Mohammad Moosa K. Leghari, J.--Instant appeal by leave of this Court is directed against the judgment passed by learned High Court of Balochistan, Quetta whereby Constitution Petition filed by the appellant was dismissed.
2. Briefly stated facts of the case are that the appellant was inducted in service in the year 1982, having been recruited through F.P.S.C. According to the appellant, letter of his appointment specifically provided that in the matters of discipline he was to be governed by the normal rules applicable to the civilian gazetted officers of the Defence Services. It appears that being aggrieved of the act of respondent of cancellation of his sanctioned leave, he approached the Federal Service Tribunal for getting the said order declared illegal and void, which annoyed the respondents. It is pleaded that retributively a malafide directive was issued by Respondent No, 3 to Respondent No, 2 for initiating action against the appellant under the Field General Court Martial and he was directed to proceed to Station Headquarter Quetta Cantt on temporary duty (to be tried by FGCM).
3. Being aggrieved of the said action and the orders mentioned above, the appellant seems to have moved High Court of Balochistan by way of Constitution Petition seeking a declaration to the. affect that the orders dated 15.12.2005 and 17.12.2005 issued by the respondents were void ab-initio and without jurisdiction. The said petition was dismissed vide judgment dated 11th April 2006, which has been impugned through this appeal.
4. Vide order dated 02.08.2006 leave was granted inter alia on the following points:- (a)What is the exact import and implication of the provisions as contained in Section 2(1)(c) of the Pakistan Army Act, 1952?
(b)What does the active service mean as defined in Section 8 of the Pakistan Army Act, 1952 and as to whether the petitioner falls within the ambit of active service or otherwise?
(c)What is the significance and import of the notification issued on 3.1.1975 pursuant to the provisions as contemplated in Section 7 of the Pakistan Army Act, 1952?
(d)Whether the judgment impugned is in consonance with the dictum as laid down by this in case Fasihuddin v. Khawar Latif Butt (1993 SCM R 1), Secretary, Ministry of Defence v. Zahoor Ahmed Javed (2005 SCM R 1767), Federation of Pakistan u. Khurshid Ahmed (1999 SCM R 664).
5. The appellant who argued his case in person, mainly contended that he was a civilian officer working in Engineer-in-Chief branch and was not amenable to the provisions of Pakistan Army Act, as such could not be proceeded against under FGCM which is only meant for Army Personnel and not for civilians. The appellant strenuously argued that the provisions of Sections 7 & 8 of the Pakistan Army Act 1952 (hereinafter referred to as "the Act") were not applicable to him.
6. Conversely the above arguments were rebutted on behalf of the respondents, relying upon the judgment in the case of Federation of Pakistan and others Vs. Khurshid Ahmad and others (1999 SCM R 664) which has further been affirmed in the case of Secretary Ministry of Defence and another Vs. Zahoor Ahmad Javed (2005 SCM R 1767).
7. We have carefully considered the arguments advanced before us and have perused the material placed on record, besides examining the judgments referred before us.
8. It is an admitted position that from the date of his appointment, the appellant has been working in Engineer-in-Chief branch and has been attached with the Army. Though the appellant was not a regular member of Armed Forces yet he was serving in an organization attached with the force on active service engaged in military operation. Certainly the appellant is not covered by the definition of "active service" as contained in Section 8(1) of the Army Act. However, Section 7 of the Act by its own force has created yet another category of "active service" in respect of persons who are subject to the Act. Section 7 of the Act reads as under: "7. Power to declare persons to be on active service.--Notwithstanding anything contained in clause (1) of section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active Service within the meaning of this Act.."
The Federal Government issued a notification dated 3.1.1975 under Section 7 of the Act, which read's as follows: "In exercise of the powers conferred by Section 7 of the Pakistan Army Act, 1952 (XXXIX of 1952) and in supersession of this Ministry's Notification No, 4852/325/PSIA/D-2(A)71, 23rd November, 1971, the Federal Government is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act".
The above notification is still holding the field and undoubtedly the appellant is covered by the said notification. The import and implication of all the relevant provisions of the Pakistan Army Act, 1952, and the significance and import of the Notification dated 03.01.1975 come to be considered by this Court in the judgment reported as Federal-ion of Pakistan. Vs. Khurshid Ahmad and others (1999 SCM R 664) and have further been threadbare examined and affirmed by learned Full Bench in the case of Secretary Ministry of Defence and others Vs. Zahoor Ahmad Javed (2005 SCM R 1767). It will be pertinent to reproduce hereunder the relevant portion of paragraph 8 of the judgment delivered in the case of Secretary Ministry of Defence and others (Supra):-- The careful examination of Section 2(1)(c) would convey the meaning that a person not otherwise subject to the Army Act, if is accompanying a portion of Army or a person on active service, would be deemed to be on active service and a persons who is on active service is deemed to be subject to Pakistan Army Act. The result is that the civilian employees in any defence organization which is attached with a force which is on active service while engaged in military operation, would be deemed to be on active service. The interpretation of the expression "subject to this Act" with reference to Section 2(1)(c) will be read in respect of a person who is not otherwise subject to, the Pakistan Army Act when he is attached with a person or persons on active service who are engaged in military operation. The intention was to bring all those persons within the ambit of Pakistan Army Act, who being not otherwise subject to Army Law have directly and indirectly formed part of the force because of their attachment with the persons or class of persons who while engaged in military operations were on active service. The intention and the purpose behind Section 2(1)(c) of the Act in the light of above discussion, was to be collected from the cause and necessity of the enactment of this provision." (emphasis supplied)
9. In the light of above discussion we are of the considered view that the appellant is squarely covered by the definition and expression "Active Service" and is consequently subject to the provisions of Pakistan Army Act for the purpose of FGCM.
10. The judgment passed by High Court of Balochistan is legally valid warranting no interference.
The appeal being without merit is, therefore dismissed with no order as to costs.