' SALEEM AKHTAR, J.---This appeal is directed against the judgment of the Federal Services Tribunal dated 2-2-1989 passed in Appeal No,795(K) of 1974, dismissing it as having abated.
2. The appellant joined the civil service of Pakistan in the year 1959 on the basis of a competitive examination. After completing the probationary period of two years he was confirmed and while he was serving in the capacity of Deputy Secretary (Establishment) to the Government of West Pakistan he was dismissed from service under Martial Law Regulation No, 58 w.e.f, 4-3-1970. Earlier he had been served with a suspension order wherein he was communicated that action was proposed to be taken against him under MLR No,58. The appellant was subsequently served with a notice under MLR No,58 on December 23, 1969, and he was directed to show cause within 7 days of the date of service as to why action should not be taken against him under paragraph 3 of the Martial Law Regulation No,58. A charge-sheet along with a separate statement setting out the details of the allegations was enclosed with the notice. The appellant submitted the reply and denied all the allegations contained in it. A confidential communication from the Headquarters Martial Law Administrator, Zone-A, was received by the appellant who was asked to appear before the Military Tribunal on 20th January, 1970. The appellant appeared on the said date and it has been alleged that no opportunity was given to him to present even the barest outlines of his defence. On 9th March, 1970, a notification was issued stating that Gen. Yahya Khan had ordered the dismissal of the appellant from service. The appellant filed a review application which has remained undisposed in spite of several reminders. The appellant then filed Constitution Petition No,1590/S/1973 but it was declared to have been abated. The appellant then filed appeal before the Service Tribunal but it was dismissed for want of jurisdiction. However, on appellant's appeal filed before the Supreme Court the order of the Tribunal was set aside and it was directed to expeditiously dispose of the appeal on merits. It seems that the appeal was dismissed for default on 24-1-1983 but it was restored on 28-7-1986. On 13-8-1982 Article 13-A was inserted in the Provisional Constitution Order by C.M.L.A.'s Order No,3 of 1982. In view of Article 13-A the appeal filed by the appellant before the Tribunal was dismissed having been abated. The appellant has challenged the judgment of the Tribunal in this appeal. It may be mentioned that one of the grounds taken by the appellant was that the order of dismissal was not passed in accordance with sub-para. 3 of para. 3 of Martial Law Regulation No,58. The Federal Service Tribunal called for the records of the case but nothing beyond the photocopy of a short order alleged to have been passed by President Yahya Khan was produced in spite of the fact that several adjournments were granted for production of the relevant documents and files of the case. Leave was granted to consider whether plea raised by the appellant was not properly considered by the Tribunal.
3. The respondent was directed by this Court to produce the files and records of the appellant's case but it has not been produced and Mr. Niaz Ahmed Khan, the learned counsel for the respondents, has stated that it has been misplaced. He has also relied on the photocopy of the order of the President which was produced before the Service Tribunal.
4. Mr. Muhammad Ali Saeed, the learned counsel for the appellant, has contended as follows:-- "(1) PCO held in abeyance certain provisions of the Constitution but adopted other provisions including Article 212 of the Constitution and, therefore, no sub-constitutional provision could be made to take away the jurisdiction conferred by the Constitution on the Service Tribunal.
(2) Article 13-A was inserted in 1982 when Service Tribunal was seized of the appeal since 1974 and as it could not be disposed of due to respondent's failure to produce the relevant record, the abatement cannot be applied to the proceeding.
(3) Martial Law Regulation and P.C.O. Had been withdrawn on 30-121985 without affording protection to actions taken under P.C.O., therefore, actions taken under it (P.C.O.) were not validated.
(4) The dismissal of the appellant was an action which was non-existent in the eyes of law. The order of dismissal was passed without complying the provisions of MLR 58. It was illegal, mala fide and beyond the scope of Martial Law Regulation No,58 and was coram non judice.
(5) In interpreting Martial Law Regulation Islamic principles of justice should be applied.
' On the other hand Mr. Niaz Ahmed Khan, the learned counsel for the respondents, contended that in view of Article 13-A of the P.C.O. The appeal had abated.
