SARMAD JALAL OSMANY, J. --- Leave in this matter was granted by this Court in order to consider the following questions:---
(a) Whether the learned High Court was justified in taking cognizance of the matter and whether the jurisdiction was barred under Article 199(3) of the Constitution.
(b) Whether the conviction recorded and sentence imposed by the Field General Court Martial against the respondent was mala fide, without jurisdiction and coram non judice.
(c) Whether the offence, said to have been committed by the respondent, was a civil offence or a military offence.
(d) Whether non-filing of valid tax statement is an offence, exclusively triable by the concerned Tribunal/Court with reference to Section 127 of Income Tax Ordinance, 1979.
(e) Whether the offence falls under Section 55 or Section 59 of the Pakistan Army Act, 1952, if so, to what effect.
(f) Whether the offence in question can be tried both, under the provisions of Income Tax Ordinance, 1979 as well as Section 55 of the Pakistan Army Act, 1952.
2. Briefly stated the facts of the matter are that the Respondent, a serving officer of the Pakistan Army, was tried by a Field General Court Martial (FGCM) on three charges relating to money matters and on the fourth charge relating to improperly filing of his tax return for the year 1996- 1997 by declaring his salary as a sole source of income well knowing that he had income from other sources also. After being arraigned on the afore-mentioned charges, the Respondent pleaded not guilty. At the conclusion of the trial the FGCM adjudicated him guilty on all four counts and awarded a sentence of dismissal from service coupled with one year rigorous imprisonment on 13.08.1999. However the competent authority did not confirm the findings on the first three charges but confirmed the finding on the fourth charge and sent up the matter for confirmation to the Chief of Army Staff who, whilst remitting the sentence of one year's rigorous imprisonment, maintained the Order of dismissal from service. The Appeal filed by the Respondent before the Army Court of Appeals was dismissed, however upon filing of a Writ Petition before the learned Lahore High Court, Rawalpindi Bench the same was allowed and the Respondent's conviction and sentence under the fourth charge was set aside, The Appellant being the Federal Government through Ministry of Defence, Rawalpindi has challenged the afore-mentioned Order of the learned Lahore High Court in Civil Petition No. 125 of 2009 which as stated above was allowed and converted into an Appeal.
3. Mr. Khawaja Ahmed Hassan, learned DAG has firstly submitted that the Writ Jurisdiction of the learned High Court was barred under Article 199(3) of the Constitution as the matter related to the terms and conditions of the Respondent's service and also with respect to action taken against him as a member of the Armed Forces. In support of this contention he has relied upon Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCM R 1229), The State v. Zia- ur-Rahman and others (PLD 1973 SC 49), Capt. Syed Jamil Ali Shah v. Federal government Ministry of Defence through Chief of the Army Staff, g.H.Q., Rawalpindi 2004 P.Cr.L.J. 560) and Brig. (Retd.) F.B.
Ali and another v. The State (PLD 1975 SC 506). Per learned DAG the fourth charge i.e. Non- disclosure of all sources of income in the officers income tax returns is an offence squarely covered under Section 55 of the Pakistan Army Act, 1952 being a violation of good order and discipline and consequently the learned High Court erred while holding that where the income tax authorities had failed to prosecute the Respondent for concealing his wealth the any authorities could do not so.
Hence the Army Authorities could try him for this offence in which event the jurisdiction of the High Court was barred under Article 199 (3) of the Constitution.
5. On the other hand Col. (R) Muhammad Akram, learned ASC appearing for the Respondent has submitted that the bar of jurisdiction contained under Article 199(3) of the Constitution cannot come in the way of the Respondent where the impugned Order of the any authorities is either mala fide, corum non judice or without jurisdiction. In this regard he has relied upon Pir Sabir Shah v.
Federation of Pakistan and others (PLD 1994 SC 738), Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506) and Federation of Pakistan and another v. Malik ghu/am Mustafa Khan (PLD 1989 SC 26). His further submission in this connection is that Section 55 of the Pakistan Army Act, 1952 which prescribes a punishment for violation of good order and discipline essentially relates to the performance of military duty and to the maintenance of good order and discipline therein and hence wrong filing of an income tax return has nothing to do with such matters. At the most this could be classified as a civil offence which has been defined under Section 8(3) of the Act to mean a criminal offence triable by a Criminal Court of ordinary criminal jurisdiction. As wrong filing of an income tax is not triable by an ordinary Court of criminal jurisdiction but falls within the hierarchy of income tax laws therefore the FGCM had no jurisdiction to try the Respondent for such an offence.
