' I have heard Mr. Mohammad Bashir Awan Advocate for the respondent and Mr. Wasiullah Qureshi Advocate for the applicant.
2. Learned counsel for the respondent has submitted that this applicant has also been convicted by Summary Military Court for the same charge of misconduct on which he was dismissed from service after holding necessary enquiries. Accordingly, learned counsel submits that this application is now not maintainable and is to be dismissed on this score. He has placed reliance on 1984 PLC 138. Mr. Wasiullah Qureshi on the other hand, submits that the conviction by the Military Court would not affect the maintainability of this application for the simple reason that the conviction is on some other consideration while the dismissal is to be recorded after complying legal formalities and which formalities have not been fulfilled, in the instant case. Learned counsel accordingly submits that since as per the applicant the enquiry was held ex parte without giving any opportunity to the applicant to defend himself the dismissal is to be set aside notwithstanding the conviction by the Military Court. Learned counsel has placed reliance on 1980 PLC 969, 1982 PLC 1002 and 1983 PLC 1084.
3. I have considered the arguments and also referred to the authorities cited at the bar. In my humble view the authorities referred to before me are not directly on the point in issue. However, the fact remains that this applicant was charged for misappropriation, embezzlement and so after necessary enquiry the applicant was dismissed from service. For the same embezzlement or misappropriation criminal proceedings were also initiated against him and finally Special Military Court recorded conviction upon the applicant finding him guilty of the said embezzlement. In this way, even if the enquiry proceedings were not strictly in accordance with law as pleaded by the applicant but keeping in view of the general principles enunciated in the authorities referred to above and more particularly Supreme Court view referred to in 1984 PLC 138. I am of the considered opinion that once the applicant having been convicted by a competent Court of law for the same charge on which the applicant has been dismissed by the respondent he would not be permitted by law to question his dismissal through these proceedings unless of course his conviction is set aside by any superior forum. Accordingly his application under section 25-A of I.R.O. 1969 is hereby dismissed but he would be at liberty to approach this Court again by serving a fresh grievance notice on the respondent in accordance with the provisions of I.R.O., if at any stage his conviction is set aside and he is acquitted of that charge. In that event his grievance will not be treated as time-barred, as has rightly been conceded by Mr. M. Bashir Awan learned counsel for the applicant.