' MUHAMMAD SHERAZ KIANI, J.---The captioned writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the petitioner has challenged the order dated 18.12.2013 passed by the Commanding Officer, 658 Mujahid Battalion, Field General Court Martial, Muzaffarabad for having been issued without lawful authority.
2. Brief facts culminating into the filing of the instant writ petition, as claimed by the petitioner are that he is a civilian, living in Mirpura, Tehsil Athmuqam District Neelum and was running a grocery store and vegetable shop in his Mohall. It is alleged that on 24.12.2011 at 10:00 a.m., he was arrested from Bahrain Bazar in presence of the shopkeepers and the public passing through the bazar, while he was going to get treated his child by the local doctor. It is further alleged that after his arrest, the petitioner remained in the custody of respondents Nos.3 to 6 and thereafter, was summoned by the President Field General Court Martial, Chakoti on 19.09.2012 to appear as a witness in trial of one; Sabir Hussain Shah, ex3, NLI. It is stated that the petitioner was intimated through order dated 18.13.2013 that the petitioner has been awarded 5 years' R.I under Section 59 of Pakistan Army Act, read with Section 3 of the Official Secrets Act, 1923 and the petitioner was sent to the Central Prison, Rara Muzaffarabad to undergo the awarded sentence. It is further stated that the petitioner, 'through his brother filed a writ. petition before this Court, for production of the detenu and quashment of the impugned order as well and this Court vide judgment dated 19.05.2015 held that an alternate remedy was available to the petitioner and dismissed the petition. In pursuance, whereof, the petitioner filed an appeal before the Chief of Army Staff which is still awaiting reply, besides filing a PLA before the apex Court of AJK and the Supreme Court vide its judgment 17.09.2015 disposed of the PLA with the direction to the petitioner for filing a fresh petition in person and a direction was also made to this Court that if the petition is filed, the same be disposed within 45 days, hence, the above titled writ petition before this Court.
3. On filing of the petition, respondents were summoned, initially for filing comments and later on for written statement and the needful has been done, accordingly.
4. In the written statement filed on behalf of respondents, the claim of the petitioner has been denied and it has been stated that the petitioner has been sentenced by the Army Authorities under Section 59 of the Pakistan Army Act, read with Section 3 of the Official Secrets Act, 1923 and has been sent to the Central Prison, Muzaffarabad and letter annexed with the petition by the petitioner has not been issued by the concerned Brigade.
5. Mr. Mujahid Hussain Naqvi, Advocate, the learned counsel for the petitioner, during the course of arguments, contended that the petitioner is a civilian and responsible citizen of Azad Jammu and Kashmir, who was earning his livelihood by running a grocery store in his native village. The learned counsel maintained that the petitioner was summoned as a witness and being a civilian, he could not be convicted under Section 59 of the Army Act or the Official Secrets Act, 1923 and the confinement of the petitioner is illegal. He submitted that no trial of the petitioner was held in accordance with law. In support of his version, he referred letter of 5 AK Brigade slated 29.07.2015.
He prayed that by accepting the instant writ petition, sentence be quashed and the petitioner be released from the custody. Referring to the written statement filed on behalf of the official respondents, the learned counsel argued that the written statement has not been filed on behalf of an authorized person and has also not been supported by an affidavit, therefore, the written statement is not worth consideration. In support of his stance, the learned counsel referred following precedent case law and craved for grant of writ and release of the petitioner:- 1993 SCR 88; 2008 SCR 184; 2008 SCR 60; 2000 YLR 1891; PLD 1987 SC (AJ&K) 109; PLD 1984 SC (AJ&K)
13; PLD 1990 SC (AJ&K) 13; PLD 1978 SC (AJ&K) 142; PLD 1978 SC (AJ&K) 140 and PLD 1995 SC (AJ&K) 1.
6. Conversely, Ch. Shaukat Aziz, AAG repudiated the claim of the petitioner and contended that the petitioner's case comes within the ambit of Section 2(e) (ii) of the Pakistan Army Act and he has been convicted by the Field General Court Martial, under Section 59 of the said Act read with Section 3 of the Official Secrets Act, 1923. The learned AAG contended that the petitioner has an alternate remedy of filing appeal before the Higher Authorities of the Armed Forces of Pakistan and the relief sought by the petitioner cannot be granted by this Court. He contended that in presence of alternate remedy this writ petition is not maintainable and the attached letter has not been issued by the relevant authority.
7. We have heard the learned counsel for the parties, perused the record, made available with the file and considered the controversy to the utmost possibility.
8. According to the version of the petitioner, the case of the petitioner can be summarized in the following words:- i. that the petitioner is a civilian and was not subject to Army Act 1952 thus; trial of convicted under the said Act is illegal(?) ii. that no trial was conducted by the Field General Court Marital thus, he was not provided chance of fair trial and condemned unheard(?) iii. under the Official Secrets Act, 1923 a civilian can be tried by a magistrate or Session Court (?)
