Syed Shah Sarwar Haider, an Ex-Inspector (US-1825), Airport Security Force, was tried by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, and was convicted and sentenced and assailed the same in an appeal forwarded by him, under Section 133(B) of the Pakistan Army Act, to the Registrar, Court of Appeals, GHQ, which is alleged to have been marked before the GHQ, Court of Appeals, for hearing and through this Constitutional petition, the petitioner is seeking a direction to the Authorities of the Airport Security Force, to forward the record of the original Court Martial proceedings, conducted by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, to the ,Court of Appeals, GHQ, Rawalpindi.
2. The .case of the petitioner is that his appeal against his conviction and sentence is competent before the Registrar, court of Appeals, GHQ, under Section 133(B) of the Pakistan Army Act and the GHQ Court of Appeals is competent to hear the appeal and the Appellate Authority, constituted under the Airports Security Force Act, 1975, is not competent to hear or decide any such appeal as every officer and member of the Airport Security Force is subject to Pakistan Army Act (XXXIX of 1952). The Department of Judge Advocate General, GHQ, Rawalpindi, in its written statement has supported the stand being, taken by the writ petitioner. The Airport Security Force/Respondents 1 and 2 as well as the Ministry of Defence. Government of Pakistan, represented by the Federal Counsel, on the other hand, have opposed this petition on the ground that the appeal against .such a conviction and sentence is competent only before the Appellate Authority, constituted under the Airports Security Force Act, 1975 and the Court of Appeals, GHQ, constituted under Section 133th) of the Pakistan Army Act, 1952, is not competent to hear any such appeal, therefore, the Airports Security Force Authorities are not under any obligation to forward the record in original of Court Martial proceedings, conducted by the Summary Court Martial, constituted under the Airports Security Force Act, 1975.
3. I have heard the learned counsel for the petitioner, the learned Federal Counsel, representing the Respondents 1, 2 and 4 and have also heard the Assistant Judge Advocate General, representing Respondent No, 3/Judge Advocate General, GHQ, Rawalpindi, and have also seen the written reports and comments furnished by the respondents.
4. The relevant facts are that the petitioner was transferred from.
Lahore to Karachi Airport on 23.12.1996, the transfer order was held in abeyance until 15.4.1997, on his own request, and he was granted leave for 45 days, on expiry of the said leave, he- failed to rejoin his duties and instead sent an application alongwith a medical certificate for extension of leave, he was advised in turn to appear before the Chief Security Officer for the grant of leave but the petitioner kept on sending medical certificates which were referred to the Services Hospital, .Lahore, for verification, which reported that two certificates purported to have been issued by the Services Hospital, Lahore, were bogus, the petitioner was declared deserter and on 19.5.1998 he was arrested after the absence of 408 days and following the procedure as laid down in the Airports Security Force Act, 1975, and the relevant rules framed thereunder, he was charge-sheeted, and was tried by Summary Court Martial on 25.5.1998, which sentenced him to 6 months R.I. and dismissal from service. On his mercypetition/review petition, the Force Commander remitted the un-expired portion of his sentence of rigorous imprisonment and his sentence of dismissal from service was kept in tact. The petitioner also sent two appeals to the Appellate Authority, on the departmental side, for his reinstatement into service, which were also rejected. The petitioner has challenged his conviction and sentence awarded to him by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, before the Courts of Appeal, GHQ, constituted under the Pakistan Army Act, 1952, and through this petition, as mentioned above, a prayer has been made for the issuance of direction to the Authorities under the Airports Security Force Act, 1975, for forwarding the record, in original, of the proceeding of the Summary Court Martial, which was constituted and held proceedings under the Airports Security Force Act, 1975.
