MUHAMMAD FARRUKH IRFAN KHAN, J.----Through this writ petition the petitioner who was a Commissioned Officer in the rank of Colonel in Pakistan Army, has impeached the validity of the proceedings of the Military Authorities culminating into his dismissal from service on the charge of tempering his confidential service record on the basis of which he was to be promoted to the rank of Brigadier, with the collusion of concerned officials of Military Secretary Branch.
2. The Writ Petition was earlier dismissed summarily by this court vide order dated 11-05-2011 in the absence of learned counsel for the petitioner while relying on the judgment cited as "Mushtaq Ahmed and others v. Secretary Ministry of Defence" (PLD 2007 Supreme Court 405) as being not maintainable under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 however, in appeal (I.C.A. No,142 of 2011) the matter has been remanded for decision of the writ petition afresh on merit after hearing the learned counsel for the petitioner.
3. It is contended by the learned counsel that the impugned order of dismissal of the petitioner is illegal, unlawful, coram non judice and based on mala fide; that no formal inquiry was undertaken by Personal Director AG Branch, neither the petitioner was asked to testify before any court of inquiry which is in total violation of Pakistan Army Act Rule 157 under section 78 and AR(R) 130(a); that departure from the prescribed law and rules on the subject is clear manifestation of the malice and mala fide intention of the MS Branch at the behest of the Army Authorities; that the episode of tempering of confidential service record of various officers in the Military Secretary (MS)
Branch occurred due to the misconduct, incompetency and mal-administration of the officials/staff posted over there; that no one including the petitioner had any access to the confidential record maintained in the MS Branch; that the fact of involvement of the concerned staff of the MS Branch has been admitted by the Military Secretary himself in his letter addressed to the Corps Commander dated 23.12.2000; that the confessional statement of the petitioner was extracted through duress and coercion and by maltreating the petitioner; that for his promotion to the rank of Brigadier the petitioner required evaluation of only preceding two PERs/ACRs of the years 1998 and 1999 which admittedly did not warrant any tempering in his service record and this was a sufficient proof to falsify the accusation against him but this documentary evidence was not considered deliberately and intentionally by the concerned authorities which also speaks aloud qua mala fide intention of the concerned authorities in passing dismissal order of the petitioner; that the career profile and overall performance of the petitioner throughout 25 years of his service remained enviable and there had never been any complaint of the sort ever before; that in any event hand tempering in service record of over 150 officers was discovered but only a few including the petitioner have been sacrificed at the altar of others; that it was personal efforts of the petitioner which facilitated arrest of the main absconding accused Raja Nasir who was about to fly to Dubai and this is another proof of innocence of the petitioner/his non-involvement in the alleged tempering; that the petitioner has been made scapegoat while the officials responsible for this criminal misconduct have been promoted even the main culprit Raja Nasir, Clerk of the M.S. Branch has been retired with full pensionary benefits. On the basis of above submissions the petitioner has prayed that the impugned order be declared as illegal without jurisdiction, tainted with malice and of no legal effect.
4. The Assistant Attorney General appearing on behalf of the respondent-Federation has raised two fold preliminary objections firstly that this writ petition suffers from gross laches having been filed after nine years and secondly that it is not maintainable in view of Clause 3 of Article 199 read with Article 8(3) of the Constitution of Islamic Republic of Pakistan. To elaborate his arguments on the ouster clause 3 of. Article 199 of the Constitution he contended that the petitioner has not been able to prove through any cogent evidence that the impugned order is either mala fide or corum non-judice or without jurisdiction. On merit he argued that the petitioner was found involved in tempering his service record with the active connivance of some clerical staff of the MS Branch for gaining wrongful benefits and he voluntarily confessed his guilt; that after admitting his culpability the petitioner pleaded for his premature retirement; that he had also knowledge of some other officers/officials who were equally involved in the tampering scam but he did not report the matter to the higher authorities. The learned law officer has supported the impugned order by contending that it has been lawfully passed by the competent authority under section 16 of the Pakistan Army Act with approval of the Federal Government; that appeal of the petitioner for conversion of his dismissal from service into normal retirement has also been turned down by the Authority. Lastly he forcefully argued that being a commissioned officer at the rank of Colonel the petitioner was expected to discern between inadvertent and intentional involvement in the tempering scam but he failed in doing so, therefore, any clemency in the punishment awarded to the officer was considered unwarranted upto the higher echelon of the armed forces in the overall interest of the military service which should be affirmed by this Court.
