1. SAIDUZZAMAN SIDDIQUI, J.---The abovementioned five Constitutional Petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be called as the Constitutiononly) have been filed before this Court directly to challenge the validity of the arrest, detention and trial of five military officers by a Field General Court Martial (F.G.C.M.) convened under the provisions of Pakistan Army Act, 1952 (hereinafter to be called as the Actonly). Constitution Petition No,1 of 1996 has been filed by Mrs. Shahida Zahir Abbasi, wife of the accusedofficer, Major-General Zahirul Islam Abbasi, Constitution Petitions Nos.7 and 9 of 1996 are filed by Brigadier Mustansar Billah and Colonel Anayat Ullah Khan, the two accused officers in the case, Constitutional Petition No,8 of 1996 is instituted by Muhammad Nawaz father of accused Colonel Muhammad Azad Minhas and Constitution Petition No,11 of 1996 is lodged by Mrs. Nayyar Hamid wife of Lt.-Col. Dr. Muhammad Hamid. In addition to these five petitions another Constitution Petition No,12 of 1996 was also filed by a Civilian Qari Saifullah Akhtar to challenge his arrest and detention by the Military Authorities.
2. Notices were issued in all these petitions to respondents (except President of Pakistan) and the Attorney-General for Pakistan.. The respondents in response to the notices submitted their reply in all the petitions and denied allegations of wrongful arrest, torture and violation of fundamental rights of the petitioners or violation of any of the provisions of the Act, or the Army Act Rules or Army Regulations. However, in respect of Qari Saifullah Akhtar and Lt.-Col. Muhammad Hamid, the respondents in their reply stated that these two persons were not under any kind of detention or arrest as they were not the accused in the case. The learned counsel for Qari Saifullah Akhtar and Lt.-Col. Dr. Muhammad Hamid, however, disputed the assertion of respondents that Qari Saifullah Akhtar and Lt. Col. Dr. Muhammad Hamid were not under any kind of arrest or restraint, by the Army Authorities. In this background when the matter came up before the Court on 3-3-1996, following order was passed in open Court:-- "According to the comments filed by the respondents in the case of Mrs. Nayyar Hamid, Col. Dr. Hamid and Qari Saifullah are not tried as accused in this case. It is also stated that they are not in the custody of the Army, at present. Both Col. Hamid and Qari Saifullah are directed to appear in person before this Court tomorrow to verify whether they are in custody or not. The petitioner is directed to convey this order of the Court to these persons. The above direction is without prejudice to the contention of Attorney-General that this Court has no jurisdiction to hear these petitions.
3. Adjourned to 4-3-1996."
4. In pursuance of the above order both Qari Saifullah and Lt.-Col. Dr. Muhammad Hamid appeared in Court on 4-3-1996. After hearing the Judge Advocate-General and Qari Saifullah Akhtar, Petition No,12 of 1996 was disposed of as follows:-- "Brig. Muhammad Amin J.A.G. Is present. He makes a statement that Qari Saifullah Akhtar, who is present in Court, had been released before Eid on 20th February, 1996. He further states that no condition is attached to his release. Qari Saifullah Akhtar also states that he is no more under the custody of the Army and free to move about.
5. In view of the statement of Judge Advocate-General, the petition filed by the petitioner has become infructuous and same is disposed of accordingly."
6. Lt.-Col. Muhammad Hamid on appearance in Court, however, insisted that he was still under arrest and restraint by the Military Authorities while Judge Advocate-General made a categorical statement in Court on behalf of military authorities that he was not under any kind of restrain. In view of the position taken by Lt.-Col. Dr. Muhammad Hamid, Petition No,12 of 1996 was also heard along with other petitions.
7. Before dealing with Constitution Petitions bearing Nos. 1, 7, 8, and 9 filed by Mrs. Shahida Zahir Abbasi wife of Maj.-Gen. Zahirul Islam Abbasi, Brig. Mustansar Billah, Muhammad Nawaz father of Col. Muhammad Azad Minhas and Col. Anayat Ullah respectively who were being tried by the F.G.C.M., it would be appropriate to dispose of Petition No,1 of 1996 which relates to Col. Dr. Muhammad Hamid as according to respondents, he is neither an accused in the case nor he is under any kind of detention or arrest. In Petition No,11 of 1996 filed by Mrs. Nayyar Hamid wife of Lt.- Col, Muhammad Hamid, it is alleged that Lt.-Col. Dr. Muhammad Hamid was taken away from his office in H.Q. 10 Corps by some Military officer of- S.I.B. Without disclosing any reason. He was later informed that he was arrested on the instruction of then C.O.A.S. On suspicion of being involved in the case pertaining to Brig. Mustansar Billah. He suffered heart attack while in detention and was, therefore, admitted to Armed Forces Institute of Cardiology, wherefrom he informed his wife (petitioner) on 1-10-1995 about his detention and arrest. He was discharged from hospital on 4-10- 1995 and shifted to his residence where he was kept under arrest. He was -again shifted from the residence to a mess on 14-10-1995. He was allegedly tortured by S.I.B. Personnels and was compelled to make statement during his detention on 6-11-1995. Since then he was under detention and was again admitted to hospital on 20-1-1996. In the end, prayer is made for directing his immediate release and grant of such other reliefs as he may be found entitled to in the facts and circumstances of the case. In reply to these allegations, the respondents filed the following reply:-- "(1) Preliminary objections. Lieutenant-Colonel Dr. Muhammad Hamid, the petitioner's husband is subject to the Pakistan Army Act (PAA), 1952. If the officer had felt himself aggrieved he should have lodged a complaint to the Federal Government as laid down in PAA Sec.
168. No violation of fundamental rights has taken place, as such the petition is not maintainable under Article 184(3) of the Constitution.
(2) It is stated that the petitioner's husband was required in connection with the investigation of case against the four accused officers. The allegations of his surreptitiously and deceptively having been taken away, abduction, torture or violation of any of his rights under the Constitution are totally denied. The officer is not under any kind of custody. He availed 19 days casual leave during December, 1995 and January, 1996. He is admitted in AFIC, Rawalpindi, and is at liberty to go and reside with his family after his discharge from the hospital. Even now the members of his family including the petitioner have free access to him, like any other patient in the AFIC.
(3) It is prayed that, in view of the above, the petition being baseless may be dismissed."
8. When appeared in Court on 4-3-1996 pursuant to the order of the Court dated 3-3-1996, Lt.-Col. Muhammad Hamid, repeated the allegations made in the petition. He, however, admitted that he was twice granted leave during the alleged period of his detention. Annexure 'Dto the petition filed by the petitioner clearly shows that the name of Lt.-Col. Muhammad Hamid appears as prosecution witness No,10 in the case and he is not treated as an accused. The Judge Advocate- General (J.A.G.) on behalf of respondents, categorically stated in Court on 4-3-1996, that Lt.-Col. Muhammad Hamid is not an accused and he is neither under arrest nor any kind of detention. The J.A.G. However, added that as Lt.-Col. Dr. Muhammad Hamid is a witness of prosecution in the case he is presently attached with Artillery Centre, Attack C.M.H.. And under the rules he cannot leave the place of his posting/attachment without permission of the competent authority. Lt.-Col. Dr. Muhammad Hamid did not dispute his present attachment with Artillery Centre, Attocic C.M.H. In these circumstances, it cannot be argued that Lt.-Col. Dr. Muhammad Hamid is either under arrest or any kind of illegal restraint by the Army Authorities. Since Lt.-Col. Dr. Muhammad Hamid is presently neither under arrest nor under detention, therefore, the reliefs claimed in the petition cannot be granted to him. Constitution Petition No,11 of 1996 is, accordingly, dismissed as not maintainable.
9. I will now take up the remaining four Constitution Petitions Nos.1, 7, 8 and 9 of 1996 which relate to Major-General Zahirul Islam Abbassi, Brigadier Mustansar Billah, Col. Muhammad Afzal Minhas and Cal. Anayatullah Khan respectively, who. Are being proceeded against before teh F.G.C.M.
10. Convened by the Commander Rawalpindi Logistic Area. The learned Attorney-General challenged the maintainability of these petitions before this Court on the following grounds:--
(1) That proceedings before a Court Martial are not amenable to the jurisdiction of any Court, including the Supreme Court, in view of the provisions of Article 8(3) of the Constitution, and section 133 of the Act;
(2) That the jurisdiction exercised by the Supreme Court under Article 184(3) of the Constitution is analogous to the power available to the High Court under Article 199 of the Constitution and therefore, Supreme Court cannot pass any order in relation to a person who is for the time being is a member of the Armed Forces of Pakistan or is subject to Army Act in view of sub-clause (3) of Article 199 of the Constitution;
(3) That the grievance made in the present petitions are in the nature of alleged procedural irregularities for which remedies are available to the aggrieved officers by way of revision and appeal under the Act and as such these cases are not fit to be entertained under Article 184(3) of the Constitution;
(4) That the trial of the accused officers having commenced before a competent Tribunal, this Court will not interfere with the proceedings of trial and allow it to reach its logical end, leaving the parties to have recourse provided under the Act; and
(5) That in any case, the contentions raised in the present petitions relate tcj grievances of individual nature which cannot be entertained under Article 184(3) of the Constitution as the two jurisdictional requirements to take cognizance in the matter, namely (i) existence of a question of 'public importanceand (ii) involving enforcement of any of the 'Fundamental Rightsconferred by Chapter I of Part II of the Constitution, are totally absent in the present cases.