5. It is submitted by the learned counsel for the petitioner that under Section 7-A of the Airports Security Force Act, 1975, the petitioner is subject to the Pakistan Army Act, 1952, and, therefore, he can competently challenge his conviction and sentence awarded by the Summary Court Martial, constituted under the Pakistan Army Act, 1952 and such a Court of Appeal is competent to hear the appeal and decide the same and is empowered under the law to modify, change or annul the sentences awarded by such a Summary Court Martial, constituted under the Airports Security Force Act, 1975, and as such the Authorities of the Airport Security Force are bound to forward the record of the case to the Courts of Appeal at the GHQ, Rawalpindi. Advancing upon the arguments of the learned counsel for the petitioner, the Assistant Judge Advocate General, GHQ, Rawalpindi, has argued that the remedy of appeal provided under Section 133-B of the Pakistan Army Act, 1952, as added through the Pakistan Army (Amendment) Act, 1992, under the directions issued by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in Pakistan Through Secretary, Ministry of Defence v. The General Public (PLD 1989 S.C. 6), is the proper remedy of appeal, whereas no such proper remedy of appeal is provided in the Airports Security Force Act, 1975 or the rules framed thereunder and the reference in this regard is made to Rule 13(3) of the Airports Security Force (Discipline) Rules, 1977, which provides that an appeal may be withheld by the competent Authority and sub-rule (5) of the same Rules provides that no appeal shall lie against an order passed by the competent Authority for withholding of the appeal and it is argued that an appeal which can be withheld by the competent Authority, for any reason, cannot be considered as a proper appellate remedy and no such provision of withholding of appeal exists in the Pakistan Army Act; 1952 or the rules framed thereunder. It is submitted next that the remedy of appeal provided in Airports Security Force Act, 1975, is merely an eye-wash, no independent forum is provided to hear the appeals, the Force Commander is all in all, who is Head of the Department and the Appellate Forum is under the control of the Force Commander and is not empowered to act independently or impartially. The learned Federal Counsel representing the Ministry of Defence and the Airports Security Force has opposed the contentions and has referred to the provisions of Section 7-A of the Airports Security Force Act, 1975, and the opinion given by the Ministry of Defence (Defence Division), Government of Pakistan, on the subject, on the basis of the ruling given by the Law, Justice and Human Rights Division. It has also been submitted that the Appellate Forum, as provided in the Airports Security Force Act, 1975, is an independent forum and is not under the influence of the Force Commander and in regard to the provision of the withholding of the appeal, as provided in 'Rule 13(3) of the Airports Security Force (Discipline) Rules, 1977-, it has been undertaken that if any such appeal is filed by the petitioner, challenging the orders of his conviction and sentence as awarded to him by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, the same shall be decided on merits and it will not be withheld and hearing shall, also be granted to the petitioner personally or through his counsel as is desired.
6. The plain reading of Section 7-A and 7-F of the Airports Security Force Act, 1975 and Rules 7, 8, 10, 11 and 13 of the Airports Security Force (Discipline) Rules, 1977 shows that the' officers or members of the Airport Security Force (not being members of the Armed forces of Pakistan) are to be dealt with in accordance with the procedure prescribed under the Pakistan Army Act, 1952 and sub-section
(1) of Section 7-A of the Airports Security Force Act, 1975 does not mean that the members and officers of the Airports Security Force, who are not members of the Armed Forces of Pakistan, are to be dealt with by the Authorities, constituted under the Pakistan Army Act, 1952. Sub-Section (2) of Section 7-A of the above Act gives a power to the Force Commander to convene a General Court Marshal and under sub-section (4) of the same section no other Authority. Tribunal or Court, except the Authorities specified in sub-sections (1) and (2), shall have jurisdiction to vary modify, alter, annul, set-aside, revise or review any order passed by any officer of the Force, which clearly shows that the Court of Appeal, constituted under the Pakistan Army Act, 1952, has no power or authority to look into the legality of the sentence passed by the Court Martial, constituted under the Airports Security Force Act, 1975:Similarly Section 7-F of the above Act provides that a person aggrieved of a case decided by the Deputy Director, a Chief Security Officer or any other officer may, within 30 days of the order, appeal to the officer other than the one who awarded the punishment and if the impugned order has been passed by the Force Commander, of awarding any punishment, the same may be assailed through a revision before the Federal Government Rule 13 of the Airports Security Force (Discipline) Rules, 1977, provides the remedy of an appeal to a person who is aggrieved by an order made in pursuance of the findings of the Summary Court or the officer holding departmental proceedings, within 30 days of the receipt of the said order, to the Force Commander, if the order is made by an officer below the rank of Force Commander, to the Director General if the order is made by the `Force Commander and to the Federal Government if the order is made by the Director General and Rule 14 of the above Rules provides that the Appellate Authority may call for any information or document required for the . disposal of an appeal.
7. The above mentioned shows that the petitioner's appeal before the Court of Appeal, constituted under the Pakistan Army Act, 1952 is incompetent and the said Court has no- lawful authority to sit in Judgment over an order passed by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, consequently the authorities of the Airport Security Force cannot . be directed to forward the record of the Summary Court Martial proceedings conducted by the Court Martial, constituted under the Airports Security Force Act, 1975, in the case of the petitioner.
8. In view of the above mentioned, this writ petition has no merit and is accordingly disposed of, with the observations that the petitioner may, if he so desires, challenge his conviction and sentence, awarded to him by the Summary Court Martial, constituted under the Airports Security Force Act, 1975, before the Appellate Authority, in a properly constituted appeal in accordance with the provisions of the Airports Security Force Act, 1975 and the Rules framed thereunder and in such a case, the petitioner shall be granted by the said Appellate Authority, a personal hearing or a hearing to his counsel or to both and the same shall be decided .on merits. in accordance with law and as undertaken, the petitioner's appeal shall not be Withheld in accordance with sub-rule (3) of Rule 13 of the Airports Security Force (Discipline) Rules, 1977 and, under the circumstances, a sympathetic consideration shall be given by the Appellate Authority to the issue of limitation which is likely to crop up in the petitioner's appeal. There are, however, no orders as to costs.