' MAULVI ANWARUL HAQ, J.--- The petitioner while serving in the Pak. Army was tried by a Field General Court Martial was convicted and dismissed from service on 22-9-2001. The grievance being made out is that the petitioner was placed under suspension and then in custody on 10-12- 2000 and was not paid his emoluments in view of the provisions of section 65(10)(b) of the Pakistan Army Act, 1952.
2. Learned counsel for the petitioner contends that since his client was placed under custody and not allowed to serve and do his job. The said provision of law providing forfeiture of his pay and allowance for every day he remained in custody are against Injunctions of Islam and on the basis of the authority of the judgment of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 he is entitled to be paid the said emoluments. Learned Standing Counsel for Pakistan while not being in a position to oppose the said contention vehemently argues that since the petitioner was subject to the Pakistan Army Act, 1952 and since the said provision specifically has not been adjudged to be void, the petitioner would not be entitled to the relief. Also presses into service Article 199(3) of the Constitution.
3. I have given some thought to the respective contentions of the parties. There is no denial that the petitioner was placed under custody as also suspension and as such was restrained from doing his job. In the leading opinion of the said Honourable Bench delivered by Mr. Justice Maulana Muhammad Taqi Usmani, it was observed as follows at page 78 of the report:--- "In the instant case a Government servant under suspension is not allowed to go on leave, nor is he allowed to leave the station of service, nor is he given an opportunity to serve anywhere else which means that he has been detained for the Government like any other servant but at the same time he is denied his full salary and other benefits. This unjust treatment itself certainly falls under the "Tatfif" prohibited by the Holy Qur'an in the verse quoted above and is, therefore, repugnant to the Injunctions of Islam."
' In the case before me, not only was the petitioner allowed to leave the station of service or to go on leave nor was he given an opportunity to serve anywhere else. He was, in tact, placed under custody. The said dictum, therefore, is squarely applicable to the admitted facts of this case.
4. Coming to the contentions of the learned Standing Counsel, the learned Federal Shariat Court of Pakistan and the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan were established under Chapter-3A of the Constitution. Article 203-A lays down that the provisions of the Chapter shall have effect notwithstanding anything contained in the Constitution which includes Article 199 and, of course Sub-Article (3) thereof. The petitioner before me seeks benefit of the declaration made by the said Honourable Bench in terms of Article 203-F of the Constitution read with Article 203-D thereof. The writ petition accordingly is allowed and the respondents are directed to pay the emoluments to the petitioner the pay and allowances for the period 1-12-2000 to 31-5-2001 and 1-7-2001 to 21-9-2001. No orders as to costs.