9. The previous writ petition was filed by Syed Tassadaq Hussain Shah, brother of the petitioner Syed Tasawar Hussain Shah, on 01.12.2014 and decided by this Court vide its judgment dated 19.05.2015, all the above mentioned points were discussed and it was held by the Court that the imprisonment of the petitioner cannot be termed as illegal confinement and a civilian can be tried by Court martial tinder the Military Act, 1952, read with section 3 of Official. Secrets Act, 1923. The petitioner, therein Syed Tassadaq Hussain Shah feeling aggrieved by the judgment of this Court filed petition for leave to appeal before Hon'ble Supreme Court of Azad Jammu and Kashmir and according to the judgment of apex Court the PLA was not converted into regular appeal, so the judgment of this Court dated 19.05,2015 has not been set aside. As this petition has been filed by Syed Tasawar Hussain Shah, petitioner, himself and almost same points have been raised, again and as the petitioner is not the same so, it would be appropriate to give fresh findings on the points raised by the learned counsel for the petitioner in the instant writ petition. But at the same time it has already been held that in the previous judgment the petitioner is not in the wrongful confinement as he was awarded punishment by Field Court Martial with the 5 years' rigorous imprisonment. For proper perception of law section 2 of the Army Act, 1952 is reproduced below:- "2(1). The following persons shall be subject to the Act, namely:--
(a) officers, junior commissioned officer and warrant officers of the Pakistan Army;
(b) persons enrolled under the Indian Army Act, 1911, before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;
(bb) persons subject to the [Pakistan Navy Ordinance, 1961], or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army, to such extent and subject to such regulation as the [Federal Government] may direct;
(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the [Federal Government] by notification in this behalf, are employed by, or are in the service on or are followers of, or accompany any portion or the Pakistan Army;
(d) persons not otherwise subject to this Act who are accused of-
(i) Seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) Having committed, in relation to any work of defense, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923.
(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December, 1971;"
10.Under sub-clause 2 of clause d of the above mentioned section if a person who has committed any offence in relation to any work of defence arsenal, naval or military etc. under the Official Secrets Act, 1923 is also subject of the said Act. The word any person not otherwise subject itself connotes that other than the military men. Therefore it can be concluded that any person who may be a civilian and commits an offence under the Official Secrets Act, 1923 in relation to any work of defence arsenal, naval, military or air force would be subject of Army Act, 1952. For proper appreciation of law, subsection (4) of Section 59 of the Army Act, is reproduced, hereunder:- "[(4) Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of Section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provision of this section shall have effect accordingly.] 11.The word 'notwithstanding anything contained in this Act or any other law' has an overriding effect upon the other laws, so, normally under the Official Secrets Act, if an accused is tried by a Magistrate or the Court of Session, but when a civilian becomes subject to the Army Act, under paragraph 2 of sub-clause 'D' of Section 2 of the Act, his case shall be triable under the Army Act.
12.According to warrant of commitment (Anex.PG), Field General Court Martial of the petitioner was held at Muzaffarabad from 30th July 2013 to 28th August 2013, the Field General Court Martial convicted the petitioner and awarded punishment of rigorous imprisonment for five years under section 59 of the Pak Army Act, 1952 read with section 3 of the Official Secrets Act, 1923. Section 59 of the Act is usefully reproduced below:-
59. Civil Offences.-- (1) Subject to the provisions of subsection (2), any person subject to this Act who at any place in or beyond. Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by Court martial, and, on conviction, to be punished as follows, that is to say,---
(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with transportation, he shall be liable to suffer any punishment other than whipping assigned for the offence by the aforesaid, law or such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment other than whipping assigned for the offence by the law in force in Pakistan, or with rigorous imprisonment for a term which may extend to five years or with such less punishment as is in this Act mentioned.
(2) A person subject to this Act who commits an offence of murder against a person not subject to this Act or to the Indian Air Force Act, 1932, or to the Pakistan Navy (Discipline) Act, 1934, or Of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by Court martial unless he commits any of the said offences;
(a) While on active service, or
(b) At any place outside Pakistan, or
(c) at a frontier post specified by the Central Government by notification in this behalf.
(3) The powers of a Court martial to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act."
13.Under the abovementioned section any person who is subject to Army Act under the provision of subsection (2) commits any civil offence shall be deemed to be guilty of the offence under this Act. Furthermore, according to warrant of commitment (Anex.PG) the petitioner was attached with 658 Mujahid Battalion, so in the light of abovementioned law we have no doubt in our mind that the petitioner was subject to the Army Act and the punishment awarded to him by the Field General Court Martial cannot be termed as without lawful authority as he is shown as attached with 658 Mujahid Battalion (Anex.PF & PG). On the face of record the Court has to believe that he was attached with the said Battalion. The contention of the learned counsel for the petitioner that petitioner, was not involved in the affairs of army is such a question of fact which in absence of any supportive documentary evidence, particularly from the concerned Battalion cannot be agreed upon.
