SYED MUHAMMAD ATTIQUE SHAH, J. Petitioners Arif Hussain and Abid Hussain through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 have prayed as under:- "That orders dated: 18.10.2017 and 28.08.2017, whereby the pension of the petitioners was withheld on the ground that they were acquitted on the basis of compromise, from 09.07.1995 to 07.04.2017 are illegal, against Pakistan Army Act 1952 and Army Pension Regulation 2010, unlawful, without lawful authority, without jurisdiction arbitrary, malafide, perverse, in utter violation of law and rules, consequently, of no legal effect AND praying that both the orders be graciously be set aside. Furthermore, directing the respondents to release pay, allow the petitioners the outstanding pension alogwith the annual increase and 15% compound interest till the full and final payment".
2. Brief but relevant facts of the case are that the petitioners were serving in Pakistan Army and after completion of their services they were retired on 1993 and 1985 respectively and were awarded pensions in accordance with law. That on 09.07.1995 a case FIR No. 195 was registered against the petitioners under section 302/34 PPC at Police Station, Haripur. That due to registration of said case, the pensions of the petitioners were stopped despite that compromise has been effected between the parties and as a result thereof, the present petitioners have been acquitted from all the charges.
3. Arguments of learned counsel for petitioner as well as learned Assistant Attorney General heard and record available gone through.
4. The only question in the instant writ petition is that whether pensions of the petitioners can be withheld on the ground of their involvement in criminal case. Respondents in response to the writ petition submitted their parawise comments and took plea that "Payment of pension is subject to good conduct and when a pensioner is convicted due to criminal offence, the payment of pension is forfeited. In this respect they referred Rule-40 and 41-A of Pension Regulation Vol II, 2010", which are reproduced as under: -
40. "CHAPTER VI-REDUCTION OR FORFEITURE OF PENSION Reduction or forfeiture of pension of military pensioner who is convicted of a serious crime or is guilty of misconduct: - a. Crime or misconduct not of a political nature. If a military pensioner is convicted of a serious crime by court of law or is guilty of grave misconduct, which is not of a political nature the following procedure shall be followed:-
(1) If a pensioner is sentenced to imprisonment for a criminal offence, his pension shall be suspended from the date of his imprisonment and the case shall be reported at once by the pay disbursing officer to Audit Office. The later shall take up the case for the orders of the sanctioning authority .
(2) In case where a pensioner is kept in police or jail custody as an under-trial prisoner and is eventually sentenced to a term of imprisonment for criminal offence, the suspension of pension shall take effect from the date of imprisonment only.
(3) The sanctioning authority, shall decide the case in consultation with the Audit Office, and if necessary, with the civil authorities also, whether the offence is a serious one and if so, he shall order the removal. of the pensioners name from the pension list, from the date of the commencement of his imprisonment. Pension thereupon shall cease to be payable from that date.
(4) If the sanctioning authority decides that the offence is not so serious as to justify the removal of the pensioner's name from the pension list, it shall not be removed; the payment of arrears of pension due from date of last payment before imprisonment shall be made on release from prison.
(5) If pensioner is sentenced to imprisonment for criminal offence by a lower Court but is acquitted, on appeal, by a higher court, the pension withheld shall be restored.
(6) If a pensioner is imprisoned for debt, pension shall continue to be paid.
(7) If a pensioner is guilty of grave misconduct not falling under the preceding clauses , it shall at once be reported to the sanctioning authority which may, if it considers it justifiable, order , suspension of his pension from a date to be specified. The sanctioning authority shall subsequently investigate the case in consultation with the Audit Office and the civil authorities, if necessary , and may withhold, reduce or continue the pension in full from a date to be specified by it not earlier than the date of original suspension. b. Crime or misconduct of a political nature.
If a pensioner is convicted of a crime or is guilty of misconduct, of a political nature his case shall forthwith be reported by the Audit Office to the sanctioning authority, which on the administration concerned, may order the forfeiture of his pension (service and disability pension, family pension drawn by adult males only, and children's allowance) from a date to be specified. In a case in which the pensioner is sentenced to imprisonment, pension shall pending the order of the sanctioning authority, be suspended from the date of his imprisonment.
41. Restoration of pension forfeited under the preceding Rule.
A pension reduced, withheld or forfeited under rule 40 or 21 A and 78 of Volume -I of these regulations, may be restored in full or in part by the sanctioning authority in consultation with the local Government or administration concerned in political cases and with Controller of Military Pension and the civil authorities, if necessary , in other cases. In the case of a pensioner underg oing imprisonment any action under this rule shall only be taken on his application after release, but, in no case, shall pension be sanctioned for the period of imprisonment in jail for a serious crime.
5. Perusal of ibid rules would show that pension can only be withheld when a pensioner is convicted/sentenced to imprisonment, but in the present case, the petitioners were not convicted, rather they were acquitted from the charges on the basis of compromise. When specifically asked, learned Assistant Attorney General could not controvert the same, thus, it is established that the pensions of petitioners were wrongly and illegally withheld by the respondents.
Now coming to the question of acquittal of the petitioner on the basis of compromise in this regard it is observed that all acquittals are certainly honourable. In the case tiled: Dr. Muhammad Islam, instructor, Animal Husbandry In-Service Tribunal Training Institute, Daudzai, Peshawar District Vs. Government of N.W.F.P through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 PLC (CS) 1430 (Supreme Court of Pakistan) it is held that: - "We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused acquitted in consequence thereof What shall be the nature of such acquittals". All acquittals are certainly honourable.
There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals".
6. Hence, the instant writ petition is allowed and respondents are directed to forthwith release the withheld pension of petitioners alongwith all the back benefits/annual increases etc.