11. The learned counsel for the petitioners on the other hand, contended that the initial arrest of the persons accused in the case and their subsequent detention and trial by the F.G.C.M. Are not only violative of the provisions of Articles 9, 10 and 14 of the Constitution but they are also against the provisions of the Act for the following reasons:--
(1) That the accused were neither shown nor given any warrant or order of arrest at the time of their arrest nor they were informed by the grounds of their arrest when they were into custody by the personnels of S.I.B.
(2) That in contravention of Article 10(2) of the Constitution, the accused persons were not produced within 24 hours of their arrest before any Magistrate or any other officer competent to grant their remand.
(3) That the accused persons were subjected to worst kind of torture after their arrest by the S.I.B.
12. Personnels to extract confessions which amounted to gross violation of the provisions of Article 14 of the Constitution.
(4) That the trial against the accused persons has been vitiated on account of bias of the convening authority who is a subordinate of the present Commanding Officer, 10 Corps. The Commanding Officer, 10 Corps is the same officer who investigated the case against accused persons and arrested them in his capacity as Director-General, Military Intelligence and the convening order clearly states that the sentence will be confirmed by the convening officer or his superior.
(5) That the convening of Field General Court Martial (F.G.C.M.) instead of General Court Martial (G.C.M.), is mala fide as in time of peace, persons are generally tried by G.C.M. And not by F.G.C.M.
13. Which is convened only at the time of war and at places where officers in sufficient members are not available.
(6) That the trial of the accused persons by F.G.C.M. Instead of G.C.M. Is otherwise prejudicial to the accused persons and amounts to denial of a fair trial as all members of F.G.C.M. Except its President are junior in rank to one of the accused who is a Major General, Whereas if accused would have been tried by G.C.M. All its members including its President would have been officer not below the rank of Major-General. Besides the procedure of trial before F.G.C.M. Is less favourable to accused as compared to the procedure followed in trial by G. C .M .
(7) That all the prosecution witnesses in their summary of evidence have admitted that they were subjected to torture before recording of the summary of evidence and as such trial of accused persons on the basis of evidence which has been extracted through torture, is violative of the fundamental rights of the accused to get a fair trial.
(8) That the holding of the proceedings of F.G.C.M. In camera is in violation of the rights of the accused, who are entitled to be tried in an open Court under the Pakistan Army Act/Rules.
(9) That the accused officers have been denied illegally the copies of the statements on the basis of which they have been charged in the case which has greatly prejudiced their defence in the case. This action of respondents also amounted to the denial of a fair trial to accused persons.
(10) That the change in the command of accused persons is mala fide and contrary to provisions of section 4 of the Act and para. 77 of the Army Regulations (Instructions) (AR-I); and
(11) That the accused officers cannot expect a. Fair and just trial before F.G.C.M. In the present hostile atmosphere created against them as a result of deliberate and sustained propaganda on electronic and print medias, immediately after their arrest before commencement of the trial, by the highest functionaries of the State describing them as misguided fundamentalist conspirator who planned to do away with the highest political and military leadership of the country including their families and to grab power by overthrowing the Constitutional .Set-up. These actions of respondents amount to prejudging and prejudicing the trial of the accsued officers."
14. Before considering other contentions in the case, it will be appropriate to deal with objections of learned Attorney-General relating to the jurisdiction of this Court in the present cases. The learned Attorney-General pleaded complete ouster of jurisdiction of all Courts in respect of proceedings and orders of a Court Martial under the Act. The learned Attorney-General further contended that besides, provisions barring jurisdiction of all Courts in respect of proceedings and orders of Military Tribunals under the Act, the Constitution also prohibited passing of any order by the superior Courts in relation to a person who is a member of Armed Forces or who is for the time being subject to any law relating to Armed Forces or in respect of any action taken in relation to him as a member of Armed Forces or subject to such laws.
15. According to learned Attorney-General, the prohibition on the powers of Courts to take cognizance of a case relating to proceedings or orders passed by a Military Tribunal or in respect of a person who is member of Armed Forces of Pakistan or who is for the time being subject to Military Laws, is dual in nature. One under the Act and the other under the Constitution. To support his above contention, learned Attorney-General relied on section 133 of the Act and Articles 8(3) and 199 of the Constitution. Section 133 of the Act relied by the learned Attorney-General reads as follows:-- "133. Bar of appeals.--No remedy shall lie against any decision of a Court Martial save as provided in this Act, and for the removal of doubt it is hereby declared that no appeal or application shall lie in respect of any proceedings or decision of a Court Martial to any Court exercising any jurisdiction whatever except as provided for in section 133-A."
16. The above provision of law relied by the learned Attorney-General is contained in sub- Constitutional legislation. It is well-established principle of law that a provision barring jurisdiction of Courts contained in a sub-Constitutional enactment, however, expressly and widely worded, cannot affect or take away the jurisdiction of superior Courts conferred on them under the Constitution. It is, therefore, quite clear that the bar of jurisdiction contemplated under section 133 of the Act can neither affect nor takes away the powers and jurisdiction exercised by this Court under Article 184(3) of the Constitution.
17. The learned Attorney-General has, however, also relied on Articles 8(3) and 199(3) of the Constitution to contend that even under the Constitution the jurisdiction of this Court has been barred when the matter related to 'a person who is either a member of the Armed Forces of Pakistan or is for the time being subject to the provisions of the law applicable to Armed Forces ..Or the matter related to an action taken against such a person.
18. Article 8 of the Constitution relied by the learned Attorney-General reads as follows:-- "8.--(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to--
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the--
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First Schedule into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
19. Explanation.--If in respect of any law Majlis-e-Shoora (Parliament) is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended exept as expressly provided by the Constitution.:'
20. Clause (1) of Article 8, ibid, declares all laws, usages and customs having force of law, which are inconsistent with the rights conferred by Chapter I of Part II of the Constitution as .Void to the extent of inconsistency. The mandate in clause (2) of Article 8, ibid, is directed to the State not to enact any law which takes away or abridges the rights conferred by Chapter I of Part II of the Constitution and further declares that if any such law is enacted then to the extent of such contravention it will be void. However, the laws specified in sub-clauses (a), (b) (i) and (ii) of clause (3) have been excepted from the rigours of clauses (1) and (2) of Article 8 ibid. The effect of Article 8(3)(a) of the Constitution is, that the law specified therein have been saved from being challenged or attacked on the ground of their inconsistency with the fundamental rights conferred by Chapter I of Part II of the Constitution. However, protection given to laws specified in sub-clauses (b)(i) and (ii) of Article 8(3) ibid, from being challenged on the ground of inconsistency with the fundamental rights conferred by Chapter I of Part II ibid, was only for a specified period during which the appropriate legislatures were directed to bring them in conformity with the provisions of Chapter I ibid. Army Act, 1952 is one of those pieces of legislation which is protected under Article 8(3)(a) of the Constitution from being challenged on the ground of its consistency with the provisions contained in Chapter I of Part II of the Constitution. However, this controversy does not arise in the present case, as petitioners have not challenged any of the provisions of the Act on the ground of its inconsistency with the fundamental rights conferred by Chapter I of Part II of the Constitution. The contention of learned Attorney-General that on account of protection given to the Act under Article 8(3) of the Constitution, the ouster clause in section 133 of the Act should be read as barring the jurisdiction of this Court, under Article 184(3) of the Constitution, does not appear to be correct. The protection given to the Act under Article 8(3)(a) of the Constitution cannot enhance its status from a sub-Constitutional legislation.To a Constitutional provision of law, so as to affect the jurisdiction of this Court conferred by the Constitution. The jurisdiction conferred on this Court under Article 184(3) of the Constitution cannot be affected or taken away by any sub-Constitutional legislation. I am, therefore, of the view that section 133 of the Act did not affect the jurisdiction of this Court under Article 184(3) of the Constitution.
21. The learned Attorney-General, however, also pleaded a Constitutional bar on the exercise of power of this Court under Article 184(3), ibid, by virtue of clause (3) of Article 199 of the Constitution which prohibited a High Court from passing any order under clause (1) of Article 199 ibid, when the matter related to a person who is member of the Armed Forces of Pakistan or is a person who is for the time being subject to law applicable to armed forces or the matter related to an action taken in respect of a person who is subject to such laws. According to learned Attorney-General, the powers conferred on this Court under Article 184(3) of the Constitution being analogous to the jurisdiction of the High Court exercised under Article 199 of the Constitution, this Court cannot pass any order under Article 184(3) of the Constitution if the matter before it related to the categories of cases mentioned in Article 199(3) of the Constitution. The learned Attorney-General contended that the framers of Constitution by making specific reference to Article 199, in Article 184(3) of the Constitution made their intention clear. It will he easier to understand the true import of the above contention of learned Attorney-General if we divide it into parts; namely, (i) the scope and extent of ouster of jurisdiction of High Court to pass an order under Article 199(1) of the Constitution in matters covered by Article 199(3) ibid; and (ii) the extent of application of Article 199(3) ibid to the proceedings before this Court under Article 184(3) of the Constitution. The scope of Article 199(3) of the Constitution with reference to the power of the High Courts to make an order in respect of cases falling under Article 199(3) ibid, was examind by this Court in the case of Brig. (Retd.) F.B. Ali v.