5. Arguments heard. Record perused.
6. At the very outset of arguments, the learned Asstt. Attorney General has emphatically pressed into service the ground of laches in filing this writ petition which was filed by the petitioner after 9 years of his dismissal from service. He argued that the writ petition suffers from gross laches and as such is liable to be dismissed on this score alone. During the course of his arguments he has presented a copy of the order of the Hon'ble Supreme Court of Pakistan dated 6th July 2010 passed in C.P. No,842 of 2010 whereby on appeal filed by Ex Brig. Ashfaq Ahmed who was also an accomplice of the same tampering scam, the Hon'ble Full Bench observed as under:- "The petitioner, a commissioned officer serving in the Pakistan Army in the rank of a Brigadier, was dismissed from service on 11.12.2000 on the ground of misconduct. It was not until 26.12.2009 that he filed a constitution petition under Article 199(1) (a) (ii) of the Constitution of Islamic Republic of Pakistan, 1973. The petition was dismissed on two grounds; firstly, that it suffered from laches having been filed more than nine years after petitioner's dismissal from service and secondly, that the constitution petition was barred under Article 199(3) of the Constitution as dismissal of the petitioner relating to his terms and conditions of service. This order was maintained in the Intra Court Appeal, which the petitioner has now impugned through this petition for leave to appeal.
2. We heard Col. (Retd.) Muhammad Akram ASC for the petitioner as well as Mr. Mazhar Ali Chaudhry, Deputy Attorney General, for the respondent. Undisputedly, the writ petition was filed after nine years of the petitioner's order of dismissal and no plausible explanation has been furnished for such a delay in filing the petition. This ground alone was sufficient for the dismissal of the petitioner's constitution" petition. The High Court has also rightly held the writ petition to be not maintainable in view of the clear bar under Article 199(3) of the Constitution which excludes the jurisdiction of the High Court under the said Article in matters related to the terms and conditions of the service of personnel of the Armed Forces.
3. The petition being without merits is dismissed and leave declined."
Learned Law officer further pointed out that against the aforesaid order review petition bearing No,842 of 2010 has also been dismissed vide order dated 28.03.2012. The writ petition in hand which proceeds on the same facts and circumstances is, therefore, liable to be dismissed on the sole ground of laches in view of the aforestated judgments of the Hon'ble Apex Court. Learned counsel for the petitioner has not been able to controvert the above factual position. The present petitioner was also dismissed from service along with his accomplices on 11.12.2000 and he filed the instant writ petition on 16.11.2009 i,e, after 9 years similarly as in the above referred case of Brig. Ashfaq Ahmed whose writ petition has been held to be not maintainable by the Highest Court of the Country, therefore, following the above authoritative judgment case of the present petitioner does not admit for a contrary view in the absence of any plausible explanation coming from his side for such a long delay in filing the writ petition. The writ petition in hand is liable to be dismissed on the sole ground of laches.
7. On the question of maintainability of the writ petition in view of the bar contained under clause 3 of Article 199 of the Constitution of Islamic Republic of Pakistan, learned counsel for the petitioner has attempted to bring case of his client within the exception of aforementioned provisions of the Constitution by arguing that the Hon'ble Supreme Court of Pakistan as well as this Court in a number of judgments have conclusively held that the bar contained in aforesaid Article 199(3) is not absolute and a constitutional petition is competent before this Court if the proceedings undertaken or the order passed by the Military Authorities against any member of the Armed Forces is tainted with malice, coram non judice , without jurisdiction and based on mala fide .While elaborating his submissions on this legal proposition the learned counsel made stress on the point that before passing the impugned order of dismissal of the petitioner under section 16 of the Pakistan Army Act 1952, neither any formal inquiry as envisaged in Pakistan Army Act Rules, 1957 was ever conducted nor the procedure prescribed under 269-A of the Army Regulation Rules, 1998 was resorted to as mandated under Rule 9-D of the Pakistan Army Act Rules, 1957. According to the learned counsel, departure from the above procedural rules and regulations speaks aloud qua malice and mala fide of the respondent-authorities for sacking the petitioner and as such furnishes a, lawful ground for declaring the impugned order of dismissal of the petitioner as coram non judice and having been passed without jurisdiction.
