MUHAMMAD FAHEEM WALI, J. Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following relief:- It is, therefore, respectfully prayed that instant writ petition may very kindly be allowed and the petitioner may graciously be acquitted from all the charges. Any other relief, which this Hon'ble Court deems fit and proper, may also graciously be awarded to the petitioner.
2. As per contents of the petition in hand, petitioner got retired from Pakistan Air Force (PAF), after completion of 17 years' service, and at the moment, he is running a Coaching Academy/Tuition Centre for earning livelihood. On 20.10.2019 at noon, he was present in a marriage ceremony of his close relative that suddenly, some persons of PAF police in uniform, along with 08/9 armed persons in civil dress came there and started beating and arrested him without any warrant of arrest or other legal documents and that, at the same time, other PAF police and FLU staff had also raided his house and entered there by jumping over the boundary wall and thus, disgraced his dignity, however, during search, nothing objectionable or incriminating was recovered from his house.
Besides, some officials of the PAF also reached to his Academy/Tuition Centre, from where too, they did not find anything, however, after beating two students namely Mushtaq and Shafqat in the Academy, they arrested them and took them away. On 30.10.2019, on two different occasions, his house was again raided by the PAF police and FLU without any legal search warrant. The wife of the petitioner in order to recover her husband (petitioner) approached the Hon'ble Islamabad High Court by filing a Writ Petition bearing No. 3707/2019. Notices were issued to the PAF authorities, however, later on, petitioner was handed over to FIA after his involvement in case FIR No. 48/2019 dated 19.10.2019 under sections 419, 420, 468, 471, 109, P.P.C. and sections 6(c) and 9 of the Official Secrets Act, 1923 and thereafter, he was handed over to PAF officials for court martial. The court martial, after a board of inquiry, found the petitioner guilty of charges 4th to 13th and sentenced to suffer rigorous imprisonment for life on 28.5.2020. The said sentence was then confirmed finally under the PAF Act Rule, 110 by the confirming authority through promulgation dated 10.6.2019, one copy of which, was also handed over to the petitioner, however, on 25.6.2020, the findings of promulgation dated 10.6.2020 was cancelled and new findings/sentence through promulgation dated 25.6.2020 was issued, which was totally changed vide which, the petitioner was declared guilty of all 13 charges but his punishment was kept the same. Appeal against the findings of the Court martial was preferred by the petitioner before the appellate Court but the same was dismissed without any reason, hence, the instant writ petition.
3. Arguments heard and record perused.
4. Accused/petitioner who is a Senior Technician (Ex-Snr Tech) retired has been charged to face trial on three counts under section 37(e) and further 10 counts under section 71 of the Pakistan Air Force Act, 1953. After completion of the trial, the accused/petitioner was convicted and found guilty to all the charges and as a consequence thereof was sentenced to suffer rigorous imprisonment for life.
5. Perusal of the "Promulgation" under the PAF Rule 110 dated 10.6.2020, however, reveals that the FGCM (Field General Court Martial) convicted the accused/petitioner by finding him guilty to the charges number 4th to 13th under section 71 of the Pakistan Air Force Act and punished him with imprisonment for life while at the same time found him not guilty of the charges 1st, 2nd and 3rd under section 37(e) of the ibid Act. Even his warrant of commitment dated 16.6.2020 issued under the relevant Form-G read with section 165 of the ibid Act mentioned the convict to have been duly convicted of 10 charges (under section 71, PAF Act) and in second paragraph, the punishment has been clearly mentioned as "To suffer rigorous imprisonment for life". Similarly, the form of "Appeal against conviction by Court Martial, PAF Act Rule 257" so provided by the authorities themselves dated 02.7.2020, to the petitioner for filing appeal against his conviction, mentioned at serial No. 6 of conviction to be under section 71 of PAF Act (Ten charges). But, to his utmost surprise, the petitioner was informed through the jail authorities through a letter dated 30.6.2020, that the promulgation dated 10 June, 2020 along with Form 'G' referred to above, have been amended and the previously issued promulgation under PAF Act Rule 110 has been cancelled in toto, replacing the same with a fresh promulgation dated 25 June, 2020, perusal whereof, reveals that by keeping the punishment intact the accused was also found guilty of charges 1st, 2nd 3rd, thus holding him guilty of all the 13 charges. Petitioner being annoyed by the development and his appeal being already dismissed, challenges the validity of the proceedings taken against him through the instant petition for being left with no other adequate alternate remedy.
6. General impression about the applicability of Military and other Defence related laws has, and rightly so, been considered to encompass matters relating to the Forces and applied on the Armed personnel to the exclusion of all those who are not subject to these laws including Civilians.
However, an amendment was brought in section 2 of the Pakistan Air Force Act, 1953, by adding clause (dd) vide section 3 of Defence Services Laws Amendment Ordinance, 1967, whereby a person charged of seducing or attempting to seduce a person subject to this Act from his duty or allegiance to Government or committing an offence under the Official Secrets Act, 1923, was brought within the definition of a person subject to this Act. Petitioner, though, is a non-uniformed person but by the advent of law and amendment so brought about in section 2 above, became liable to be tried and proceeded against under the provisions of the PAF Act, 1953. Therefore, since then, under the ibid amendment a civilian can be tried under the said law.
