' SAGHEER AHMED QADRI, J.--- Petitioner Ex-Sepoy No,2849519 Muhammad Idrees son of Rajwal has moved this constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973 mentioning the facts that while serving as Mechanical Transport Driver in 2 Northern Light Infantry Regiment he was tried by Summary Court Martial (SCM) on 30-5-2008 on the two charges i,e, under sections 55 and 34 of Pakistan Army Act allegedly to neglect to the prejudice of good order and military discipline and neglect to obey regimental orders as he allegedly on 26 May, 2008 was found in unauthorized possession of one SMG Chinese, 6 mags and 328 rounds which he allegedly brought from the operational area Spinkai Village. It was agitated that during the proceedings of Summary Court Martial it was shown that petitioner proceeded on plea of guilty and he was awarded three months' R.I. Coupled with dismissal from the service; that petitioner availed his right of appeal before the Court constituted under the Army Act and his appeal was also dismissed on 5-1-2009, which was conveyed to him by the Acting Registrar of the Court of Appeal vide letter dated 13-1-2009 (Annexure-P); that trial conducted as Summary Court Martial was in violation of the mandatory provisions under the Army Act and Rules provided thereunder; that petitioner was not provided facility to have an access to an Advocate to defend himself in violation of Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 as the petitioner could not consult an Advocate or with some legal expert, therefore, trial conducted was nullity in the eye of law; that petitioner because of his lack of understanding of law and trial procedure was greatly handicapped in putting his defence; that the appointment of officer as friend of accused during his trial by the Summary Court Martial was just a formality; that the conviction and sentence recorded by the Supreme Court Martial and sentence subsequently uphold by the Court of appeal be declared as illegal and of no effect upon the rights of the petitioner.
2. This petition was resisted by the respondent Federal Government and parawise comments on the writ petition were submitted wherein it was agitated that this writ petition was not maintainable in view of Article 199(3) read with Article 8(3) of the Constitution of Islamic Republic of Pakistan; that ouster of the jurisdiction is complete and Hon'ble Superior Courts time and again has reaffirmed that jurisdiction of this Court in respect of the persons subject to the Pakistan Army Act is completely ousted; that the petitioner being the subject of Army Act was tried under the dual charge as mentioned in the writ petition by the Summary Court Martial and he preferred an appeal before a Court of appeal; that this petition in view of section 133 of P.A.A. Read with sections 133(B) and 133-B(3) is not maintainable as there is a complete bar imposed to challenge any of such findings before any forum; that this writ petition was not maintainable, same be dismissed.
3. Learned counsel for the petitioner argued that the proceedings conducted before the SCM were illegal, without any lawful justification as no procedure as provided under the P.A.A. Was followed.
Learned counsel re-agitated his grounds of appeal submitted before the Court of Appeal. It was agitated that the provisions of Rule 13(6) of P.A.A. Rules, 1954 were violated while during the trial before the Summary Court Martial (SCM); that first charge clearly disclosed an offence under section 9 read with section 13(e) of the Pakistan Arms Ordinance, 1965 and the civil offences cannot be charged as a military offence and thus it was clear violation of section 55 of the Army Act; that recording of the summary of evidence was not in accordance with the provisions of law as provided under the Army Act; that the charge was shown framed on 29-5-2008 whereas trial proceedings were shown conducted on 30th of May, 2008 which shows mala fide on the part of the Presiding Officer; that if the starting point of the proceedings of SCM and its conclusion is seen it shows within 15 minutes, which is not possible if the procedure for convening of the Summary Court Martial is seen in such a short time, it seems that all the proceedings were just an eyewash. The petitioner was not allowed to participate in the proceedings and he was just declared guilty without procedure observing provided under the relevant law; that Court of appeal did not take into consideration these aspects and dismissed the appeal. Prayed that the conviction upheld by the Court of appeal be set aside and it be declared without lawful authority and ineffective upon the rights of the petitioner
4. I have considered the arguments of learned counsel for the parties and perused the record.
5. Admittedly, petitioner was employed as Sepoy in Pakistan Army and under section 2(b)(a) subject of Pakistan Army Act, 1952. According to the facts as narrated in the writ petition, the petitioner was charged sheeted under the allegation that on 26-5-2008 while posted at Kaur Fort he was found in unauthorized possession of unlawful arms and ammunition which he allegedly brought from the operational area, Spinkai Village thus he neglected to obey the regimental order dated 17-4-2008, which required that any confiscated item would not be taken along with by any one from the operational area.
