In this Constitutional petition following prayer has been made: "It is, therefore, most respectfully prayed that writ petition may be accepted and Respondents Nos, 1 to 4 may kindly be directed to refrain from requiring the petitioner or her husband to deposit Rs, 2,40,000/- with the Government. They may also be directed to hand over B.Sc Engineering Degree to Rehan Afzal at the earliest."
2. According to the petitioner Mr. Rehan Afzal, her son was admitted to B.Sc Engineering Course at E&ME College, Rawalpindi which was successfully completed. At the time of his selection for the aforesaid course a surety bond was executed by the petitioner and her husband with the Army Authorities on 20th day of May, 1990 obliging the executants/ sureties, the petitioner and her husband, to pay on demand to the President of Pakistan all training charges indicated in Phase-I, II and III of the said surety bond if the trainee resigned during training or within first 13 years of his commissioned service after, completion of the engineering studies. The petitioner submits that her son after completing his studies in the aforesaid Engineering College was sent to Pakistan Military Academy Kakul (PMA) on 11.11.1993 for undergoing military training for one year. However, he was withdrawn from the Academy only about a month before the scheduled passing out parade.
Thereafter the petitioner as well as her husband were required to pay a sum of Rs, 2,40,000/- as a condition precedent for release of B.Sc Engineering Degree of her son.
3. The respondents besides questioning the maintainability of the petition have given their part of the factual position involved in para 2 of their reply which reads as under: The petitioner's son Mr. Rehan Afzal was inducted in the Army as Technical Cadet in May, 1990. He qualified B.Sc Engineering Degree course from the College of Electrical and Mechanical Engineering (E&ME) Rawalpindi at Government's expenses and joined Pakistan Military Academy (PMA) Kakul in November 1993 for one year's military training. He was withdrawn from Pakistan Military Academy on the grounds "negative attitude towards military service, poor self-discipline and weak physical standard". He was reverted back to College of E&ME from where he was released from the service, in April, 2005. The degree of B.Sc Engineering has not been issued to him till clearance of the amount laid down in the bond i,e, Rs, 2,40,000.00, as he himself through negative attitude, created conditions for his expulsion as would be clear from the attached documents."
4. In the remaining paras they have detailed the reasons on the basis of which the son of the petitioner was withdrawn from the academy. These reasons include his failure in Physical Training, Map Reading and Military Law, his attitude problems towards his superiors, physical training, self- discipline etc. It is admitted that the degree of the son of the petitioner has been retained by EME Directorate under para-3 of the aforesaid surety bond. Lastly it is stated that the cadet/son of the petitioner though did not . resign but his deliberate and intentional default/misconduct forced Army to withdraw him on disciplinary grounds.
5. After hearing the learned counsel for the parties at the out set I will reject the preliminary objection against maintainability of this petition on the ground that under Article 199 of the .
Constitution an order in Constitutional jurisdiction cannot be made concerning a person in respect of any action taken in relation to him as member of the Army Forces of Pakistan or as, a person subject to such law. It is correct that as a cadet of Pakistan Military Academy Mr. Rehan Afzal son of the petitioner was subject to Army Laws. However, the matter in issue does not relate to any of his duties as a gentleman cadet. The petition revolves around the denial of a civil liability by the petitioner as a guarantor based upon a bond executed to ensure compensation/reimbursement of official expenses in case the "principal debtor" failed or refused to serve the organisation, in this case Pakistan Army.
6. The nature of rights and liabilities between the guarantor and the President of Pakistan necessarily being civil in nature, any act which is ex-facie, void and illegal on the part of the President or the Military Authorities representing the President can very well be a subject-matter of exercise of Constitutional jurisdiction of this Court. Further it needs to be noted that in C the present petition the petitioner as a guarantor alongwith Respondent No 5 seeks the determination of their rights and liabilities under the aforesaid bond. None of them being members of the Armed Forces and subject to its discipline can very well, approach this Court in case any of the conditions given in Article 199 of the Constitution are otherwise answered.
7. As far the prayer is concerned, I am afraid it cannot be allowed by this Court in exercise of Constitutional jurisdiction for the simple reason that it involves determination of factual controversies between the parties. The rights and liabilities of a "surety", the "principal debtor" or a "creditor" under a contract of guarantee as contemplated in Section 126 of the Contract Act, 1872 can only be a subject-matter of a Court, of original jurisdiction. The 1 facts leading to the withdrawal of the son of the petitioner from Pakistan Military Academy and the reasons which have seriously been contested can only be ruled upon by a Court of Original jurisdiction after recording of evidence. Since that is not possible in the proceedings, I will refuse to entertain this petition. The petitioner, if so advised may approach a Court of original jurisdiction for redressal of her grievance.
8. Petition 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.