' Tehsin Miran Gilani and Sultan Haider petitioners have moved for the issuance of a .Writ of mandamus under Article 199 of the Constitution of Pakistan directing the Chairman, Central Board of Revenue, Government of Pakistan, the respondent for reinstating them in service, in view of the orders issued by the Martial Law Administrator and instructions by the Chief Martial Law Administrator, in the following circumstances:- ' The petitioners along with other Customs Inspectors, on a raid conducted at Islamabad Airport on the night intervening 6/7th January, 1981 were found to be indulging in corruption/malpractices, were tried by Summary Military Court No,52 under Martial Law Order 77 re' ad with section 5(2) of the Prevention of Corruption Act, convicted and sentenced as under:-- ' Tehsin Miran Gilani One year R.I. 15 lashes and a fine of Rs,1,50,000 ' Sultan Haider One year R.I. 15 lashes and a fine of Rs, One lac.
' On review the Deputy Martial Law Administrator reduced their sentences and on mercy petition to the Martial Law Administrator/Governor they were granted pardon under section 143 of the Pakistan Army Act 1952. The M.LA. Was also pleased to direct that they should be reinstated in service. Having failed to procure the implementation of the said direction, they came up with the present writ petition on 12-3-1986. However, on a summary having been submitted to the Prime Minister the President was advised on 3-8-1985 that they be not reinstated. The President approved the same on 6-4-1985.
2. Learned counsel for the petitioners contended that a valid order under the law then prevailing was there m favour of the petitioners which was not being implemented so they had no other remedy but to approach this Court in the constitutional jurisdiction for the implementation of the same. There seems to be no valid order in favour of the petitioners. The petitioners were tried by the Summary Military Court and sentenced. Summary Military Courts were authorised to be set up by a Martial Law Administrator under Article 6 thereof while under Article 2 ibid the Military Court (including a Summary Military Court) was vested with the power and jurisdiction to try and punish any person for offences under Martial Law Regulations, Martial Law Orders or under any taw for the time being in force. The power of pardon in the case of conviction by the Martial Law Courts is provided in section 143 of the Pakistan Army Act, 1952. Pardon may be granted by the Federal Government or the Chief of the Army Staff or any officer not below the rank of Brigadier, empowered in this behalf by the Chief of the Army Staff. Pardon, if granted, would wash away the conviction and the sentence. But the question of continuance in service or re-instatement is certainly beyond the scope of section 143 unless of course the dismissal or removal from services was a part of the sentence imposed. The admitted position is that the petitioners were not removed from service by and under their order of conviction by the Summary Military Court, rather as a consequence thereof they were proceeded against and dismissed under the Efficiency and Discipline Rules 1975 framed under the Civil Servants Act 1974. The order of reinstatement by the Martial Law Administrator was, therefore, dearly beyond his jurisdiction under section 143 of the Army Act or M.L.0.77. It was perhaps in view of this legal position that letter No,57/29/(1)
Ajaag/C.M.LA! Dated 27th August, 1984 was issued by the C.M.LA.'s Secretariat to all the five Zonal Martial Law Headquarters. However, vide letter No, 57/291(1) Ajaag/C.M.LA. Dated 25-9-1984 the instructions issued vide the letter of 27th August, 1984 were reviewed and direction given that if a person is directed to be reinstated in service by a Martial Law Administrator while granting pardon, the direction be implemented. It is this letter which has been relied upon by the learned counsel for the petitioners to strengthen his contention that there was a valid order by Martial Law Administrator. As observed above, under section 143 of the Army Act or M.L.O.77 the pardon could relate only to the conviction and the sentences but not to the service matter of an accused even if duly pardoned. The Chief Martial Law Administrator in the whole legal domain and a Martial Law Administrator in his zonal sphere could have made any law (Martial Law Regulation or Martial Law Order or even a simple Order) but unless the legal intention in the form of Martial Law Regulation or Martial Law Order was clearly expressed, or the instruction was in consequence of some legal document i,e, Martial Law Regulation or Martial Law Order or any other law of the land, no advantage could be taken of a simple instruction issued by the C.M.LA. Secretariat. In the petitioners' case there is no such legal force in the letter of 25th September, 1984.
3. Learned counsel invited the attention of the Court to Chief Martial Law Administrator's Order No,10 which reads:- "(a) If any question arises as to the interpretation of any Martial Law Regulation or a Martial Law Order, it shall be referred to the Martial Law Authority issuing the same for decision and the decision of such Martial Law Authority shall be final and shall not be questioned in any Court, Tribunal or other Authority, including the Supreme Court and a High Court.
(b) If any question arises as to the correctness, legality or propriety of the exercise of any powers or jurisdiction by a Special Military Court or a Summary Military Court or a Martial Law Authority or any person deriving powers from a Martial Law Authority, it shall be referred to Chief Martial Law Administrator whose decision thereon shall be final and shall not be questioned in any Court, Tribunal or other Authority including the Supreme Court and a High Court."
' He built up the argument to say that instruction issued under the letter of 25th September, 1984 amounted to an interpretation of a Martial Law Order and so was to be accepted as final and could not be called in question in any Court including the High Court and the Supreme Court. Had it been a question of interpretation of a Martial Law Regulation or Martial Law Order the argument would have carried some force but no question of interpretation of a Regulation or Order was involved nor was any referred to in the above mentioned letter. So far as clause (b) or Order No,10 is concerned, after the lifting of Martial Law and the occupation of the constitutional field by the Constitution of 1973 there is no question of the correctness, legality or propriety of the exercise of any power of jurisdiction by the Summary Military Court to be referred to the Chief Martial Law Administrator for his final decision. The order of reinstatement having been passed not under any legal documenter in the C exercise or purported exercise of any power derived from any Law, Martial Law Regulation or Martial Law Order, the same cannot be ordered to be implemented.
4. There is another aspect of the case. As observed above, the petitioners were dismissed under the Efficiency and Discipline Rules by the Board of Revenue i,e, the Federal Government. So only the Chief Martial Law Administrator/President or the competent authority of the Federal Government could have ordered the reinstatement of the petitioners. The Services of the Federation were beyond the control of Zonal Martial Law Administrators. There is no such order in favour of the petitioners.
5. Learned counsel further argued with reference to Sardar Khan's case 1985 SCMR 1483 to canvass the point that the pardon having been granted by the Martial Law Administrator validly the dismissal called for review. The argument is forceful so far as it goes but that question must be taken up by the petitioners with the competent authority under the Efficiency and Discipline Rules and in case of being dissatisfied, to approach the Federal Service Tribunal. Learned counsel has informed that Tehsin Miran petitioner having failed with the Government had moved the Service Tribunal. The most proper and efficacious remedy before the Government and then before the Federal Service Tribunal is available to the petitioners, so it is not appropriate to grant any relief in the exercise of Constitutional jurisdiction.
' The writ petition is, therefore, dismissed in limine.