22. State PLD 1975 SC 506. Harnoodur Rehman, C.J. (as his lordship then was), in his leading opinion in the above case observed as follows on the scope of Article 199(3) of the Constitution:- "The contention raised on behalf of the State that, in any event clauses (3) and (4) of Article 199 of the present Constitution, constitute a bar to the power of the High Court and this Court to interfere with the decision of this Court Martial has now to be noticed. These clauses as amended by Act XXXIII of 1974 on 8-5-1974 read as follows:-- '199.---(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.'
23. 199.---(5) In this Article, unless the context otherwise requires-- 'person includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan. "
24. Somewhat similar provisions contained in Article 98(3)(a) of the 1962 Constitution came up for consideration by this Court in the case of Muhammad Akram Khan v. Islamic Republic of Pakistan PLD 1969 SC 174 and it was held that the bar operates only in a case where the action has been taken against a member of a defence service in relation to him exclusively as a member of such a service in respect of matters specified in clause (3). Originally clause (3) of Article 199 of the present Constitution was the same as clause (3) of Article 98 of the 1962, but in 1974,, it was amended so as to bar an application also in relation to a person "who is for the time being subject to any law relating to any of these forces" even in respect of "any action taken in relation to him as a person subject to such law". Under clause (5) a "Court or Tribunal established under .a law relating to the Armed Forces" is excluded from the category of "persons" against whom any direction or order can be issued under Article 199.
25. The learned Attorney-General has contended that the words "relating to" in clause (3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceivable action taken in relation to even a person for the time being subject to the Army Act as the appellants were. However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram non judice or has been taken mala fide as held by this Court in State v. Ziaur Rahman PLD 1973 SC 49.
26. On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to the Armed Forces.
27. The action must, however, be one which is taken while he is so subject and before he becomes so subject or after he ceases to be sd subject. In this view of the matter the trial of the offence under section 121-A, P.P.C. Would not, in my opinion be protected being without jurisdiction."
28. It is quite clear from the above-quoted passage that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature. At least in respect of three categories of cases, namely, where the impugned action is mala fide, or without jurisdiction or coram non judice the bar of Article 199(3) is not applicable.
29. The second part of the contention of learned Attorney-General relates to the application of the provisions of Article 199(3) of the Constitution to the proceedings before this Court under Article 184(3) of the Constitution. Article 184(3) ibid, is as follows:-- "184.---(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
30. Explanation.---In this clause, "Governments" means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
31. The learned Attorney-General contended that reference to Article 199 of the Constitution in Article 184(3) ibid, clearly indicated that this Court while exercising power under Article 184(3) will have the same jurisdiction which the High Court possessed under Article 199 of the Constitution and, therefore, all limitations mentioned in Article 199, ibid, for exercise of power by the High Court's equally applied to this Court while dealing with a case under Article 184(3) of the Constitution. The scope of jurisdiction and exercise of power by this Court under Article 184(3) of the Constitution had been the subject-matter of consideration in a number of cases by this Court but I will refer here first to the case of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 which is considered as the foundation judgment laying down the paramaters within which the power and jurisdiction is exercised by this Court in public interest litigation under Article 184(3) of the Constitution.
32. Muhammad Haleem, C.J. (as his lordship then was), who wrote the leading judgment in Benazir Bhutto's case, supra after referring to the legislative history of Article 184(3) of the Constitution observed as follows on the scope of Article 184(3) ibid:- "The opening words without prejudicein Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, 'to the provisions of Article 199', the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184(3), that is, that the element of 'public importancemust be involved in the enforcement of Fundamental Rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exerciseable on its own terminolc The impression, if there is, that the trappings of sub-Articles 1a) and 1(c) of Article 199 are also to be read into this Article appears to me to be without substance as there are no words in Article 184(3) to incorporate them except, of course, the words 'make an order of the nature mentioned in the said Article', which are specifically referable to the nature of the order in sub-Article 19(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Righs. The nature of the order, however, is the end product of the Judicial power exercised. Therefore, it will not control or regulate, in any way, the exercise of power so as to make it exercisable only at the instance of the aggrieved partyin the context of adversary proceedings.
33. The plain language of Article 184(3) shows that it is open-ended. The article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an aggrieved personis implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which the only person wronged can initiate proceedings of a judicial nature for redress against the wrong-doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The relationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions.
34. Therefore, while construing Article 184(3), the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2A) the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.
35. In this milieu, I am of the view that the adversary procedure, where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney-General, for enforcing the Fundamental Rights, would become self-defeating as it will not then be available to provide access to justice to allas this right is not only an internationally recognized human right but has also assumed Constitutional importance as it provides a broad based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i,e, national integration and social cohesion by creating an egalitarian society through a new legal order. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights.
36. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case."
37. Justice Abdul Kadir Sheikh, another learned member of the Bench which decided Benazir Bhutto's case, supra, also recorded his separate observation on the scope of Article 184(3) of the Constitution, as follows:-- "My Lord the Chief Justice after a detailed discussion with historical background of the Constitutional provisions has rightly held that the language of Article 184(3) is 'open ended', and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons.
38. It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the remedythat makes the right real. It is often said that without 'remedythere is no right. It is for this reason that Constitution- makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.
39. Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights, the obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating."
40. From the above discussion, it is quite clear that the use of the expression "without prejudice to the provisions of Article 199" in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of fundamental rights guaranteed under Chapter 1 of Part II of the Constitution; The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of the Constitution is not affected in any manner either by the provisions of section 133 of the Act or by the conditions contained in Article 199(3) of the Constitution. The jurisdiction of this Court in a case under Article 184(3) of the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly, that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter 1, Part II of the Constitution. Apart from these two jurisdictional requirements, no other consideration are relevant for exercise of power by this Court under Article 184(3) of the Constitution.
41. The learned Attorney-General next contended that, firstly, the controversies raised in the above petitions are in the nature of personal grievances of individuals in which public at large is not at all interested; and secondly, the controversies raised in the petitions do not relate to enforcement of any of the Fundamental Rights guaranteed under Chapter I of Part II of the Constitution. The learned Attorney-General, accordingly contended that the two pre-conditions necessary to attract the jurisdiction of this Court under Article 184(3) of the Constitution being absent, these cases are not fit to be entertained under Article 184(3) of the Constitution. The expression 'public importanceused in Article 184(3) of the Constitution was interpreted by this Court in the case of Manzoor Ellahi v. Federation of Pakistan PLD 1975 SC 66, as follows:-- "Now, what is meant by a question of public importance. The term 'publicis invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, State, or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large. And is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framiee Petit v. Secretary of State for India-in-Council ILR 39 Born. 279 while words 'public purposesuch a phrase. whatever else it may mean must include a purpose. That is an object or aim, in which the general interest of the community. As opposed to the particular interest of individuals, is directly and vitally concerned'. This definition appears to me to be equally applicable to the phrase 'public importance."
42. The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance the case must obviously rase question which is of interest to or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence.
43. Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty. And which provide Constitutional safeguards and guarantees in this behalf. Any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness: in availability of those safeguards, must be regarded as a matter of gr it public importance."
44. (The Underlining is my own).
45. The above interpretation of words "public importance" in Article 184(3) of the Constitution was quoted with approval in Benazir Bhutto's case, supra, as follows:-- "Lastly is the consideration of the connotation of the expression 'public importancewhich is tagged to the enforcement of the Fundamental Rights as a pre-condition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the Constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in manner which raises a serious question regarding their, enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his human rights of liberty and freedom or of a class or a = of persons as the would also be legitimately covered by this expression. Reference in this connection can be made to the observations of Anwarul Haq, J., as he then was, in Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 at p. 145, as under:-- The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence.
46. Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide. Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance."
47. Having regard to the connotation of the words "public importance" it will be for the Supreme Court to consider in each case whether the element of "public importance" is involved in the enforcement of the Fundamental Rights irrespective of the individual's violations or the infractions of a group or a class of persons."
48. From above-quoted passages, it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals. In the case of Employees of Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548, Saleem Akhtar, J., relying on the observations in Benazir Bhutto's case, supra, on the scope of Article 184(3) of the Constitution observed as follows:-- "In Benazir Bhutto's case it was observed as follows:-- The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is defined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated."
49. It was further observed that the inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam". While further dilating upon the provisions of the Constitution, particularly Articles 3, 37 and 38 of the Constitution, which enshrine socio-economic principles, it was observed that "these provisions become in an indirect sense enforceable by law and thus bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy". In this background it was observed as follows:-- "The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom; freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961 in the World Peach Through Law Conference: Adequate levels of living are essential for full enjoyment of individual's freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population.
50. The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations.'
51. The Court will be in a position, if the procedure is flexible, to extent the benefits of socio-economic change through this medium of interpretation to all sections of the citizens.
52. This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to Constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population."
53. It is thus clear that Article 9 of the Constitution which guarantees life and liberty according to law is not to be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. In this background the petitionersclaim to be provided accommodation during tenure of service, which is necessary for maintaining adequate level of living, in our opinion, is covered by Article 9. It is true that the terms and conditions of service perhaps do not require the respondents to provide residential accommodation to the petitioners, but if other Government servants similarly placed are being provided accommodation there is no to deprive the petitioners from such relief.
