' SYED HASAN AZHAR RIZVI, J.---By this petition, the petitioner has prayed for the following reliefs:--
(i) Declare that the proceedings made by the General Court Martial under Pakistan Navy Ordinance, 1961 the conviction and sentence awarded to the petitioner, and the Court of Appeal Pakistan are without jurisdiction, coram non judice, illegal, without lawful authority and as such of no legal effect whatsoever and may be pleased to acquit the petitioner of all the charges which he has been tried and convicted.
(ii) Declare that the proceedings made in convicting the petitioner are in violation of the provisions of sections 42, 66, 78 and 79 of Pakistan Navy Ordinance, 1961, as well as of section 5(1)(a), section 6(1)(a), (e) of the Official Secrets Act, 1923.
(iii) Declare that the proceedings made in convicting the petitioner is in violation of Articles 18, 19, 20, 37, 38, 39, 117 and 119 of Qanun-e-Shahadat Order, 1984.
(iv) Mitigate the sentence to the extent of two years only.
(v) Dismissal from service may be converted to termination of service.
(vi) Any relief this Hon'ble Court may give as deemed fit keeping in view natural justice, considering the appellant a young man of 30s, a married person and having a small baby, old parents and specifically young wife."
2. Mr. Abdul Razzaq, learned counsel for the petitioner contended that petitioner was steward in Pakistan. Navy. He contended that in compliance of notice issued in C.P. No,D-241 of 2007 particulars on the basis of which the petitioner was convicted and awarded sentence by General Court Martial Pakistan Navy were totally different that the particulars of five different charges shown to him during proceeding before Court of Appeals Pakistan Navy. The charges are reproduced below:--
(a) Unauthorized possession of official documents.
(b) Unauthorized wearing of naval uniform.
(c) Wilfully communicated information to an unauthorized person.
(d) Without lawful authority wilfully disclosing information to which he had access owing to his position.
(e) Neglecting to obey Fleet Order.
3. Learned counsel urged that petitioner was harassed and tortured and the gist of their torture was to get a statement from the petitioner of their choice therefore the petitioner was compelled to plead guilty. He also urged that petitioner was considered not guilty of the third charge according to Rule 146 Sub-Rule (4) of Pakistan Navy Ordinance, 1961 (hereinafter referred to as PN Ordinance, 1961). He drew our attention to section 32 of PN Ordinance, 1961, which provides the offence corresponding with, supplying or serving with the enemy". This has been further categorized in four parts as:--
(a) communicates with or give intelligence to the enemy;
(4) fails to make known to the proper authorities any information received by him from the enemy;
(c) furnishes the enemy with supply of any descriptions; or
(d) having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorized by international usage;
4. Learned counsel further submitted that there is no evidence available on record that either secret information was in his official possession or he had stolen it from the possession of other senior officer, as the petitioner had not been confronted with the evidence of the facts as alleged if available with the prosecution i,e, particulars of the information; time at which such information was disclosed; and most specifically evidence that there was the person in existence and he would have utilized such information for ulterior motives. He further submitted that in order to prove allegation that petitioner was in possession of any confidential information the prosecution produced nine witnesses, who all senior officers had remained petitioner bosses in the Court for deposition but none of them have alleged that the accused when he was their subordinate had ever stolen or even tried to steal any such kind of information. He submitted that the charge of espionage has also not proved, therefore the petitioner is entitled to the reliefs claimed in this petition. Learned counsel in support of his submission regarding mitigating the sentence has placed reliance on the case of EX-SEPOY LIAQUAT ALI v. FEDERAL GOVERNMENT AND OTHERS (PLD 2002 Lahore 210), wherein it has been held that very act of confession voluntarily made by the accused should ordinarily take his case out of the ambit of severe punishment and bring it to an area of a lesser punishment, this being an accepted norm in the civilized world.