Consequently the learned High Court correctly accepted the writ filed by the Appellant as the any authorities did not have the jurisdiction to proceed in the matter because neither was the offence a civil offence as defined in Section 8(3) ibid and nor was it an offence under Section 55 of the Act.
6. We have heard both the learned DAG as well as the learned ASC and perused the record alongwith their assistance.
7. It would be seen that per well-settled law if any action of the any authorities regarding a serving officer of the armed forces or any other person subject to the Act is established to be either ma/a fide, corum non judice or without jurisdiction then the same can be assailed through a Writ Petition by the aggrieved persons. In this regard the genesis of this principle of law can be gleaned from the case of Brig. (Retd.) F.B. Ali and another (Supra) wherein it has been observed in no uncertain terms that the bar of jurisdiction imposed under Article 199(3) of the Constitution would have no applicability in cases where the impugned Order was either mala fide, quorum non judice or without jurisdiction. Adverting to the main issue that whether or not a violation of the income tax laws was prejudicial to good order and military discipline per Section 55 of the Act, it would be seen that said Section falls at the end of Chapter 5 which defines substantive offences under the Act.
Beginning with Section 24. A similar provision is found in Section 52 of the Act where behavior unbecoming of an officer etc. Has been made punishable with dismissal from the service or such less punishment as has been prescribed under the Act. In our opinion these two provisions of the Act i.e. Sections 52 and 55 are omnibus provisions which perhaps relate to the general behaviour and conduct of an officer of the Pakistan Army whereas the other offences starting from Section 24 to Sections 51, 53, 54 and 57 describe substantive offences. Hence the Offences under Sections 52 and 55 ibid are in fact not described in detail at all and consequently would cover any action or conduct which is unbecoming of an officer and gentleman. In essence therefore the aforementioned provisions of the Act which describe certain offences could be called military offences as distinguished from civil offences which have been defined in Section 8(3) as an office which if committed in Pakistan would be triable by a Criminal Court. In this regard it would also be beneficial to refer to Section 59 of the Act which provides that any person subject to the Act who commits any civil offence shall be charged and liable to be dealt under the Act and on conviction to be punished with death. Imprisonment for life etc. Therefore it could be said that whereas military offences cover a were range of conduct relating to persons subject to the Act, civil offences are confined to Criminal conduct only and for which a person could be tried in a criminal Court in Pakistan.
8. In view of the foregoing discussion therefore Sections 52 and 55 of the Act could cover a were variety of conduct of a person subject to the Act generally with regard to his day to clay behaviour with others, his/her integrity and good conduct. Hence in a manner of speaking it could be said that falsifying an income tax return by an officer would be covered under Section 55 of the Act because it certainly displays a lack of integrity etc. However having said as much it would further be seen that per the record the said income tax return was accepted by the concerned income tax authorities and the Respondent was not either asked to show cause why it should not be accepted or otherwise required to justify the same. Consequently in our opinion prosecution of the Respondent by the any authorities for an offence which the concerned department had not taken cognizance of by issuing him any Show-Cause Notice etc. And given him, so to speak, a clean chit, then it was not within the domain of the any authorities to prosecute him for the same particularly as the income tax hierarchy provides for appeals etc. Which in theory the Respondent could have availed if he had been proceeded against by such authorities and the result was not in his favour.
9: As far as the cases cited by the learned DAG, we are afraid that these are of no avail to the propositions argued by him as they only reiterate the principle that where orders passed by the Army authorities are either male fide, corum non judice or without jurisdiction, same could be assailed before the High Court in writ jurisdiction.
10. For the foregoing reasons we hold that the any authorities did not have the jurisdiction to prosecute the Respondent on the charge of falsifying his tax return in the particular circumstances of the case and we would while upholding the impugned judgment, therefore, dismiss the Appeal.
We have been informed that the Respondent had reached the age of superannuation in the year 2001 and hence he shall be deemed to have honourably retired from the Pakistan Army as a Lieutenant Colonel with all consequent benefits including pension etc.
11. Above are the reasons for the short order passed by us on 25th April, 2014 dismissing this Appeal which reads follows:--- "For reasons to be recorded later, this appeal is dismissed. The Respondent It. Col. Munir Ahmed gill, who statedly has reached the age of superannuation in the year 2001, shall be given all pension benefits etc."