Sarmad Jalal Osmany J.--This petition impugns the judgment of the learned Lahore High Court in W.P No, 1595/2005 filed by the Petitioner, which was dismissed vide Order dated 18.01.2013.
2. Briefly stated the facts of the case are that the Petitioner while serving as a Risaldar in Armoured Corps Center at Nowshera Cantt, was charged under Section 377 of the PPC i,e, committing an unnatural offence with a Civilian namely Rashid Nadeem, who had come for the purpose of recruitment at the Center. He was also charged under Section 55 of the Pakistan Army Act for improperly allowing the Civilian to stay in his room as a guest. Thirdly under same Section for having lied to the effect that the said Civilian was his guest. The Field General Court-martial, which was convened to try the Petitioner, found him guilty of the first and third charge and sentenced him to two years R.I alongwith dismissal from the service. However, the Confirming Officer ordered re- assembly of the Court-martial for the purpose of recording additional evidence and having done so confirmed the previous findings and the sentence etc. The Petitioner appealed within the hierarchy of the Army without success and as noted above the same fate met the writ petition filed by him.
3. Col. (R) Muhammad Akram, Learned ASC appearing for the Petitioner has contended forcefully that the evidence produced before the Field General Court-martial was insufficient and otherwise not satisfactory in order to return a verdict of guilt regarding the Petitioner. He has been at pains in order to establish this version of the evidence available on the record, which basically consists of the eye-witness account and the medical record. According to Learned ASC, per settled Law where there is a case of no evidence or where the evidence is insufficient or otherwise flawed then it would be a case of no jurisdiction and hence the bar contained under Article 199(3) of the Constitution, whereby the writ jurisdiction of the High Court has been curtailed vis-a-vis members of Armed Forces, would not operate. In support of his contentions Learned ASC relied upon Sabur Rehman and another vs. Government of Sindh and 3 others (PLD 1996 Supreme Court 801), Dilawar Jan vs. Gul Rehman and 5 others (PLD 2001 Supreme Court 149), and Rahim Shah vs. The Chief Election Commissioner of Pakistan another (PLD 1973 SC 24).
4. We have heard Learned ASC and have perused the record with his assistance. Our conclusions are as follows:
5. There is no doubt that per settled Law where any action or order of any authority relating to the Armed Forces of Pakistan, which is either corum-non-judice, malafide, or without jurisdiction, the same can be challenged before the High Court and the bar contained Article 199(3) of the Constitution would cease to operate. As much has been held in a long line of cases such as Brig.
(R) F.B. Ali and another vs. The State (PLD 1975 SC 506), Federation of Pakistan and another vs. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Shahida Zahir Abbasi and 4 others vs. President of Pakistan and others (PLD 1996 SC 632), Sardar Farooq Ahmed Khan Leghari and others vs. Federation of Pakistan and others (PLD 1999 SC 57) and Mushtaq Ahmed vs. Secretary Ministry of Defence (PLD 2007 SC 405).
6. According to Learned ASC the proceeding/orders before the Army Authorities cannot be challenged on the ground of corum-nonjudice or malafides but certainly on the ground that it was a case of no evidence or insufficient evidence which could be equated to lack of jurisdiction. In this regard it would be seen that jurisdiction upon a Court of Law, be it established under the Constitution or under the Pakistan Army Act, is given through the Law itself i.e under Section 84(a) of the Said Act and hence it cannot be said that the Field General Court-martial acted without jurisdiction. In fact one of the questions which were put to the Petitioner at the initial stage of the trial was whether he objected to the proceedings to which he answered in the negative. It would further be seen that the High Court in its constitutional jurisdiction is not a Court of Appeal and hence is not empowered to analyze each and every piece of evidence in order to return a verdict.
In this regard its jurisdiction would be limited to scanning the evidence in order to ensure that the Accused has been given a fair trial. Indeed, in the case of Sabur Rehman vs. The Government of Sindh (supra) it was observed by this Court (majority view), "That in some of the decided cases it has been held that if a finding is based on no evidence it will be a case of without jurisdiction but again the basic question is as to whether the High Court in exercise of constitutional jurisdiction or this Court while hearing an appeal arising out of a refusal of the High Court to set aside the conviction can take upon itself the role of an Appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible. The High Court, after going through the record, was satisfied that it was not a case of no evidence. In our view, the approach of the High Court was correct that it had not reappraised the evidence and had not analyzed the same in the judgment as it was not hearing a regular appeal". We would respectfully agree with the majority view in the instant case but would hasten to add that where a finding is perverse or based on no evidence at all, then certainly the high Court in exercise of its constitutional jurisdiction could interfere.
7. Consequently, in order to do full justice to the Petitioner, we have with the assistance of Learned ASC, gone through the evidence and we do not find that either it is a case of no evidence or that evidence led by the prosecution was insufficient to convict the Petitioner. Indeed, the victim has himself very candidly described the Petitioner's forced sexual encounter when he committed the unnatural offence. This has been corroborated by the medical evidence on record.