5. Mr. Nazar Akber learned D.A.-G. While controverting the contentions made by learned counsel for the petitioner has objected to the maintainability of this Constitutional petition on the ground, that petitioner being ex-sailor was tried by General Court Martial under PN Ordinance, 1961 and according to section 140 of the PN Ordinance 1961 the petitioner has no right to agitate the decision of Court Martial before any Civil Court. However, he submitted that the petitioner has right of Appeal only to Naval Court of Appeals under section 138(A) which he was offered in 2006 but he availed in 2010 on the directions of this Court. He supported the order passed by the General Court Martial and Court of Appeals and submitted that before awarding sentence to the petitioner the petitioner was given a Defending Officer, who cross-examined all the P. Ws. But the petitioner miserably failed to disprove the charges levelled again him; rather he pleaded guilty in an open Court without any pressure and fear. He also submitted that General Court Martial is a full fledge Court like other Criminal Court and can award any of the punishments to an accused which are permissible by the PN Ordinance 1961, He urged that the Court of Appeal of Pakistan Navy has heard the appeal of petitioner at length and given the decision. He urged that Constitution jurisdiction of this Court is barred by section 140 of PN Ordinance, 1961 and Article 199(3) of the Constitution. For convenience sake, Article 199(3) is reproduced below:- "199(3) An order shall not be made under Clause (1), on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any Law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any Matter arising out of his service, or in respect of any action taken in relation to him as a Member of the Armed Forces of Pakistan or as a person subject to such Law."
6. Learned D.A.-G. Also drew our attention to section 78(a) of PN Ordinance 1961, which reads thus:- - "78(a). If the offence is one which would be punishable under the law in force in Pakistan with death or with imprisonment for life, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the aforesaid law and such less punishment as is in this Ordinance mentioned."
7. We have given due consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record.
8. It is apparent from the record that earlier the petitioner approached this Court by filing C.P. No,D- 241/2007 mainly with the prayer to acquit the petitioner of all the charges he has been tried and convicted and further that the-proceedings made in convicting the petitioner are in violation Of the provisions of section 112 of the Pakistan Army Act, 1952. The petition was heard and disposed of vide order dated 14-1-2010 by taking a lenient view with the following observations:-- "After having heard learned counsel for the petitioner as well as learned D.A.-G. And Officers present in Court, by consent it is ordered that the Appeal filed by the wife of the petitioner against his conviction through a Field General Court Martial would be heard by the authorized Officer. The petitioner would be entitled to be represented through a counsel of his choice and the appeal would be decided within a period of three months from today.
' The petition stands disposed of in the foregoing terms."
9. The petitioner availed the appellate remedy available under section 138-A of PN Ordinance, 1961 under orders of this Court through his counsel. The counsel requested the Court of Appeals to provide proceedings of General Court Martial, as he has not seen the same. Such request was allowed and proceedings of General Court Martial shown to A petitioner counsel by the Judge Advocate to argue the appeal and sufficient time has been given to prepare his case for arguments. Prima facie full opportunity was afforded to the petitioner counsel to argue his case, but has failed to point out any infirmity either in the evidence or in the proceeding of GCM and the appeal was dismissed.
10. The petitioner again knocked the door of this Court for redressal of his grievances as agitated in the appeal filed before the Court of Appeals. However, in order to examine the case in the light of the submissions made by the learned counsel for the parties, we called original record and proceedings of the General Court Martial, which was produced in sealed cover and was opened and examined. We have also examined the Jail Roll of the petitioner produced by the Superintendent Central Prison Karachi in compliance of order dated 26-1-2011, wherein it has been mentioned that the petitioner is sentenced for the charge of espionage activities hence as per Rule 201-A of Pakistan Prison Rules he is not entitled for any ordinary or special remission unless Federal or Provincial Government or Competent Authority makes a specific order in writing in this behalf. It may be observed that this Court is not an Appellate Court to reappraise the entire evidence on record and to consider the same to conclude that it was a case of no evidence in order to render the conviction as without jurisdiction. In the case in hand the petitioner has availed the remedy available to him under PN Ordinance, 1961 wherein the petitioner did not retract even now and pleaded guilty on all the charges, which means that whatever has been stated in the charges is true and correct. This Court due to Constitutional bar under Article 199(3) of the Constitution is not competent to interfere in the matters relating to Armed Forces and not to press into service its Constitutional jurisdiction keeping in view the facts and attending circumstances of the case.
However, it may be observed that the petitioner can always file mercy petition to the CNS.
11. In view of the discussions made above, we find that the petition is not maintainable and is dismissed with no order as to costs.