The admitted facts of this case (with reference to the contents of the writ petition and the reply filed by the respondents) are that the petitioner was serving as a Junior Technician in the Pakistan Air Force when he was accused of murder of one Zawar Hussain vide case FIR No, 257 dated 27.9.1998 at P.S. Saddar, Chakwal. He was sent up for trial. Learned Sessions Judge, Chakwal, vide judgment dated 29.11.1999 convicted him and sentenced him to death. With reference to the said conviction and sentence, the petitioner was dismissed from service vide order dated 23.6.2000 (Annex-A). He filed Criminal Appeal No, 295/99 in this Court which was allowed by a learned Division. Bench on 28.7.2003 and he was acquitted. A departmental inquiry was also instituted and the Inquiry Officer concluded vide report dated 31.10.1998 (Annex-C) that the appellant has been falsely implicated in the said murder case. The grievance being made out is that in the afore- noted admitted circumstances, the respondents have refused to reinstate the petitioner in service vide order dated 31.10.2003.
2. This case was directed to be fixed for hearing on the request of the petitioner vide order dated 18.4.2008 in C.M. No, 288/08. No one has turned up for the petitioner. However, having examined this file, I am not inclined to dismiss this case for non-prosecution. I have accordingly heard the learned Federal Counsel for the respondents.
3. The reasons stated by the respondents for not reinstating the petitioner despite the said admitted facts of the case are that according to the Air Headquarters Policy whenever a PAF person remains locked up for more than six months in civil prison he is dismissed from service and is not re-instated in the service even if he is subsequently acquitted by the Court, as such re- instatement is considered a detriment to the security and discipline of the service.
4. On the other hand, I find a Policy letter dated 13.12.1992 issued by the Air Headquarters, Chaldala (Annex-H) on record. In this letter general principles have been laid down for the guidelines of the Commanders in such like matters. The issuance of the said letter has not been denied and I also find that this Court in its judgment dated 10.5.2004 in W.P. No, 2808/2000 (Raja Muhammad Ishaque Qamar v. Chief of Air Staff; Pakistan Air Force, Chaklala) considered the same and passed orders accordingly. I also find that in ground-xiv of the grounds narrated in the writ petition, reference has also been made to the said Policy letter and the judgment. I have examined the said Policy letter and I find that the case of the petitioner falls under para-3(c) of the same. The relevant directives issued by the Air Headquarters are laid down in Para-4 (c) of the said letter, which are reproduced hereunder for facility of reference:-- "(c) In cases falling in category 3(c) above if, the man is convicted, he will have to be administratively dismissed/removed/discharged from service depending upon the nature of offence and the sentence awarded. If, however, the man has been acquitted, his retention or termination should be considered in the light of the following:--
(i) The nature of the offence;
(ii) whether the man has been honourably acquitted or was given benefit of doubt;
(iii) the time spent by the individual in the civil custody;
(iv) his past service record; and
(v) his future utility in the service."
5. The reasons for denying the request of the petitioner for reinstatement have already been stated above.
6. To my mind while passing the said order of refusal, the records were not at all examined by the concerned Authority. Had the judgment of acquittal been examined, the said observations could not have been made. Copy of the judgment dated 18.7.2003 is on record as Annex-B. The case of the petitioner was discussed at pages 18 and 19 of the said judgment as follows:-- "As regards Intisar Hussain-appellant, it may be seen that he had no previous enmity with the deceased. There is no evidence of his having indulged into conspiracy with his co-accused. He came to the venue of occurrence, started performing his duty as such for a sufficient long time and it was much after that Muhammad Ali-appellant arrived at the spot from side of village Marri.
Intisar Hussain-appellant had absolutely no knowledge that Muhammad Ali-appellant was retaining in his possession a pistol, which was lying concealed in his Dub. Immediately on his arrival, he asked the deceased to alight from his tractor and resorted to firing to teach him a lesson, for the previous insults. Exhorting of lalkara at that stage by Intisar Hussain-appellant is open to severe criticism. This accusation does not appear to be real or legitimate. There was absolutely no reason for him to act as an incitor to incite his co-accused to launch an attack upon the deceased' and till then he did not know that the incitee had a weapon with him. Muhammad Ali-appellant for his own personal motive launched an attack and fired at the deceased."
7. In view of the considered finding of the learned Division Bench of this Court that the accusation against the petitioner was neither real nor legitimate and was open to severe criticism can lead only to one conclusion that the ultimate acquitted was honourable.
8. There is not even a slightest allegation in the matter of performance of his duties by the petitioner or otherwise as to his character generally.
9. At this stage, learned Federal Counsel objects that this Court would not be having the jurisdiction to issue a writ in view of the provisions of Article .199(3) of the Constitution. I have given some thought to the said contention of the learned Federal Counsel. However, as noted By me above, the impugned order dated 31.10.2003 refusing to reinstate the is coram non-judice inasmuch as the said order does not at all disclose that the matter was considered by the concerned Authority in accordance with the said directives. As noted by me above, prima facie, that the case of the petitioner requires consideration on the said guidelines which has not been done. Needless to state that it has been the consistent view of the Hon'ble Supreme Court of Pakistan that jurisdiction of Courts under the said Constitutional provision can never be taken away and is always available in case of acts, proceedings or orders which, inter alia, are coram non-judice.
10. For all that has been discussed above, the writ petition is allowed. The impugned order dated 31.10.2003 (Annex-E) is set aside being without lawful authority and void. The result would be that the appeal/representation (Annex-F) shall be deemed to be- pending. The same shall be considered by the competent Authority strictly in accordance with the provisions of the policy letter dated 13.12.1992 (Annex-H) after examining the concerned records more particularly the judgment of acquittal passed by this Court in Criminal Appeal No, 295/99 on 28.7.2003 (Annex-B). Thereafter, in case the competent Authority comes to the conclusion that the petitioner is entitled to be reinstated orders will be passed accordingly with all due benefits. In case the competent Authority comes to the conclusion that he cannot be reinstated, for reasons to be recorded in writing, then an order for administrative discharge of the petitioner shall be passed with all due benefits. The needful to be done within eight weeks of this judgment, a copy whereof shall be remitted to the respondents by the office immediately. No orders as to costs.