8. This Court is well cognizant of the authoritative and conclusive command that the jurisdictional ouster clause 3 of Article 199 of the Constitution 1973 is not the absolute bar and this Court always has the jurisdiction to examine any order of Military Authorities passed under Pakistan Army Act, 1952 challenged before it on the grounds of mala fides including malice in law, coram non judice and without jurisdiction. But exception to above clause 3 of Article 199 can only be taken when mala fide or malice has been specifically shown to exist on the face of record of the case and petitioner at least, prima facie, succeeds in establishing that the order impugned is either mala fide or corum non judice or without jurisdiction. For better appreciation of contentions of the learned counsel for the petitioner in this regard it would be expedient to read the provisions of ARR, 269-A ibid which is reproduced as under:- "269-A. Dismissal, Removal, Premature or Voluntary Retirement/Resignation of Officers for Misconduct etc. Procedure. The following procedure will be observed to deal with cases in which it is not practicable or desirable to convene a court martial for the trial of an officer against whom misconduct or inefficiency etc; is imputed and his retention in service is not considered to be in the interests of the Army:- a. The Chief of Army Staff may order a Court of Inquiry to investigate the matter and submit its findings together with his recommendations to the Government, for decision, or, b. The Chief of Army Staff may call upon an officer to show-cause why action should not be taken against him for his dismissal, removal or premature retirement from the service under the PAA Rules and submit the officer's explanation together with the recommendations to the Government for decision; or c. When it is not expedient either to hold a court of Inquiry or call for the officer's explanation, the Chief of Army Staff may submit a report giving all the circumstances of the case and evidence, if any available, together with his recommendations for the decision of the Government."
9. A bare perusal of clause (c) of the above reproduced Rule 269-A clearly spells out that the Authority may dispense with holding a court of inquiry or call for the officer's explanation if it is not expedient. In view of this provision of law it cannot be declared that the impugned order is mala fide and without jurisdiction for having been passed without certain prescribed procedure. When any provision of law prescribes a particular mode of action which has been duly adopted, no exception can be taken to it. The respondent-Authority has not deviated from any mandatory law and rules which would render the order coram non judice and without jurisdiction.
10. This Court to ensure substantial dispensation of justice also called for confidential service record of the petitioner for its examination in camera and noted following tampering therein:-
1. OERs Year Original Grade Tampered Garde a.1985 AA/HA/HA AA/AA/AA b.1986 AA/HA/HA AA/AA/AA c.1990 AA/HA/HA AA/AA/AA d.1992 WAA/AA/AA/AAWAA/WAA/WAA/WAA e.1994 AA/AA/AA WAA/WAA/WAA 2.Courses Course Original GradeTampered Grade a.OW (Offre Wpn) BY+ B+Y+ b.OL (Offrs (Locating) B B+(3rd Posn) c.CCC (Copy Comd Course)B B+ (1st Posn) d.RSO (Regt Svy Offr) B+ B+ (1st Posn)
11. The petitioner on the basis of above indicated tampered entries was considered in Selection Board 2/2000 and approved for promotion to the rank of Brigadier. By maneuvering alteration in his 6 Annual Confidential Reports for the years 1985, 1986, 1990, 1992, 1994 and 1995 and so also in the courses grading the petitioner raised his efficiency index by 4.07 marks (from 72.00 to 76.07 i,e, 2.08 above the Base Line). Officers having efficiency index 73.99 and above were promoted. Had the original grading in the ACRs/Courses not tampered petitioner would not have been considered for promotion in the Selection Board. UDC Nisar Ahmed of MS Branch and Stenographer Rana Nasir have got recorded their statements that they along with co-accused Hay. Maqsood Baig have tampered service record of the petitioner at his instance through a middle man Raja Maghees (a retired major) for monetary temptation. They have fully involved the petitioner in tampering of his service record and he was the real beneficiary. The petitioner's own hand written confessional statement is available on record which reads as under:- "I am extremely sorry for what all has happened. I am ashamed and feel very small. I pray that may Almighty Allah gives me strength and courage to overcome these weaknesses and guides me to become a better human being and a true Muslim. After all I am a human being and am bound to err.
Sir, in view of the above episode I request your honour to take a lenient view of my pitfalls and help me in the following options: To be inducted into Federal/Provincial cadre to safeguard my approved' promotion, to guard the name of my family and be able to educate and groom my 4 school going children.