54. In this view of the me petition under article 184(3) is competent".
55. Again in the case of General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2061, a case under Article 184(3) of the Constitution, Saleem Akhtar, J., once again reiterated the scope of Article 184(3) and the kind of directions which can be given by this Court under this Article of the Constitution, as follows:-- "5. The next contention of the learned counsel is that the question whether mining activity could possibly pollute or diminish the water supply, is a question of fact and two authorities have recorded finding on it, therefore, such question cannot be raised before and by this Court. In dealing with this contention, one has to keep in mind the scope and extent of the jurisdiction exercised by this Court under Article 184(3) under which, in cases where question of public importance with reference to the enforcement of fundamental rights is involved, direction or order of the nature as mentioned in Article 199 can be given or passed. Article 184(3) reads as follows:- 184.--(1) & (3) ..............
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
56. It is well-settled that in human rights cases public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into question of fact as well independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline of exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should be in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case,"
57. (The underlining is my own).
58. Another learned Judge of this Court, Ajmal Mian, J., in the case I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 on the scope of Article 184(3) of the Constitution observed as follows:-- "13.--Even otherwise, the above proceedings are in the nature of public interest litigation and, therefore, in order to advance the cause of justice and public good, the power conferred on this Court under clause (3) of Article 184 of the Constitution is to be exercised liberally unfettered with technicalities. In this regard, reference may be made to the case of D.S. Nakara and others v. Union of India AIR 1983 SC 130, on which Mr. Samdani has heavily relied upon in support of his case on merits and in which inter alia the following observations have been made in para.64 of the judgment on the point in issue, which read as follows-- "64. Locus standi of third petitioner was questioned. Petitioner No,3 is a Society registered under the Societies Registration Act of 1980. It is a non-political, non-profit and voluntary organisation. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually ubable to undertake the journey through labyrinths of legal judicial process, costly and protracted and, therefore, approached petitioner No,3 which espoused their cause. Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87: AIR 1982 SC 149 at p.194 rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such Constitutional or legal provisions. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retires. Therefore, its locus standi is of petitioners Nos.1 and 2 was never questioned."
59. From the above discussion, it is quite clear that this Court while construing the provisions of Article 184(3) of the Constitution did not follow the conventional interpretative approach based on technicalities and ceremonious observance of rule or usage of interpretation. Keeping in view the avowed spirit of the provision, this Court, preferred the interpretative approach which received inspiration from the triad of provision which saturated and invigorated the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and Directive Principles of State Policy so as to achieve, democracy, tolerance, equality and social justice according to Islam.
60. This liberal interpretative approach opened the door of "access to justice to all".
61. In the light of preceding discussion, I now proceed to examine whether, the present cases involve question of public importance relating to enforcement of fundamental rights.
62. The petitioners claim that the case against four high ranking military officers of Pakistan Army is the outcome of interception of a consignment of arms and ammunition in a car belonging to a military officer at Kohat, by the local police on 8-9-1995, which the accused officers contended, was meant for use by the freedom fighters in occupied Kashmir. The incident was later investigated by the Military Intelligence (M.I.) and Services Intelligence Bureau (S.I.B.) of Army which led to the framing of following charges against the accused officers:- S.No.Charges Name of accused officer against whom charge is made
(1) Committing a civil offence that is to say conspiring to wage war against Pakista, an offence punishable under section 121-A of Cr.P.C. in that they together at Rawalpindi, Mangala and elsewhere, between the period from May 1995 alongwith Colonel Liaqat Ali Raja and others conspired to wage war against Pakistan so as to overthrow the Federal Government of Pakistan by means of criminal force.--- Mj.-Gen. Zahirul Islam Abbasi (Asscued No.1) --- Brig. Mustanser Billa (accused No.2) ---Col. Muhammad Azad Minhas (accused No.3) --- Col. Inayatullah Khan (accused No.4)
(2) Conduct to the prejudice of good order and military discipline, in that he, at places and period mentioned in the first charge knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities.--- Accused Nos.1, 3 and 4
(3) Attempting to seducing person in the military force of Pakistan from his allegiance to Government of Pakistan--- Accused No.2 only The news about the arrest, detention and trial of the abovementioned military officers has been widely reported in the national press, based on the official version of the incident as well as reactions of political leaders representing different shades of public opinions. The press reports based on official version of the case against the accused military officers appearing in the national press have not been disowned by the respondents in their comments filed in the above cases. The official version of the case substantially differ from perception of the leaders belonging to major political parties in opposition. The accused officers have been charged for conspiracy to overthrow a constitutionally established Government by use of criminal force. The difference in the perception of Government and opposition leaders about the case against these military officers is likely to cause anxiety in the mind of general public with regard to fairness of trial which is being conducted before a Military Court and is not open to public and press. The armed forces belong to a highly disciplined institution and are held in very high esteem by the public at large for their capabilities not only to defend the geographical boundaries of the country but also for safeguarding its ideological frontiers from being attacked internally or externally. The image of the institution of such a vital importance must be maintained in the interest of national cohesion. This can be achieved only by inspiring public confidence in the fairness of the trial of these military officers before a Court Martial. I am, therefore, of the view that the above cases do raise a question of great public importance. The petitioners have raised number of grounds in support of their petitions.
63. Some of these grounds relate to alleged contravention of fundamental rights guaranteed by Articles 9, 10 and 14 of the Constitution, while others concern with the fairness of the trial by a Military Court. Therefore, both the jurisdictional requirements of Article 184(3) of the Constitution are present in these cases. I, accordingly, hold that these petitions are maintainable in law before this Court.
64. I now proceed to examine the contentions of petitioners on merits. The petitioners have jointly contended that at the time of their arrest they were neither shown any warrant of arrest by the arresting officer nor they were apprised of the grounds of arrest. It is also alleged that they were not produced before a Magistrate within 24 hours of their arrest as required by Article 10(2) of the Constitution for obtaining their remand. The respondents in reply to these assertions have contended that the arrest of these officers was ordered by the then Chief of Army Staff (C.O.A.S.) and they were verbally informed by the officer who arrested them about the order of arrest and grounds of arrest. The Act is a self-contained code which provides for all matters relating to arrest, detention and trial of a person accused of an offence under the Act. Section 73 of the Act provides for custody of an offender charged with an offence under the Act. This section provides that any person may be ordered into military custody by any superior officer except in the case of a person subject to this Act as an officer, by any member of the military, naval or air force police. This section further provides that an officer may be ordered into military custody of _any other officer though he may be higher in rank who is engaged in a quarrel, affray or disorder. Note 2(b) appended to this section states that the arrest may be open or close and it may be ordered verbally or in writing except in cases of officers and Junior Commissioned Officers which should always be in writing.
65. However, this note further states that absence of written order would not invalidate the arrest.
66. Section 74 of the Act casts a duty on the Commending Officer of a person arrested, to ensure that he is not detained in custody for more than 48 hours after the committal of such person into custody without charge being investigated, unless it appears to the Commanding Officer that the investigation is not possible within that period. The case of a person detained in custody beyond 48 hours is required to be reported by the Commanding Officer to the Officer to whom application is to be made to convene a general or district Court Martial for the trial of the person charged. In reckoning the period of 48 hours, this section provides that all public holidays will be excluded.
67. Section 75 of the Act provides that in every case when a person is arrested under section 73 of the Act and he is not on active service, if he is detained in custody for a period longer than 8 days without Court Martial for his trial, a special report giving reasons for the delay is to be made to the Commanding Officer in the prescribed manner and such a report is to be forwarded regularly at intervals of each 8 days until the Court Martial is assembled or such person is released from custody. Army Regulation A.R.(R.) No,269 deals with the open and close arrest of an offender under the Act. A.R.R. 270 provides that where a person is committed into custody of another officer then the officer committing the custody will deliver at the time or if that is not practicable, within 24 hours to the officer in whose custody the accused is committed, a report preferably in writing and signed by himself stating the alleged offence. If such a report is not received by the officer in whose custody the accused is committed, he is required to report the circumstances to the Commanding Officer or other competent authority who will, if considered that the arrest does not appear to be justified, order release of the accused without prejudice to his re-arrest in the case. It is also provided under this A.R.(R) that a person in whose custody the accused is committed will at the request of the accused inform him of the rank, name and unit of the person by whom he is alleged to have committed the offence and given him a copy of the charge report when received. A.R.(R)
68. 296 provides that if a person arrested remains in custody for a period longer than 32 days without being brought to the trial, he will have a right to petition to the Judge Advocate-General, GHQ, against his continued detention and on the petition being filed, the Judge Advocate-General will examine the petition along with the comments of the formation concerned and advice release of the accused person if it is found justified. The petition in such a case is to be treated as immediateat all levels. The punishment for irregular confinement of a person who has been detained without lawful excuse is provided under section 51 of the Act.