6. Summary of evidence was recorded. According to the record annexed with the writ petition four witnesses were examined namely Havildar Sher Ali son of Muhammad Ali first witness, Major Naz Asghar son of Lieutenant Colonel (Retired) Muhammad Asghar second witness, Subedar Muhammad Khan third witness and Naib Subedar Sher Ahmed as fourth witness. They all in their statements deposed that on 26-5-2008 on 'performing their routine duty on inspection of a vehicle under his charge petitioner was found in possession of a Sub Machine Gun, six magazines and three hundred twenty eight rounds and he was accordingly charge-sheeted. All witnesses stated that petitioner admitted that he brought the above-mentioned arms and ammunition from the operational area.
7. Petitioner was also examined, during recording of summary of evidence he stated as under:-- 'Statement of accused: Number 2849519 Sepay Muhammad. Idrees son of Rajwal, Religion Islam, Sec Sunni, Resident of Village Nayat, Post Office Chilas, Tehsil Chilas, District Diamer after having been duly sworn states ' On 14th May, 2008 when I was performing the duties of Military Transport driver, I went to offer prayers on the roof of a house in spinkai and found two bags. In one bag there was a Sub Machine Gun body number 187896 and the other was filled with rounds and magazines, I did not count the rounds and put those in my vehicle. I brought the weapon, magazine and ammunition from Spinkai to Kaur Fort and kept in my vehicle. On 26th May, 2008 at about 2000 hours, 2nd In Command Pakistan Army---28890 Major Naz Asghar, Acting Subedar Major Subedar Pakistan Junior Commissioned Officer Number 141228 Subedar Muhammad Khan, along with other Junior Commissioned Officers and Regimental Police staff inspected the vehicles in Military Transport Park during which Sub Machine Gun body number 187876, magazines and rounds were found from vehicle on my charge broad arrow number 869955 2.5 ton.
' Questioned by the officer taking summary of evidence.
Question - 1 ' Is vehicle broad arrow number 2.5 Ton on your charge?
Answer - 1 ' Yes, Vehicle broad arrow number 869955 2.5 Ton is on my charge. Question - 2 ' Since when you are the driver in charge of 2.5 Ton broad arrow number 869955.
Answer - 2 ' Since 24th March, 2008 I am driver in charge of 2.5 Ton broad arrow number 869955.
Question - 3 ' Were the standing order procedures regarding confiscated and contraband items passed to you by Military Transport Havildar?
Answer - 3 ' Yes, I was informed regarding all standing order procedures. Question - 4 ' When did you place the Sub Machine Gun body number 187876, magazines and rounds in the vehicle?
Answer - 4 ' On night 1420 hours at Spinkai village while the company quarter master store and luggage of Alpha company was loaded in the vehicle after inspection. Question - 5 ' From where did you get the Sub Machine Gun body number 187876, magazines and rounds.
Answer - 5 ' I found two bags on the roof top of the Military Transport Staff living in Spinkai.
Question - 6 ' Were you not afraid of the dire consequences of this act?
Answer - 6 ' Yes, I was aware but temptation compelled me to do this. Question - 7 ' Is any body involved with you in this transportation and theft of Sub Machine Gun body number 187876?
Answer - 7 ' No, I have committed this crime at my own accord. Question - 8 ' Where did you want to take this Sub Machine Gun body number 187876?
Answer - 8 ' I wanted to take this Sub Machine Gun body number 1876876 to my home.
' (Signature of Commissioned Officer as a witness to recording of voluntary statement)
(Sd.) (Pakistan Army-43329 Lieutenant Muhammad Yahya)
' Certified that provisions of PAA Rule 13(4), (5), (6) and (7) have been complied with.
