' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant, Muhammad Hassan, while working as Assistant Postmaster-General, was involved in an embezzlement case which was reported to the Police and was registered at F. I. R. No, 201 of 1979. He was tried by the Summary Military Court No, 9 and by order, dated 26th April, 1980 was convicted and sentenced to undergo six months' R. I. As a result of this conviction, the appellant, by order dated 10th July, 1980. Was dismissed from service under rule 8 of the government servants (Efficiency and Discipline) Rules?.
2. The appellant filed a review petition before the Martial Administrator Zone against his conviction and sentence. The petition was accepted and the said conviction and sentence were set aside by order dated 30th July, 1981.
3. Another case of embezzlement was also pending against the appellant which was registered with the Police at F. I. R. 178 of 1979. In this case, the appellant was tried by Special Military Court No,
1. He was convicted and sentenced to undergo one year's R. I. By order dated 7th October, 1980, which sentence was to take effect from 24th June, 1980. This conviction was sought to be set aside by the wife of the appellant by submitting a mercy petition to the Martial Law Administrator Zone 'A'. The said Martial Law Administrator accepted the petition to the extent that while the sentence already undergone was upheld, the remaining part of the sentence was remitted. This was done by order dated 2nd November, 1980.
4. Another petition was filed by the appellant to the Martial Law Administrator Zone on 15th Septement, 1981 for pardon. The said Martial Law Administrator granted the pardon which was communicated to the appellant and the Postmaster-General by letter, dated 11th November, 1981.
Since the interpretation of this letter is material, we reproduce the same :- {{TABLE TEXT}} HEADQUARTER MARTIAL LAW ADMINISTRATOR Karachi, 11th. November, 1981 To : Mr. Muhammad Hassan, Senior Postmaster, 75/K-2, P.F.C.R.S., Karachi.
Info : The Postmaster-General, Southern Circle, Karachi.
Subject : Mercy Petition : {{TABLE TEXT}} ' I am to invite your attention to the mercy petition, dated 15th September, 1981 addressed to Martial Law Administrator, Zone 'C', Karachi. In exercise of his powers as authorised under the law, M. L. A. Is pleased to grant pardon under section 143 of Pakistan Army Act in your case. It is further clarified under para. 2 (ii) of note to the said section that A pardon takes away the conviction, and when a pardon has been granted the record of the conviction must be removed from the pardoned person's conduct sheet and will not be provable against him should he be again tried by Court Martial and convicted of any offence."
2. Info addressee only : ' In view of the clarification under para. 2 (ii) of the note of section 143 of the Pakistan Army Act, the petitioner is entitled to get all the benefits of the service. Forwarded for your further necessary action please (Sd.) Major for Martial Law Administrator (MUHAMMAD IBRAHIM),"
5. On obtaining the pardon, the appellant made a representation to the Director-General, Post Offices for reinstatement on 12th November, 1981. This representation was rejected on 3rd June, 1982. The appellant then made a petition to the Chief Martial Law Administrator through proper channel on 15th June, 1982. This petition was withheld and the appellant was informed about it on 7th March, 1983. Thereafter, the present appeal was filed before the Tribunal on 4th April, 1983.
6. The learned counsel for respondent has raised two preliminary objections. The first is that the appeal is not competent of the reason that order of dismissal dated 10th July, 1980 was not departmentally challenged before coming to the Tribunal. It was contended that under proviso (a) to section 4 (1) of the Service Tribunals Act, an appeal to the Tribunal cannot be made unless a departmental appeal or representation is filed against the impugned order. The second objection is that the appellant having been dismissed on 10th July, 1980, the appeal filed on 4th April, 1983 is hopelessly barred by time.