69. From the above discussion, it appears that for arresting a person accused of an offence under the Act, a written order of arrest is not necessary though it is preferable. The Act also does not provide that a person arrested for an offence under the Act must be produced before a Magistrate for remand within 24 hours of his arrest as required by Article 10(2) of the Constitution. The custody of a person accused of an offence under the Act, after his arrest, is regulated in accordance with the provisions of sections 74 and 75 of the Act which do not provide for production of the accused before a Magistrate for remand within 24 hours of his arrest. Therefore, to this extent the provisions of the Act do not conform to Article 10(2) of the Constitution. However, as pointed out by me in the preceding discussion, the provisions of the Act are protected under Article 8(3) (a) of the Constitution from being challenged on the ground of inconsistency with the Fundamental Rights contained in Chapter 1 Part II of the Constitution therefore, non-compliance of the provisions of Article 10(2) of the Constitution, could not invalidate the arrest and detention of accused officers under the Act. I am, therefore, of the view that the non-production of the accused officers within 24 hours of their arrest before a Magistrate in accordance with the provisions of Article 10(2) of the Constitution for obtaining their remand was of no consequence. Similarly, the absence of a written order of arrest of the accused in these cases could not invalidate their arrests as according to the contention of respondents, the accused officers were arrested under an oral order of C.O.A.S., which is permissible under the Act though not preferable. The learned counsel for the petitioners has also raised objection that the petitioners after their arrest were required to be produced before the Commanding Officer concerned as required by section 74 of the Act which was not done in these cases. It is true that under section 74 of the Pakistan Army Act, the concerned Commanding Officer (C.O.) of the accused is required to see that a person under his command is not detained in custody for more than 48 hours without the charge being investigated and in case of delay in the investigation beyond 48 hours, the C.O. Is required to report the reason for delay to the officer to whom application is to be made to convene a Court for the trial of the accused. But in these cases the arrest of the accused officers having been ordered by the then C.O.A.S., their non-production before their respective C.Os. Was not necessary. In any case, against the unauthorized arrest and detention of a person, remedies are available under the Act itself which can be availed by the accused and the person ordering illegal arrest can also be prosecuted under section 51 of the Act.
70. The learned counsel for the petitioners also contended that after their arrest, the accused officers were subjected to severe torture and were humiliated by handcuffing and blind folding during their transportation to the place of their trial, in contravention of the provisions of Article 14 of the Constitution. I will deal with the allegations of torture of the accused officers a little later in this judgment. The petitioners have alleged that the accused officers were handcuffed and blind folded during the period of their arrest while being taken to the place of their trial. The allegations of handcuffing and blind folding are not seriously disputed. The accused officers in these cases have been charged for conspiring to wage war against the Central Government. The handcuffing and blind folding of a person arrested under section 73 of the Act are dealt with under Notes Nos.4 and 5 appended to that section which read as follows:-- "4. Handcuffing during transportation or in military custody.--(a) An offender in military custody who is being escorted to unit/centre, to an interrogation center, to an airport, or from airport to the place of custody or being taken to a civil jail or anywhere else will not be handcuffed except when he shows violence, attempts to escape or is charged with a very grave offence like murder, attempted suicide, mutiny, or when his behaviour is unruly and non-cooperative or is certified mentally unsound by the medical authority.
(b) An offender, who has allegedly committed the offence under section 131 of the Pakistan Penal Code, section 31(d), section 36, and who is subject to the Act under section 2(1) (d), when being taken from one place to another for the purpose of interrogation or otherwise will be handcuffed enroute. In all cases when a person is handcuffed following points will be kept in mind:--
(1) Unless the attending circumstances so require, long chains with handcuffs will not be used.
(2) Normally handcuffs will be used in such a manner that only one hand of the offender is handcuffed with the hand of a member of the escort.
(3) Handcuffing is not to be too obvious. However, it is within the discretion of the authority ordering the handcuffing to transport the arrested persons openly.
(4) The arrested person will be treated with dignity as required by the custom of service and his self-respect, as far as possible, will be maintained.
(5) Blind folding during arrest.--An offender in military custody or when he is being taken from one place to another may be blind folded when it is considered, necessary for reasons of security and secrecy. However, blind folding may not be resorted to as a routine and such occasion must arise rarely."
71. Handcuffing of an offender under the Act, is also dealt with under A.R.(R) 269-A. Which is as follows:-- "269-A. Handcuffing--Offenders including deserters.-An offender in military custody, except a deserter who is being escorted to unit/center or a convict who is being taken to a civil jail, will not be handcuffed except when he shows violence, attempts to escape or is charged with a very grave offence like murder, attempted suicide, mutiny, etc.; or is certified mentally unsound by a medical authority.
72. A deserter, being escorted to his unit/center for trial will, however, be handcuffed, except when he is in a cell in any unit etc enrooted. After arrival in the unit/center, he will be treated as a normally offender'.
73. In all cases, when a person is handcuffed:--
(a) Long chains with handcuffs will not be used.
(b) Normally handcuffs will be used in such a manner that only one hand of the arrested person is handcuffed with the hand of the OR of the escort.
(c) Handcuffing will be done surreptitiously and a blanket, a sheet or some other article of clothing etc.; will be put on the handcuffs so that his being handcuffed is not made too obvious.
(d) In public, the arrested person will not be treated with any disdain or in a manner to expose him to curiosity of other people.
74. These instructions aim at maintainhig and respecting normal human dignity and self-respect of the arrested person. They do not in any way minimize the responsibility of the escort or other personnel concerned with the safe custody of the arrested person."
75. From the above-quoted passages, it would appear that although blind folding of the offenders and handcuffing them are permitted in certain specified circumstances, but the person resorting to handcuffing of offenders is required to follow strictly the manner and procedure prescribed for handcuffing of offenders under A.R.(R) 269 so that human dignity and self-respect of the person handcuffed is not violated in any manner. In the present cases before us, the accused military officers have been charged with the offence of waging war against the Central Government and as such their handcuffing and blind folding during the process of their transportation from their units to the place of trial could not be described as contrary to law.
76. The petitioners have very strenuously argued that the detained military officers were subjected to severe torture by the S.I.B. Personnel's while in military custody. Article 13 of the Constitution provides that no person, shall, when accused of an offence be compelled to be a witness against himself. Article 14(2) of the Constitution prohibits torture of a person for the purposes of extracting evidence. Both these Articles apply to proceedings under the Act, as their application has not been excluded either expressly or by implication under the provisions of the Act. However; as the allegation of torture of the detained officers by S.I.B. Is vehemently denied by the respondents in their comments filed in the above cases, it is not possible to determine this controversy in these proceedings. It may, however, be added here that as the provisions of the Act or A.R.(R) did not authorise torture of fenders under arrest by military authorities, the accused officers are entitled to prove these allegations before the F.G.C.M. Where they are facing the trial, and in case they succeed in establishing these allegations, the F.G.C.M. Will determine their effect on, the trial before it. Similarly, the petitioners also contended that prosecution evidence in the case was extracted by torturing the witnesses during their custody by military authorities. In this connection, the petitioners relied on the alleged admissions made by the witnesses in their statement filed before the F.G.C.M. As the trial of the accused persons before F.G.C.M. Is in progress, I would refrain from making any comment on the evidentiary value of the statement of prosecution witnesses.
77. However, if the accused raised any such objection before the F.G.C.M., the same will be dealt with by the Court keeping in view the provisions of Articles 13 and 14 of the Constitution.
78. The learned counsel for the petitioners contended that the trial of the accused before F.G.C.M.
79. Instead of a G.C.M. Was illegal and mala fide, as during peace times an accused person can be tried only before a G.C.M. And not by a F.G.C.M., which is convened in times of war and at places where officers in required numbers., are not available. It is also contended that procedure of trial applicable before F.G.C.M. Is less favourable to accused as compared to the procedure applied before G.C.M. And as such the accused are likely to be prejudiced in their defence.
80. Section 8'0 of the Act provides for constitution of four kinds of Court Martial for trial of accused under the Act. They are, General Court Martial, District Court Martial, Field General Court Martial and Summary Court Martial. Power to convene a G.C.M. Is contained iii section 81 of the Act which provides that a G.C.M. May be convened by the C.O.A.S. Or by an officer empowered in this behalf by warrant of the C.O.A.S. The F.G.C.M. Is convened under section 84 of the Act which reads as follows:--
84. Power to convene Field General Courts Martial.--The following authorities shall have power to convene a Field General Court Martial, namely:--
(a) an officer empowered in this behalf by an order of the Federal Government or of the Chief of the Army Staff;
(b) on active service, an officer commanding a portion of the Pakistan Army, not below the rank of Brigadier, if in the opinion of such officer commanding, such opinion to be recorded in writing and to be conclusive, it is not practicable with due regard to discipline and the exigencies of the service to try the alleged offender by a General Court Martial."
81. The F.G.C.M. In accordance with clause (a) of section 84 ibid can be convened either by an officer empowered in this behalf by an order of the Federal Government or by the C.O.A.S. However, for convening a F.G.C.M. Under clause (b) of section 84 ibid, the officer need not be warrant holder. The F.G.C.M. Under this clause can be convened during active service by an officer commanding a portion of Pakistan Army not below the rank of Brigadier, if he is of the opinion that it is not practicable with due regard to discipline and exigencies of the service, to try the alleged accused by G.C.M. Paras. 106 and 107 of Chapter IV of Part I of Manual of Pakistan MilitaryLaw, Volume I which are also relevant in this behalf, reads as follows:-- "106. Field General Court Martial in time of peace.-A Court of this character is not suited to peace conditions, but it may sometimes be necessary to convene such a Court at a remote station where a sufficient number of officers to constitute a General Court Martial are not available. The power to convene Field General Courts Martial in time of peace is restricted to officers, empowered by the Federal Government or the Chief of the Army Staff (PAA Section 84), and the officer convening the Court should direct that the evidence and the statement of the accused in defence should be recorded in full, instead of in the abbreviated form, allowed by PAA Rule 144, the proceedings being thus assimilated, so far as circumstances permit, to those of an ordinary general Court Martial.