' This summary of evidence has been taken by me at Kaur Fort (Tank) in the presence and hearing of the accused on 28 May, 2008.
' (Sd.) Major Officer Taking the Summary of Evidence (Abdul Wadood)"
8. Petitioner was charge-sheeted. He pleaded guilty and was convicted and sentenced as mentioned earlier. Summary Court Martial proceedings have been annexed with the writ petition which show that all the procedural formalities starting from the recording of summary of evidence, charge-sheet, convening of Court, arraignment of the accused till his pleading guilty were completed as required under Pakistan Army Act Rules, 1954. As petitioner pleaded guilty, therefore, he was convicted accordingly.
9. Petitioner availed the opportunity of hearing before the Court of appeal through his learned counsel as provided under section 133(B) of Pakistan Army Act, 1952. Petitioner himself in para.4 of the writ petition specifically mentioned as under:- "The learned Court of Appeals presided over by Judge Court of Appeals Brigadier Muhammad Afzal Shaheen heard the Appeal of the petitioner at Headquarter Rawalpindi Logistic Area on 10-7-2008, 10-8-2008, 28-11-2008 and 30-12-2008 and at Headquarter 6 Armoured Division on 30-8-2008. The letters of Registrar Courts of Appeal letters are Annex "G" to "M". The "MT Park lay out of 2 NLI at Kaur Fort, produced by Major Niaz Asghar on 30-8-2008 is Annex "N". The "Address", made by the Counsel of the petitioner before the Court of Appeals is Annex "0".
10. If the above assertions of the learned counsel for the petitioner and the contents of Para 4 of the writ petition are seen, admittedly, petitioner being subject of Pakistan Army Act, 1952 was tried by the Tribunal i,e, Summary Court Martial, which according to Law on the subject had the jurisdiction to charge and try the petitioner/convict.
11. As the learned Standing Counsel appearing on behalf of Federal / respondent raised the question of maintainability of this petition on the ground that under Article 8(3)(a) read with Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 the impugned order and conviction cannot be challenged on the basis of ouster of jurisdiction of this Court.
12. In famous judgment cited as PLD 1996 SC 632 (Mrs. Shahida Zahir Abbasi and 4 others v.
President of Pakistan and others) their lordships of Hon'ble Supreme Court of Pakistan at page 652 held as under:- "It is quite clear from the above-quoted passage that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature. At least in respect of three categories of cases, namely, where the impugned action is mala fide, or without jurisdiction or coram non judice the bar of Article 199(3) is not applicable."
' In the above cited judgment their lordships of the Hon'ble apex Court while discussing the different aspects of the Military Laws observed as under: -- "I may add that, as observed by Halsbury on page 825, the Courts Martial are parts of the ordinary law of the land, and must not be confused with Martial Law Courts which are brought into existence on suspension of the ordinary law. Any criticism or misgivings attaching to the functioning of Military Courts under Martial Law cannot be imported into a consideration of the fairness of trial held by Courts Martial established under the relevant Acts for the ' Army, Navy and Air Force. These Courts Martial are intended to Court and after going through the same, I am of the view that the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case. I may also add here, that unlike the previous position when no appeal was provided against the conviction and sentence awarded by a Military Court, the Act now provides an appeal against the conviction and sentence awarded by a Military Court before an appellate forum."
13. In the case in hand as already mentioned the Summary Court Martial was convened in accordance with the provisions of Pakistan Army Act, 1952, the procedure provided under the relevant law was followed and subsequently petitioner was found guilty and was convicted. He admittedly preferred an appeal before the Court of Appeal provided under section 133(B) of Pakistan Army Act, 1952, wherein according to the learned counsel for the petitioner who now is representing him he was afforded full opportunity of hearirig and detail of which is given in para 4 of the writ petition and ultimately appeal was dismissed.
14. In the above circumstances, wherein no jurisdictional error could be pointed out by the learned counsel for the petitioner and he raised only controversial questions of facts, which cannot be looked into in this limited extraordinary writ jurisdiction, therefore, in the light of above discussion this writ petition being not maintainable is hereby dismissed accordingly.