' SHEZADA MAZHAR, J.---Through this single judgment, I intend to decide the above captioned writ petitions as common question of law and facts are involved in all the writ petitions.
2. Facts necessary for the disposal of these writ petitions are that the petitioners were serving in Pakistan Army and they were subject to either Summary Court Martial (SCM) or Field General Court Martial (FGCM) under the Pakistan Army Act, 1952 (PAA) and after award and confirmation of the sentence or after availing the remedy of Appeal as available under section 133-B of Pakistan Army Act, the petitioners have approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan for setting aside the sentences awarded to them.
3. Whereas in Writ Petitions Nos. 2412 to 2415 of 2012 the petitioners were also serving in Pakistan Army and they were sentenced under Filed General Court Martial (FGCM) under the Pakistan Army Act, 1952 (PAA) and thereafter they applied for the copies of the investigation reports, Copies of Court of inquiry, Summary of evidence along with charge sheets, Convening Order and Committal Warrants which were not provided to them and therefore they filed the writ petition for obtaining above mentioned copies in order to formulate the grounds of appeal.
4. In Writ Petition No, 3190 of 2011, the petitioner is a civilian and he was sentenced by the Field General Court Martial (FGCM) and filed the present petition for obtaining proceedings of Field General Court Martial.
5. In all the writ petitions, respondents raised preliminary objection with regard to the maintainability of the writ petitions and therefore parties were directed to address arguments first on the issue of maintainability before proceeding on merits of each case.
6. Learned counsel for the petitioners submit that the bar contained under Article 199(3) is not absolute and it has been held time and again by the Hon'ble Supreme Court that where Army action was found to be without jurisdiction or coram non judice or mala fide, extraordinary jurisdiction of High Court under Article 199 of the Constitution could competently be invoked by an aggrieved person. In this regard learned counsel has referred to Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), The State v. Ziaur-Rehman and others (PLD 1973 SC 49), Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738), Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), Muhammad Azhar Siddique and another v. Government of Punjab through Chief Secretary Lahore and 18 others (PLD 2010 Lahore 138) Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229) and Federation of Pakistan and others v. Raja Muhammad Ishaque Qarar and another (PLD 2007 SC 498).
7. On the other hand learned Standing Counsel vehemently opposed the present writ petitions.
Submits that writ petitions are not maintainable in view of Article 199(3) of the Constitution of Islamic Republic of Pakistan. He relied upon Mrs. Naheed Maqsood v. Federation of Pakistan through Secretary, Ministry of Interior Government of Pakistan, Islamabad and 4 others (1999 SCMR 2078) and Federal Government Ministry of Defence v. Seopy Liaqat Ali (2004 SCMR 1676). Further submits that in view of section 133-B(3), these petitioners are liable to be rejected. Adds that proceedings of Summary Court Martial or field General Court Martial are neither mala fide nor without jurisdiction or coram non judice and therefore, petitions are not maintainable.
8. Arguments heard. Record perused.
9. Article 199(3) of the Constitution of Islamic Republic of Pakistan states as under:- 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.
10. The provisions of Article 8 (3) is also very relevant in this regard which states as under:-- ' The provisions of this Article shall not apply to--- (a). Any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them: or
(b) any of the
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Scheduled and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
11. The exception to the above rule is only when the act is mala fide, without jurisdiction or coram non judice.
12. In the present cases all the petitioners were admittedly members of the Armed forces and the order passed by the Summary Court Martial or Field General Court Martial or the Court of appeal is neither without jurisdiction nor mala fide or coram non judice (except in Writ Petition No,3190 of 2011) where the petitioner is a civilian, who was involved in anti-State/terrorist activities and was charged for seducing the army personal therefore he was subjected to PAA under section 2(1)(d)
(iii) read with section 59(4) of PPA and therefore was liable to be tried and dealt with the provisions of said Act as such.
13. The bar contained in Article 199(3) of the Constitution of Islamic Republic Pakistan is fully applicable to all these cases including the case of civilian. In this regard reliance is placed on the judgment reported as Ex.Lt.-Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence Rawalpindi and 2 others (PLD 2001 SC 549) wherein the Court has observed as under:-- "This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or male fide. The matters relating to the Members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as Member of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution. Article 8(3) of the Constitution also envisages that the provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them.
According to section 133(3)(B) of the Act the decision of the Court of appeal is final and cannot be called in question before any Court or Authority whatsoever.
' Also in Mrs. Naheed Maqsood v. Federation of Pakistan through Secretary, Ministry of Interior; Government of Pakistan, Islamabad and 4 others (1999 SCMR 2078) wherein the Hon'ble Supreme Court has held that:-- Admittedly the convict at the relevant time was a member of the Armed Forces. He was convicted by a Court or Tribunal (i,e, the General Field Court Martial) established under a law relating to the Armed Forces of Pakistan and, therefore a writ could not have been issued against the General Field Court Martial or against the appellate Authority, which confirmed the conviction and sentence, by a High Court in view of above clause (5) of Article 199 of the Constitution as the above General Field Court Martial is excluded from the definition of person in clause (1) thereof.
14. Even otherwise under Article 199(1) of the Constitution of Islamic Republic of Pakistan, this Court can direct 'person' only whereas under Article 199(5) which states:--
(5) In this Article, unless the context otherwise requires; `person' includes anybody Politic or Corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a Law relating to the Armed Forces of Pakistan; The Court or Tribunal established under a law relating to Armed Force of Pakistan does not fall under the definition of person and therefore, no writ lies against such court or Tribunal. In all the present cases writ has been filed against the sentence awarded by such Court or Tribunal on or such Court or Tribunal allegedly refused to grant copies of proceedings.
15. In this view of the matter, these writ petitions are not maintainable and as such they are hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.