Be adjusted in the same rank as Station Commander Nowshera preferably to be able to look after my family and continue at the same station so as to be able to visit my old, bedridden father located at Attock.
If the above options are not accepted I may please be given an honourable exit by retiring prematurely with benefits."
Though the petitioner has alleged that above confessional statement was extracted from him through duress and coercion but it does not appeal to a prudent mind for the reasons, firstly, the petitioner has failed to bring on record anything in this regard; secondly, the context / mode and tenor of the confessional statement by itself suggests that it was given voluntarily by the petitioner after the tampering scam was unearthed and he felt ashamed of his ignoble act; thirdly, the petitioner was a commissioned officer in the rank of Colonel and it was not possible that he would be coerced or subdued and maltreated to extract a statement against his wishes/interest and fourthly, why he remained mum for complete nine years and did not agitate the alleged coercion before any forum. The fact of the matter is that when the tampering scam came to surface and involvement of the petitioner stood established on record, his guilty conscience forced him to make confession of his unlawful activity. He was foreseeing the consequences of his official misconduct, however, with the bleak hope to get service benefits he made request for his pre mature retirement and tendered his voluntary confessional statement in his own handwriting and under his signatures. However, the competent authority considered his dismissal from service in the supreme interest of the Army Institution and of the nation in accordance with law.
12. Pakistan Armed Forces are a disciplined force second to none in the world. The nation takes pride in them and relies on them for the defence of its boundaries, to effectively deal with natural calamities and the menace of terrorism thrusted upon the nation by its enemies both internal and external. In order to effectively deal with its responsibilities the Armed Forces just like the other important pillar of the state Judiciary, for which honesty and being incorruptible is a sine qua non, cannot afford to have personnel occupy any position who do not fall on merit. It is a general understanding amongst the nation that all promotions in the armed forces are strictly done on merits which provides the impetus for the personnel of the forces in putting in their best abilities to be able to continue to serve the nation and to lead its various ranks and files. A deviation from meritocracy in the Armed Forces cannot be imagined as it would have enormous and far reaching implications on the structure of the forces, transcending on the state which could be detrimental for its very existence, hence a robust system for the promotion of its jawans and officers based on merit alone is in vogue. Any attempt to undermine this robust system of promotions on merit cannot and should not be ignored lightly. If the petitioner and others had prevailed in obtaining their promotions by manipulating and interpolating their service record, this would have deprived their colleagues, who were ahead of them on merit, and it would have meant that inferior personnel would have been promoted to the detriment of the ones who were better, superior and more deserving to occupy the next most important post thus it would not only have resulted in the careers of meritorious and deserving officers coming to a premature disruption but also would have been a disaster for the nation, as a wrong and incompetent person occupying the post of a Brigadier through illegal means, having not earned it, would have resulted in far reaching negative consequences for the Force and for the nation. The petitioner's appeal to the Chief of Army Staff for converting his dismissal into retirement has, therefore, been rightly turned down in view of the gravity of the offence and there is not an iota of malice against the petitioner rather in the circumstances a lenient view has been taken by the Authority.
13. The petitioner has not been able to show that the order impugned is mala fide, coram non judice or passed without jurisdiction. This Court in exercise of its Constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 cannot reappraise the evidence produced before the Competent Forum or substitute the findings which are neither perverse nor a result of lack of evidence at all. The power of judicial review under Article 199 against the conviction and sentence awarded by the Military Authorities is not equated with power of an Appellate Court.
The evidence produced cannot be reassessed or analyzed in detail to substitute any reasonable and probable conclusion arrived at by the Competent Forum of Armed Forces nor can this Court venture into the realm of merits of the case in view of the bar contained in subsection (3) of Article 199 of the Constitution.
14. In view of the above discussion, learned counsel for the petitioner has failed to establish that the impugned dismissal order of the petitioner is mala fide, corum non judice or passed without jurisdiction. The writ petition is, therefore, dismissed as not maintainable.
15.Before parting with the matter in hand I must observe that the record tempering offence has taken place partly also on account of complacency/mismanagement/maladministration of the M.S. Branch and ineffective control of the Military Secretary to safeguard and protect the confidential service record of the officers of the Armed Forces. Copies of this judgment will, therefore, be sent to the Chairman, Joint Chiefs of Staff Committee and the Chief of Army Staff who may take appropriate measures to safeguard and preserve the sanctity of the confidential record of the officers of the Army, so that such gross malfeasance may not occur again in future.