107. Field General Court Martial on active service.-On active service, a Field General Court Martial may be convened by an officer commanding a portion of the Pakistan Army, not below the rank of Brigadier, if in the opinion of such officer commanding, it is not practicable to try the offender by a General Court Martial."
82. The language of section 84 of the Act read in conjunction with paras.106 and 107 of Chapter IV, Part I of Manual of Pakistan Military Law, Volume I, reproduced above, do support the inference that a F.G.C.M. Is not suited to peace condition. However, on a purely legal plane no restriction can be read into the provisions of section 84(a) of the Act for convening a F.G.C.M. During peace time. It is, admitted before us by the learned counsel for the petitioners that under a notification issued by the Central Government under section 7 of the Act in 1975, all persons subject to the Act were declared to be on active service with reference to section 8(1) of the Act and this notification still holds the field. Therefore, in my opinion, the objection to the Constitution of F.G.C.M. For the trial of the accused persons on the ground that at the time F.G.C.M. Was constituted, the accused military officers were not in active service is not sustainable. It is true that if the accused officers were to be tried by a G.C.M. Then in accordance with Pakistan Army Act Rules (PAA Rules) 31, all the members of G.C.M. Normally would have been of the rank of a Major-General as one of the accused in the case is Major-General and in no case the members of G.C.M. Would be an officer below the rank of a captain. The above restriction to the constitution of G.C.M. Is not applicable to the F.G.C.M. It is also true that the procedure applicable to trial before a F.G.C.M. Is less favourable to accused as compared to the procedure applied to the proceedings before a G.C.M. As is evident from PAA Rules 135 to 149 but in so far the law permitted the trial of an accused under the Act by a F.G.C.M.
83. These objections carry nowhere. It may, however, be added here, that proceedings before a F.G.C.M. Convened during peace time, should be carried as far as practicable in the same manner as the proceedings of ordinary general Court Martial, as observed in para 106 of Chapter IV of Part I of Pakistan Military Law, Volume I. However, as 1 have reached the conclusion that trial of the accused by the F.G.C.M. Was not against the provisions of the Act, the objection of the petitioners regarding constitution of F.G.C.M. And the procedure applicable before it are overruled, The petitioners next contended jointly that the accused officers do not expect a fair trial before F.G.C.M. For the following reasons:-
(a) the bias of officer convening the F.G.C.M.;
(b) the convening officer being subordinate to the officer who investigated the case against accused;
(c) denial to the accused officers, the copies of the statements of witnesses which formed the basis of the charge against them;
(d) holding of the trial in camera, and
(e) the State propaganda against the accused officers in electronic and print media before commencement of their trial before FGCM.
84. The right to have a fair trial by an unbiased Court/Tribunal is undoubtedly a basic and fundamental right of a person who is charged with a criminal offence. Whether the trial of a person accused of a criminal offence by a Court Martial could be considered a fair criminal trial, was considered at length by this Court in the case of F.B. Ali v. State (PLD 1975 SC 506). Amami Hag, J.
85. (as his lordship then was) while considering the validity of a trial by a Military Tribunal in the context of a fair trial, observed as follows:-- "It seems to me, therefore, that, as held in Ch. Manzoor Elahi's case the injunction as embodied in Fundamental Right No,1 of the 1962- Constitution required the Court to ensure that:--
(a) the deprivation of life and liberty of a person is under and in accordance with law; and
(b) that the law in question is a valid law in term of the Constitution as well as the accepted forms of legal process obtaining in the country.
86. If the law violates accepted legal and judicial norms it would be repugnant to Article 9 of the Constitution even though it may have been enacted by a competent Legislature.
87. Coming now to the substance of the contention raised on behalf of the appellants with reference to Fundamental Right No,1 our attention was drawn by Mr. M. Anwar to the criteria of a fair trial as enumerated on page 197 of the Constitution of the Islamic Republic of Pakistan (1962) by Mr. M.
88. Monir, a former Chief Justice of Pakistan. According to the learned author, in a criminal trial, an accused person has under the general law some important rights.
89. They are:--
(1) The right to know before the trial the charge and the evidence against him;
(2) the right to cross-examine the prosecution witnesses;
(3) the right to produce evidence in defence;
(4) the right to appeal or to apply for revision;
(5) the right to be represented by counsel;
(6) the right to have the case decided by the Judge who heard the evidence;
(7) the right to trial by jury or with the aid of assessors;
(8) the right to certain presumptions and defences; and
(9) the right to apply for transfer of the case to another Court.
90. The right mentioned at No,7 is no longer operative in Pakistan as the requirement of a trial by jury or with the aid of assessors Was dispensed with long ago. The other rights enumerated by Mr. Munir are clearly available in a trial by a Court Martial. Although there is no appeal to a higher Court, yet the convicted accused has a right of revision to the Commander-in-Chief of the Pakistan Army or to the Federal Government under section 131 and 167 of the Pakistan Army Act. It is true that a Court Martial is not required to write a detailed judgment, as is commonly done by the ordinary Criminal Courts of the country, yet this is obviously not one of the essentials of a fair trial, it being intended more for the benefit of the Appellate Court rather than for that of the accused.
91. I may add that, as observed by Halsbury on page 825, th Courts Martial are parts of the ordinary law of the land, and must not be confu d with Martial Law Courts which are brought into existence on suspension of the ordinary law. Any criticism or misgivings attaching to the functioning of military Courts under Martial Law cannot be imported into a consideration of the fairness of trial held by Courts Martial established under the relevant Acts for the Army, Navy and Air Force. These Courts Martial are intended to regulate the discipline and conduct of the personnel of the respective Forces, and of all other persons who may be made subject to these laws in certain circumstances. They are thus established institutions with well-known procedures, which cannot be described as arbitrary, perverse or lacking in fairness in any manner.
92. I am, therefore, of the view that there is no merit in the contention that a trial by Court Martial violates the accepted judicial principles governing a fair trial as obtaining in Pakistan."
93. From the above-quoted passage, it is quite clear that the rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person. With the assistance of learned Attorney-General and the learned counsel for the petitioners we have gone through various provisions of the Act governing the procedure of trial before a Military Court and after going through the same, I am of the view that the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case. I may also add here, that unlike the previous position when no appeal was provided against the conviction and sentence awarded by a Military Court, the Act now provides an appeal against the conviction and sentence awarded by a Military Court before an appellate forum.
94. I will now take up the objections of the petitioners urged in support of the contention that they do not expect fair trial before the F.G.C.M. The first two objections of petitioners relate to the alleged bias of convening officer and his Commanding Officer (C.O.). The objection is based on the ground that the convening officer is subordinate to his C.O., the officer who had conducted the initial investigation of the case against the accused officers. Mere fact that the convening officer happened to be a subordinate of another officer who conducted the initial investigation of case is not enough to conclude that the convening officer is biased against the accused officers. There is nothing on the record before us to show that the convening officer acted at the behest of his C.O.
95. (who is said to be the officer who conducted the initial investigation in the cases) while convening the F.G.C.M. The convening officer in the case being a warrant 'Aholder is not subordinate to C.O. In matter of convening the F.G.C.M. The petitioners have not been able to bring on record any material to show that the C.O. Of convening officer has tried to influence the proceedings of F.G.C.M. In any manner. In fact, in view of PAA Rule 30, the C.O. Of convening officer being an officer who was associated with the investigation of the charges against the accused officer is disqualified from serving on F.G.C.M. Convened for trial of the accused officers in any capacity. I, therefore, see no force in these objections of the petitioners.
96. The second objection of petitioners relates to refusal of the authorities to supply the copies of statement recorded by C.O., which formed the basis of charges against the accused officers. In Constitution Petition No,8 of 1996 at page 27 of the file a copy of the progress report of the case has been filed. This document is not denied by the respondents. In this document under the heading "Brief Details of Proceedings", it is stated as follows:-- "Study of relevant rules and instructions, investigation report and statements of the witnesses before the Commanding Officer." The accused officers applied for the copies of the statements of witnesses recorded before the Commanding Officer mentioned above between the period from 25th to 27th October, 1995 but the same were declined. It is not disputed that the charges in the case against the accused officers were framed on the basis of these statements. Therefore, these statements were essential part of the material against the accused officers which they were entitled to rebut in their defence. The learned Attorney-General contended that under the Rules, the accused officers were not entitled to get copies of these statements. The learned Attorney- General in support of his contention relied on PAA Rule 130. The rule relied by learned Attorney- General refers to the grant of copies of the proceeding of Court Martial to the persons tried, after confirmation of findings and sentence of Court Martial. This rule in my opinion has no application to the grievance of petitioners. The relevant provisions in this regard are PAA Rule 13-A and A.R.(R) 349 which read as follows:-- "13-A. Abstract of evidence.--(1) Save in the case of an offence liable to Hadd, an abstract of evidence shall be made in the following manner and recorded in the form set out in the Fifth Appendix to these Rules--
(a) it shall be made by the commanding officer or such officer as he directs;
(b) the accused should not be present while the abstract of evidence is being made;
(c) it shall include the signed statements given on oath or affirmation by such witnesses as are necessary to prove the charge: Provided that if, in the case of any witness, a signed statement is not readily available, a precise of the evidence given by that witness may be included instead of a signed statement;
(d) an oath or affirmation shall be administered to a witness making a statement for inclusion in an abstract of evidence, but where necessary, sworn statements previously made may be used.
