitioner has now filed the instant Constitutional petition with the relief noted above.
3. The learned counsel for the petitioner challenged the conviction of the petitioner with the averments that the charge against him was not properly framed and that the witnesses produced by the prosecution were not competent to depose against the petitioner. On query by the Court regarding maintainability of this Constitutional petition against the conviction by the Field General Court Martial (Military Court) reliance was placed on the judgment reported as Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 Supreme Court 506.
4. I have minutely considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. Undeniably the petitioner was an employee of the Pakistan Air Force and on the day of his apprehension, he was posted as Chief Warrants Officer, thus, was subject of Pakistan Air. Force Act whereunder he was arrested and tried by the Court for trial of offence thereunder and those under sections 377 and 506, P.P.C. Before examining the contentions of the learned counsel for the petitioner which have very little legal worth because improper framing of charge etc. Does not vitiate the trial, the question which hinges for determination taken up for decision, which is, as to is whether a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, can be entertained against the above mentioned conviction in view of the specific provisions relating to ouster of jurisdiction of this Court, contained in Sub-Article (3) of the Article 199 of the Constitution, which 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. In view of the above reproduced Sub-Article and the judgment relied by the learned counsel for the petitioner in the case of Brig. (Retd.) F.B Ali (supra), this Court can intervene only if the judgment is mala fide, without jurisdiction or corum non judice. Besides this question of maintainability of Constitutional petition and invocation of jurisdiction by this . Court, which was graciously determined by the Honourable Supreme Court, on the touch stone of the Sub-Article (3) of the Article 199 of the Constitution and it was mandated that where clauses (3) and (5) of the Article 199 of the Constitution are attracted, the ouster of jurisdiction if any, is absolute and it is not subject to existence of any circumstance, like those, asserted by the petitioner. The law laid down by the Honourable Supreme Court in their esteemed judgment in the case of Ex-Lt.-Col Anwar Aziz v.
Federation of Pakistan through Ministry of Defence Rawalpindi and 2 others PLD 2001 Supreme Court 549 was respectively followed in the case of Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13. The same principle had earlier been laid by the Honourable Supreme Court in the case of Muhammad Mushtaq v. Federation of Pakistan 1994 SCM R 2286 laying that the relief regarding fundamental right is included in Sub-Article (1) of Article 199 which was clearly barred under Sub-Article (3) of the same Article. The question of ouster of jurisdiction of High Court was also examined by the Honourable Supreme Court in the case of Mst. Shahida Zaheer Abbas and 4 others v. President of Pakistan and others (PLD 1996 SC 632) with the same observation as in the case of Muhammad Mushtaq (supra). Alike view was propounded by the two Division Benches of this Court while deciding Writ Petition Nos.66 of 2004, and 966 of 2004 through the judgment dated 22-7-2004. This all, brings me to hold that ouster clause of Article 199(3) of the Constitution is absolute which can only be invoked in the case of mala fide judgment, lack of jurisdiction in the Court announcing the judgment or the decision being corum non judice and in no other circumstance. The judgment impugned, convicting the petitioner suffers from none of these defects, thus the Constitutional jurisdiction cannot be invoked for rescue of the petitioner and thus the same being incompetent is dismissed in limine.