7. It has rightly been argued by Mr. Manzoor Ali Khan, Advocate appearing on behalf of the appellant that the present appeal is not against the order of dismissal passed on 10th July, 1980, inasmuch as that dismissal in view of the conviction of the appellant recorded on 26th April, 1980 was quite in order. According to him, the cause of action accrued to the appellant when he was granted pardon and he representation that as a result of pardon, he was entitled to re- instatement. As already observed, the first conviction was set aside and in the second conviction the sentence was partly remitted and subsequently pardon was granted on 11th November, 1981. It was on the ground of that pardon that the appellant got a cause of action to make representation and be did so on 12th November, 1981 only one day after the grant of pardon. This representation having been rejected, the appellant sought the departmental remedy by way of appeal to the Chief Martial Law Administrator, which was withheld and the appellant was informed on 7th March, 1983. Within one month, the appellant filed the appeal which is obviously within time. The learned counsel for respondents, however, urges that an appeal to the C. M. L. A. Is not provided by law and that if the appellant's stand is that the cause of action accrued to him on the withholding of his petition, then the said petition was incompetent as it should have been made to the President and not to the Chief Martial Law Administrator.. We find little force in this argument. The office of the C.
M. L. A. And the President were held by the same person. The appellant made the appeal through proper channel and it was for his head of department to send the appeal to the person competent to dispose it off. In our opinion, the objections of competency of appeal and limitation have no substance. We hold that the appeal is competent and also within time.
8. The learned counsel for the appellant argued that the conviction was recorded and sentence was imposed upon the appellant by the Court martial. In the mercy petition, a pardon was granted under section 143 of the Pakistan Army Act, as is evident from the letter reproduced earlier. It was also stated that the authority passing the order specifically observed that a pardon takes away the conviction and when a pardon has been granted, the record of the conviction must be removed from the pardoned person's conduct sheet and will not be provable against him should he again be tried by a Court martial and convicted of any offence, It was also pointed out that in para. '2 of the above letter, it was specifically mentioned that in view of the clarification contained in the letter, the petitioner is entitled to get all the benefits of services. In other words, it is the stand of the learned counsel that the Martial Law Administrator not only pardoned the appellant, but directed that in law the appellant was entitled to get all the benefits of service. He contends that it was incumbent upon the authorities to re-instate the appellant on the issuance of the aforesaid letter of the Martial Law Administrator.
9. We have heard the learned counsel for respondents also on the issue of pardon. Para. 2 of the letter of 11th November, 1981 does not give any direction to the Postmaster-General to re-instate the appellant. It only gives an interpretation of section 143 of the Pakistan Army Act which may or may not be correct. No doubt, the effect of pardon even otherwise washes away the stigma and make the person pardoned a new man, but this does not mean that whatever civil right has been taken away from him is also restored. This Tribunal has in an earlier case taken the view that when pardon is granted, the departmental action taken on conviction and sentence must be set aside.
However, the matter was set at rest by the Supreme Court subsequently in the case of Agha Aqeel Nasir v. Inspector-General of Police, Quetta . Para. 4 of that judgment explains the legal position.
Incidentally, the appellant's case is identical with that of Agha Aqeel Nasir. We reproduce para. 4 of the judgment as under :- "On the question of the effect, of pardon, this Court had in Muhammad Asghar v. Government of Sind PLD 1977 SC 212, declared that a free pardon does not restore a convicted person to public office forfeited by or in consequence of conviction, though it may remove disability for a fresh grant of employment. Learned counsel vainly sought to distinguish this authority upon the submission that in the cited case, the pardon had been granted by the Governor and that there had been no direction for re-instatement whereas in the present case such direction had been issued. Learned counsel could not deny that on 24th Febuary, 1973 when the Governor in the cited case had granted pardon, he was possessed of the powers as a Zonal Martial Law Administrator. It is also not correct that in the present case a direction had been given to re-instate the petitioner, for, all that had been said in the letter, dated 19th July, 1971 was that the Inspector-General of Police may proceed with the matter of his re-instatement as per service rules."
10. In view of the authoritative decision of the Supreme Court on the specific subject, we cannot accept the stand taken by the appellant as a result of pardon, the appellant is entitled to re- instatement.
11. The result of the foregoing discussion is that this appeal is dismissed with no order as to costs. 1984 SCMR 788 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.