(2) When an abstract of evidence has been made in accordance with sub-rule (1), a copy of it shall be handed over to the accused who shall be cautioned in the following terms:- "This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, after you have read it, anything that you may say regarding the abstract will be taken down in writing and may be given in evidence."
(3) Any statement made by the accused after he has read the abstract of evidence shall be taken down in writing on oath or affirmation and the accused shall be asked to sign the statements so taken down. The statement shall be signed by the officer who recorded the abstract of evidence and may also be signed by an officer or a junior commissioned officer as witness. The statement and a certificate by the person who recorded the statement stating that the accused was duly cautioned in accordance with this rule, shall be attached to the abstract of evidence and shall form part of it The certificate shall be in the form set out in the Fifth Appendix to these Rules."
97. "349.
291. Summary of Evidence - Alterations and obliterations. With reference to PAA Rule 13 (6) and Note 6 thereto, the following procedure will be adopted in all cases where a summary of evidence is found to contain passages inadmissible in evidence or otherwise objectionable, which, if read by the President or members of the Court, may prejudice them against the accused:--
(a) The Original Summary of Evidence, signed by the witnesses, will be mutilated in any way nor any attempt made to cover up or cut out the offending passages. It will NOT, however, be laid before the Court but will be in the possession of the prosecutor at the trial for production to the Court should any question be raised upon it:
(b) Typed copies of the Summary of Evidence will be prepared as follows:--
(1) Complete copies in which the passages which offend against the rules of evidence or which the prosecution for some other reason does not intend to adduce at the trials, will be indicated by being marked in some distinctive way (e.g. By brackets in red ink and by having a line drawn through them, care being taken that the whole of the matter contained in the document can easily be read). The copies will be supplied to the Prosecutor, the accused, and the Judge Advocate, if any.
(2) A copy, from which the passages referred in sub-clause (1). Above been omitted, cut out or effectively obliterated, will be supplied to the President and will be laid before the Court.
98. Note.--It may not be practicable to follow the above procedure in operational areas, but in no case will any part of an original Summary of Evidence be defaced in such a way as to make it illegible."
99. I am, therefore, of the view that the accused officers are entitled to the copies of these statements on demand in accordance with Rule 13A ibid and A.R.(R)349.
100. The third objection of the petitioners relates to the holding of trial of accused officers by F.G.C.M. In camera. PAA Rule 147 and Para. 34 of Chapter IV of Part I of Pakistan Manual of Military Law, Volume I which are relevant in this regard read as follows:- - "PAA Rule 147: "147. Adjournment.--(1) A Field General Court Martial may adjourn from time to time and place to place and may when necessary view any place.
(2) The proceedings shall be held in open Court, in the presence of the accused, except on any deliberation among the members when the Court may be closed.
101. Para. 34 of Chapter IV, Part I: "34. Opening of Court.--The Court is now open, and the public, whether military or otherwise (including the press), may be admitted so far as accommodation permits. It may be closed at any time to enable the members to deliberate in private (PAA Rule 67).
102. A Court Martial is an open Court like other Courts of justice, but it has inherent powers to sit in camera if such course is necessary for the administration of justice."
103. No doubt the Court Martial trying an accused is vested with the discretion to hold the trial in camera if it is found necessary for administration of justice. However, the scheme of the provision quoted above clearly support the view that the trial of an accused person before a Court Martial should be open to public and press like an ordinary criminal trial. Therefore, unless there are some very compelling reasons justifying the camera trial of the accused officer, the trial should be open to public. Keeping in view the controversial background of the present case, needless to mention here, that open trial inspire public confidence in the judicial process while camera proceedings give rise to suspicions and misgivings in the mind of common man. However, as all the facts not before us, I leave the final decision to hold the trial of the accused officers either in camera or in an open Court to the members of F.G.C.M., who I am confident will decide the issue objectively keeping in view the provisions of P.A.A. Rules 147 and Para 34 of Chapter IV, Part I of Pakistan Manual of Military, and the observations made above.
104. It was lastly argued by the learned counsel for the petitioners that in view of prejudicial propaganda in press against the accused by the official agencies before commencement of trial, it is not expected that the accused officers will get a fair trial in the case. It is a cardinal principle of criminal jurisprudence that a person accused of an offence is presumed to be innocent unless he is found guilty by the Court. Therefore, press comments on the guilt of the accused before and during his trial are not permissible as they offend against the principles of fair trial. I may, however, add here that the press reports on the arrest, detention and trial of accused officers produced before us in the case were mostly based on the statements of the leaders of various political parties and as such these reports cannot be treated as representative of the views of the military authorities who are trying the accused officers. Apart from it, the President and the members of F.G.C.M. Took oath to administer justice according to Pakistan Army Act, without partiality, favour or affection, before entering upon their office as member of the F.G.C.M. I am, therefore, in no doubt, that members of F.G.C.M. Will decide the case before them strictly in accordance with the law and the terms of their oath, on the basis of the evidence which may be produced in the case before them, keeping in view the observations made hereinabove in this judgment, without being influenced in any manner by the reports appearing in press against the accused officers.
105. Order accordingly.
106. (Sd.)
107. SAIDUZZAMAN SIDDIQUI, J.
108. MUKHTAR AHMAD JUNEJO, J.---My brother Saiduzzaman Siddiqui, J. Has been good enough to send me draft of the judgment authored by him in the following matters:--
(i) Mrs. Shahida Zahir Abbasi v. President of Pakistan and others (C.P. No,1 of 1996) (In respect of Trial of Major-General Zahirul Islam Abbasi);
(ii) Brigadier Mustansar Billah v. Islamic Republic of Pakistan and others (C.P. No,7 of 1996);
(iii) Muhammad Nawaz v. President of Pakistan and others (C.P. No,8 of 1996) (In respect of Trial of Colonel Muhammad Azad Minhas);
(iv) Colonel Anayatullah Khan v. Islamic Republic of Pakistan and others (C.P. No,9 of 1996);
(v) Mrs. Nayyar Hamid v. President of Pakistan and others (C.P. No,11 of 1996) (In respect of trial of Lieutenant-Colonel Dr. Muhammad Hamid).
109. For the reasons being given below, I am unable to agree with His Lordship, that this Court can exercise its jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter mentioned as the Constitution) in said matters.
110. Admittedly Major-General Zahirul Islam Abbasi, Brigadier Mustansar Billah, Colonel Muhammad Azad Minhas and Colonel Anayatullah Khan are facing trial before Field General Court Martial at Attock, convened under section 84(a) of the Pakistan Army Act by the Commander, Rawalpindi Logistics Area, being holder of warrant "A" issued to him by the Chief of the Army Staff (COAS) under section 81 of the Pakistan Army Act and being empowered to do so by the COAS under Special Pakistan Army Order No,12 of 1978. Said officers of Pakistan Army have been charged as below: First Charge PAA Sec.
111. 59 (against all accused)Committing a civil offence, that its to say, conspiring to wage war against Pakistan, an offence punishable under section 121-A of the Pakistan Penal Code, In that they together, at Rawalpindi, Mangla and elsewhere, between the period from May 1995 to September 1995, alongwith PA-12680 Colonel Liaqat Ali Raja and others conspired to wage war against Pakistan so as to overthrow the Federal Government of Pakistan by means of criminal force.
112. Second Charge PAA Sec. 55 (Altn to the first charge against accusedConduct to the prejudice of good order and military discipline, In that he at the places and period mentioned in the first charge, knowing the existence of a conspiracy No.1 Zahirul Islam Abbasi only):mentioned in the first charge, improperly did not report the matter to higher authorities concerned.
113. Third Charge PAA Sec.
114. 55 (Altn to the first charge against accused Muhammad Azad Minhas No. 3 only)Conduct to the prejudice of good order and military discipline, In that he at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned.
115. Fourth Charge PAA Sec.
116. 55 (Altn to the first charge against accused Anayatullah Khan No. 4 only)Conduct to the prejudice of good order and military discipline, In that he at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned.
117. Fifth Charge PAA Sec.
118. 55 (Altn to the first charge against accused No.2 Mustansar Billah only)Attempting to seduce any person in the military forces of Pakistan from his allegiance to the Government of Pakistan, In the he, at Quetta, during May 1995, attempted to seduce PA 12621 Colonel Muhammad Iqbal of Electronic Warfare Directorate, GHQ, from his allegiance to the Government of Pakistan ny asking him to prepare a plan to neutralize the existing telephone communication system at Rawalpindi Iqbal's) support for furthering the design of the conspiracy mentioned in the first charge."
119. It appears from Constitution Petition No,8/96 that on 8-9-1995 at about 8-30 a.m. Datsun Car No,MNO-615 was intercepted by Customs authorities near Hango-Showk Bypass, Kohat City and on inspection said car was found to be loaded with some arms and ammunition. Maqsood Ahmed who was driving said car, was taken into custody but no case under Customs Act or Army Act was registered at any police station and the recovered articles along with persons in the car including driver Maqsood Ahmed were handed over to Army custody. Army authorities investigated the case through S.I.B. On the basis of evidence on record, Army authorities arrested Major-General Z.I.
120. Abbasi on 26-9-1995, Brigadier Mustansar Billah on 18-9-1995, Colonel Azad Minhas on 26-9-1995, Lieutenant-Colonel Dr. Muhammad Hamid on 28-9-1995 and Colonel Anayatullah at the end of September 1995. It appears that Dr. Muhammad Hamid has not been arraigned as an accused.