14.It is basic requirement of law that if there is no alternate remedy, only then extraordinary constitutional jurisdiction of this Court under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, can be invoked, whereas, in the instant case, the petitioner has an alternate remedy and under section 131 of the Act he could have filed an appeal against the sentence to the Central Government or Commander-in Chief or to any authorized officer under the said section.
Section 131 of the Pakistan Army Act, 1952 reads as under:- "131. Remedy against finding and sentence of Court martial. (1) Any person subject to this Act who considers himself aggrieved by the finding or sentence; of a general, field general or district Court martial may submit a petition, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation to the Central Government, or the Commander- in-Chief or to any prescribed officer, provided that such prescribed officer is higher in rank than the one who confirmed such finding or sentence.
(2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary Court martial may submit a petition to the Central Government or the Commander-in- Chief, or any officer empowered to act under section 128.
15.According to para-8 of the petition, the petitioner has already filed an appeal on 30.07.2015 before the Chief of Army Staff, so after F filing the appeal, this petition has become infructuous.
16.The learned counsel for the petitioner referred copy of the letter Annex. PD' written by Headquarter 5 AK Brigade to the counsel of the petitioner, wherein it has been mentioned that petitioner; Syed Tasawar was held by the said Brigade but this letter is of no help to the case of Hussain Shah neither belongs to said headquarter nor any Court martial the petitioner, as according to the warrant of commitment, the Field General Court Martial of the petitioner was held in 658 Mujahid Battalion and sentence of imprisonment was confirmed by Brigade Commander, 32 AK Brigade, so letter from headquarter of 5 AK Brigade is irrelevant in the case of the petitioner.
17.The contention of the learned counsel for the petitioner that under section 3 of Official Secrets Act, 1923 a case under the said Act can be tried by Magistrate 1st Class or Court of Session is also without any substance due to simple reason that a Magistrate or Court of. Session shall try any offence under this Act, when accused is not subject to the Army Act but as earlier it has been observed that the petitioner was subject to the Army Act and his trial by Field General Court Martial cannot be held without lawful authority because in section 59, it has been clearly visualized that any person who has committed an offence under Official Secrets Act, 1923 and who is subject to Army Act can be tried and awarded punishment by Military Court. Although the details of proceedings are not available with us but from perusal of the copy of the warrant of commitment and letter Anex.PF it reveals that the petitioner was attached with 658 Mujahid Battalion thus, he was tried by the Court Martial. This view finds support from the case law, reported as PLD 1975 SC 506, PLD 1999 SC 504, and 2004 SCM R 1761. In the case titled Government of Pakistan v. S. H. T Leelan and others , the apex Court of Pakistan, at page 1764 of the report has pleased to observe as under:- "Paragraphs (i) and (ii) of clause (d) of subsection (1) of section 2 of the Act referred to above spell out circumstances under which persons who are not otherwise subject to the Act would fall within the mischief of the Act and both the clauses are disjunctive. The Sindh High Court in holding that the civilians can be tried under the Act only if they are accused of seducing or attempting to seducing any person subject to the Act from his duty or allegiance to the Government has confined itself to para (i) of clause (d) of subsection (1) of section 2 of the Act referred to above and has totally ignored the import of paragraph (ii) which expressly lays down that civilian would be subject to the Pakistan Army Act if he has committed an offence in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923."
18.Whether any irregularity or illegality regarding his trial was committed by the Military trial Court can be considered by the concerned appellate authority and this Court, while exercising its constitutional jurisdiction cannot sit as an appellate Court.
19.As far as the version of the learned counsel for the petitioner that the appeal of the petitioner has not been disposed of so far, is also not a valid ground for entertaining this writ petition. Nothing has been brought on record which may suggest that he was not attached with said Battalion or his Court martial was not held by the concerned Field General Court, Martial.
20.As far the argument that the petitioner was summoned in Military Court as a witness in the proceedings held against one; Syed Sabir Hussain Shah Sepoy, Exh-3 Northern light infantry regiment is concerned, according to Anex.P.E the petitioner was summoned on September 19, 2012 in the said proceedings but according to Anex.PG his Court Martial was held from 30.07.2013 to 28.08.2013 almost after 11 months, so it is difficult to presume that he was just a witness and after 19.09.2012 he was not attached with 658 Mujahid Battalion and has done nothing wrong as all the official documents carry presumption of correctness and the warrant of commitment is an official document and its contents cannot be disbelieved in absence of any contradictory evidence in this regard.
21. As far as the case law, referred by the learned counsel for the petitioner is concerned, the same is not applicable in the case in hand due to the distinguishable facts and circumstances of the case, hence; need not to be discussed in detail.
22. In light of what has been stated above finding no force in this IL writ petition, the same stands dismissed.