5. The entire argument advanced by Mr. Muhammad Ali Saeed is based on the ground that the action taken by Martial Law Authorities was not in compliance with the provisions of MLR No,58 as amongst others para. 3 was not complied with and no opportunity to defend himself was afforded to the appellant. The learned counsel also challenged the constitution of the Military Tribunal and further contended that in the absence of any record it is difficult to establish that any valid and proper action was taken and the photocopy produced by the respondents cannot be considered or relied upon. Article 13-A of the Provisional Constitution Order by virtue of which the appeal had abated reads as follows:-- "13-A. Validation of action taken under the Removal from Service (Special Provisions) Regulation, 1969.- --(1) All orders made and actions taken or purporting to have been made or taken, against any person under the Removal from Service (Special Provisions) Regulation, 1969, shall, notwithstanding any judgment or order of any Court, Tribunal or other Authority, be deemed to be, and always to have been, validly made or taken and --
(a) no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings whatsoever in respect of, or in any manner relating to or arising out of, such orders or actions;
(b) any such proceedings pending before any such Court or Tribunal immediately before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.LA. Order No,3 of 1982) shall abate forthwith;
(c) every judgment or order of any such Court or Tribunal given or made at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.L.A. Order No,3 of 1982) which is repugnant to the provisions of this Article shall be, and shall be deemed always to have been, null and void and of no effect whatsoever; and
(d) any person who, having been dismissed, removed or prematurely retired from service under the aforesaid Regulation, has, at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982, been reinstated into service and is holding office immediately .Before such commencement, shall stand retired from service on such commencement.
' It, inter alia, validates the action taken and orders made under Removal from Service (Special Provisions) Regulation, 1969, and any proceeding pending before any Court or Tribunal at the time of Promulgation of the Provisional Constitution (Second Amendment) to abate forthwith. It, therefore, follows that the appeal pending before the Tribunal abated on the promulgation of Article 13-A. Abatement of proceedings is destruction of pending proceeding as it closes the entire chapter and makes it non-existent without determining the controversy.
5-A. In Corpus Juris Secundum it has been stated that: "The term 'abatement' is used, with reference to pending actions or suits, to designate the result upon a suit or action, of defects which vitiate the propriety of the suit as brought, in contradistinction to the existence or the statement of a cause of action; it looks to their effect; and consequently it is ordinarily defined descriptively in terms of the effect produced, so that the definition varies accordingly as abatment at common law or abatement at equity or under codes extending equitable doctrines to all suits or actions is spoken of; thus, at common law abatement is an entire overthrow or destruction of the suit caused by defendant's setting up facts in the nature of matter in abatement; in equity, abatement is an interruption or suspension of the suit brought about by such action on the part of defendants."
6. The effect of abatement on a proceeding is destructive in nature as it completely wipes out the proceedings irrespective of the fact whether objection to jurisdiction has been raised or not. It is given effect notwithstanding the objections raised which may be legal and valid. It is, however, to be noted that the provisions which impose abatement of proceedings may kill an action but do not destroy the cause of action. It, therefore, follows that Article 13-A rendered the appeal filed by the appellant non-existent.
7. Mr. Muhammad Ali Saeed has referred to PLD 1973 SC 49, Ziaur Rehman's case, PLD 1974 SC 151, Saeed Ahmed's case, PLD 1981 SC 249, Muhammad Siddiq's case PLD 1989 SC 26, Ghulam Mustafa Khar's case. The object of referring these authorities was that if the action taken by any authority is mala fide or corum non judice the party affected by it can challenge it in the proper forum. The law in this regard has been clearly laid down specifying the jurisdiction of the Superior Courts as well as the Service Tribunal to deal with such questions. However, in the present case such considerations would be irrelevant because in order to consider whether the action is mala fide, without jurisdiction and coram non judice it would be necessary to enter into the merits of the case. At this stage we would not like to enter into such controversy or to express our opinion on this aspect of the case because the abatement imposed by Article 13-A completely washes away the entire appeal eliminating it from the surface.
8. Mr. Niaz Ahmed Khan has referred to Hidayatullah v. Federation of Pakistan and others 1986 SCM R 803. In this case the appellant was dismissed under MLR No,58 and his appeal was dismissed by the Service Tribunal on merits on 18-11-1979. Leave to appeal was granted to the appellant on 29th November, 1980, against the judgment of the Tribunal but during the pendency of the appeal Article 13-A was promulgated and it was, therefore, held that the proceedings stood abated as from the promulgation of C.M.LA. No,3 of 1982. Taking note of Article 13-A the Tribunal has rightly held that the appeal had abated. In view of this finding it would not be proper to express our opinion on the contentions raised by the learned counsel for the appellant on merits as they relate to the cause of action and the proceedings taken under MLR No,58. The appeal is, therefore, dismissed with no order as to costs.