7. Next and main assertion of the petitioner pertains to the deletion of charges Nos. 2nd and 3rd and the benefit whereof could not have been taken back by the respondents, once the same was extended to the petitioner in unequivocal terms. The above-said contention has apparently been based upon the premise that the punishment provided under the charges 4th to 13th being based upon section 6 and section 9 of the Official Secrets Act, 1923, carries punishment of imprisonment for a term which may extend to two years. We are afraid, this view point is incorrect in the light of section 71 of the PAF Act, which is reproduced herein for convenience:-
71. Civil offences.---(1) Subject to the provisions of section 72, 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 [dealt with under this Act] and, on Conviction, be punishable 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 [imprisonment for life], he shall be liable to suffer any punishment, ***, assigned for the offence by the aforesaid [law or such] less punishment as is in this Act mentioned] :
(b) In any other case, he shall be liable to suffer any punishment, ***, assigned for the offence by any law in force in Pakistan, or to suffer short imprisonment for such less punishment as is in this Act mentioned] 1:] [Provided that, where the offence of which any such person is found guilty is an offence liable to hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law]".
(2) The powers of a court-martial [or an officer exercising authority under section 82 or section 86 to charge] and to 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 Air Force offence.
[(3) 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 (dd) 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 provisions of this section shall have effect accordingly.]
8. Perusal of the ibid section of law reveals that punishment provided to a person under subsection (1)(a) is death, imprisonment for life and shall be liable to suffer any punishment, assigned for the offence by the relevant applicable law. Subsection (3) of section 71 starts with a non obstante clause that gives an overriding effect not only to the provisions of this Act but more particularly to this section 71, over all other laws if a person become a subject to this Act by reason of his being getting accused of an offence mentioned in clause (dd) of section 2 of this Act. As discussed in earlier part of this judgment, clause (dd) of section 12 categorically include, offences under the Official Secrets Act, 1923. Clause (dd) of section 2 of the Act is reproduced for convenience:- [(dd) persons not otherwise subject to Air Force law 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 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;]
9. Conjoint effect of the abovesaid narration would bring us to the only conclusion that an accused when once become a subject to this Act, then no matter, though, he has been charged for civilian offences, that might carry a lesser punishment, but whenever he is tried under the PAF Act, then the punishment so provided would enhance to death, or imprisonment for life in addition to the punishment of imprisonment so provided under the relevant law. In the present case, the accused had been charged under sections 6 and 9 of the Official Secrets Act, 1923 that carries a punishment or 2 years but when the same sections of law are read with section 71 and clause (dd) of section 2 of the Pakistan Air Force Act, 1953, then the punishment of 2 years would enhance to death or imprisonment for life, in addition to the punishment of imprisonment for 2 years provided under sections 6 and 9 of the Officials Secrets Act, 1923. In this view of the matter, the hypothesis that petitioner had earlier been convicted and punished to suffer imprisonment for two years is misconceived and belied by the record and law on the point. Guidance is being sought from the case laws reported as:- PLD 2007 SC 405 PLD 1975 SC 506 PLD 2021 Peshawar 135
10. Even otherwise, the argument about the petitioner being awarded lesser punishment is based upon a mistake of fact, though the FGCM authorities have tried to correct and rectify an error done while pronouncing the promulgation under PM Rule 110 but the mistake is apparent on the face of the record as the accused/petitioner had been mentioned to have been awarded punishment of imprisonment for life in each and every document annexed with petition. Had the intention been otherwise, then, the punishment so provided would have been imprisonment for upto 02 years, so provided, under section 6 and 9 of the Official Secrets Act, 1923. Therefore, the corrective measures adopted by the PGCM authorities by holding the petitioner to have been convicted on all 13 counts are acceptable.
11. Last but not the least, the petitioner had taken the plea of mala fide but we are afraid, keeping the facts and circumstances of the case into account, such plea would also fail to come to his rescue insofar as, the initial accused namely Abdur Rehman, Muhammad Tayyab, Abu Bakar Siddique and Muhammad Safdar had all been tried under the normal Criminal Courts after being booked in FIR No.48/19 dated 16.10.2019 of Police Station FIA/ACC, mainly because their roles were different to that of the petitioner coupled with the fact that their role, so played, did not bring their person within the definition of the term 'subject' as mentioned in clause (dd) of section 2 of the PAF Act, 1953, that has already been elaborately explained in the earlier part.
12. As to the argument regarding other co-accused namely Senior Technician Yahya and Junior Technician Muhammad Noumani to have been charged under section 65 of the PAF Act, that carried lesser punishment would also not advance the plea of mala fide as the said section of law is purely meant for the Defence Officials and the petitioner could not be tried under that section.
Similarly, a careful perusal of section 37(e) and section 71 (under which the petitioner has been tried with) clarifies that the co-accused could not be tried under those sections either.
13. We are also mindful of the bar contained in Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, whereby the Tribunal established under a law relating to Armed Forces of Pakistan has been specifically excluded from the definition of the term 'person'. On this score alone, any order passed by any such authority would not be amenable to writ jurisdiction.
14. For the reasons stated above, this petition being devoid of any merits is dismissed.