121. In all these petitions, the common prayer was for release of the concerned officers facing the trial before FGCM. There were also prayers that Fundamental Rights enshrined in the Constitution under Articles 9, 10 and 14 be restored to the accused officials and they be shifted to their houses. The petitioners were not prepared to call arrest of said officers as "arrest" and they alleged that the accused officials were abducted and subjected to torture and that the witnesses cited against them were also subjected to torture. Constitution of the FGCM was challenged on the grounds that such Court cannot be constituted in peace time and that its constitution was not according to law as all the five officers constituting the Court, were not superior in rank to Major-General Z.I. Abbasi.
122. In Petition No,1/96, the allegation was that entire Army had become party against the accused officials and constitution of the Court was mala fide and ordered by an official not competent to do so. Violation of some of the provisions of Army Act and Pakistan Army Rules was alleged.
123. Jurisdiction of this Court was invoked under Article 184(3) of the Constitution, 1973 on the ground that the matter was of public importance pertaining to violation of some of the fundamental rights.
124. Notice of these petitions was issued to the COAS as well as the Federal Government and the Attorney-General of Pakistan. Written statement in respect of each of the petitions was filed separately. It was averred by the Federal Government in the written statements that no violation of fundamental rights has taken place and hence the petitions were not maintainable under Article 184(3) of the Constitution, 1973. Accused officials were said to be required in connection with the investigation of a case against them and they were said to have been properly arrested under the Army Act. It was added that the Field General Court Martial being Court of special jurisdiction, was not amenable to supervision or control of any Court of justice. The accused officials were said to have been taken into custody under orders of the COAS. In the written statement filed in Constitution Petition No,11/96, it was stated that Lieutenant Colonel Muhammad Hamid was required in connection with investigation of the case against the remaining accused officers, but he was not under custody. That Lieutenant-Colonel Muhammad Hamid had availed leave of 19 days in December 1995 and January 1996 and was at liberty to go and reside with his family after his discharge from AFIC, Rawalpindi where he was admitted and where he was accessible to his family members like any other patient.
125. Mr. K.M.A. -Samdani, Advocate Supreme Court, argued for the petitioners in Petitions Nos.1/96 and 11/96. Mr. Maqbool Ilahi Malik, Advocate argued for the petitioners in Petitions No,8/96 and 11/96. Mr. Qurban Sadiq Ikram, Advocate argued for the petitioners in Petition No,7/96 while Mr. Khalil Ahmed, Advocate argued for the petitioner in Petition No,9/96. Mr. M. Jamil Qazi, Attorney for Pakistan appeared in Court on Court Notice and represented the Federation of Pakistan in all the petitions.
126. All the learned counsel appearing for the petitioners in the said petitions argued that these petitions were maintainable under Article 184(3) of the Constitution, 1973 because they raise important questions of public importance concerning violation of Articles 9, 10 and 14 of the Constitution. Learned counsel criticized the arrest, the detention and the trial of the concerned Army Officers by Field General Court Martial (FGCM) whose constitution was challenged. In particular it was argued that the Field General Court Martial can be constituted only in times of war and its formation in times of peace to try Army Officers was illegal and violative of Pakistan Army Act as in peace time such officers can be tried by a General Court Martial. It was next argued that constitution of the Field General Court Martial was by an authority not competent to do so.
127. Reference was made to Army Regulations, Vol II (Instructions) A.R.I. And it was pointed out that this matter did not pertain to disciplinary action. It was added that the members of Field General Court Martial can be drawn from different corps, while in this particular case they were drawn from Pindi Corps. Learned counsel for the petitioners complained of non-compliance of the provisions contained in the Army Act by the authorities and pointed out that the order of attachment of the under-trial officers was passed by an incompetent authority; that the Director-General Military Intelligence at whose instance arrest of army personnel had taken place, was made Lieutenant- General of the corps at Rawalpindi; that the convening officer of the Field General Court Martial was Log Area Commander over and above Brigadier of Attock who was ignored; that the army personnel at the time of their arrest were not informed about nature of their arrest being open or otherwise; that President of Field General Court Martial was junior in rank to principal accused in the case, namely, Zahirul Islam Abbasi; that the army personnel arrested were not produced before their respective commanders within forty-eight hours and that the trial was being held in camera.
128. It was added that the personnel arrested were tortured and harassed mentally as well as physically; and that every person cited as prosecution witness was shown to have participated in the alleged offence, when Army Act was silent about giving pardon to a co-accused and producing him at the trial as an accomplice. It was also argued that the summary of evidence recorded by an officer of the rank of Brigadier, had been tampered with and copies of the summary of evidence supplied to the accused were not the same which were recorded.
129. Mr. Samdani re-argued the matter after the Court was addressed by the learned Attorney-General.
130. He conceded that the Army Act was covered by the protection afforded by clause (3) of Article 8 of the Constitution, but made it clear that neither the Army Act nor the Rules and Regulations made under it were challenged by the petitioners. In respect of clauses (3) and (5) of Article 199 of the Constitution, Mr. Samdani argued that the constraints contained by the same were applicable, when the matter is before the High Court under Article 199 of the Constitution and not before the Supreme Court under Article 184(3) of the Constitution. In this context learned counsel was of the view that the constraints contained by Article 199 of the Constitution were applicable to the Constitution petitions pending before the High Courts while the constraints contained by Article 184(3) of the Constitution were applicable to similar petitions pending before the Supreme Court. In other words, as per Mr. Samdani if the Supreme Court while exercising the powers under Article 184(3) of the Constitution wanted to pass an order of the nature mentioned in Article 199 of the Constitution of Pakistan, it was not subject to the restraints contained by the latter Article and that if the High Court while exercising powers under Article 199 of the Constitution wanted to pass an order within the parameters laid down by said Article, it was not subject to the restraints imposec by Article 184(3) of the Constitution on the Supreme Court. Mr. Samdani further argued that powers of this Court under Article 184(3) of the Constitution have been well discussed in the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). Dealing with the point about requirement of a question, with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, being of "public importance", Mr. Samdani argued that the offence allegedly committed is a civil offence punishable under section 121-A of P.P.C. And trial of the Army Officers for such offence by the Field General Court Martial was not an internal matter of the Army but it had public importance. While arguing so, Mr. Samdani, conceded that "public importance" and "public interest" are not synonymous. For making this Court believe that it was a case of public importance, learned counsel went into minute details about alleged treatment of the accused officers before the trial, and about proceedings of the Court Martial and contended that the general public is interested in seeing that the officers indulging in criminal activities were properly punished. That even the MNAs of the country were interested in the matter, which related to integrity of the country. Referring to another ingredient for invoking Article 184(3) of the Constitution viz. Arising of a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. Mr. Samdani pin pointed the events given above, which according to him amounted to violation of Articles 9, 10 and 14 of the Constitution. He argued that non-production of concerned officers, after their arrest, before a Magistrate within a period of 24 hours in terms of Clause (2) of Article 10 amounted to violation of Article 10 of the Constitution. He also referred to section 74 of the Army Act, requiring every Commanding Officer to take care that a person under his command when charged with an offence, is not detained in custody for more than 48 hours after committal of such person into custody, unless the investigation within that period seems impracticable. Removal of the principal accused and the other accused from their places and handing over of their custody to Special Investigation Cell and their alleged torture, were said to be amounting to violation of Articles 9 and 14 of the Constitution. The procedure of pre-trial was challenged. There was a host of other allegations about the manner in which the detenus were kept and treated. Mr. Samdani went to the extent of seeking habeas corpus relief in these petitions. Without taking into consideration the provisions contained in clause .(3) of Article 8 of the Constitution, he posed a question, as to, why a citizen of this country on joining Armed Forces should lose the Fundamental Right enjoyed by him.
131. He pleaded fair trial for the concerned officers in accordance with the Army Act and its Rules and Regulations. It was also argued that Field General Court Martial was convened by a Brigadier of the Log Area, which was not illegal but was mala fide. Mr. Samdani challenged appointment of Major- General Zahid Hussian as Member of the Court Martial on the ground that he was interested to succeed Lieutenant-General Nazar Hussain Shah, head of Air Defence Command on latter's retirement and he would be promoted if he delivered goods. It was conceded that Major-General Iftikhar was already promoted as Lieutenant-General. Concluding, Mr. Samdani argued that all the illegalities perpetrated, had to be undone and then the trial was to proceed afresh under the law after compliance of the legal provisions and rules. In support Mr. Samdani cited the cases of:
(i) Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416);
(ii) Sharaf Faridi and others v. Federation of Islamic Republic of Pakistan (PLD 1989 Kar. 404);
(iii) Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and others (PLD 1990 Kar. 9);
(iv) Human Rights Case No,1 of 1992 (decided on 22-2-1993) (1993 SCMR 2001);
(v) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473);
(vi) Syed Wasey Zafar and others v. Government of Pakistan and others (PLD 1994 SC 621);
(vii) Brig (Retd.) F.B. Ali and another v. State (PLD 1975 Lah. 999); Mr. Maqbool Ilahi, learned counsel for Colonel Azad and Colonel Inayatullah gave history of this case right from interception of a Car No,MNO-715 on 8-9-1975 at 8-00 a.m. Near Green Hotel, Kohat by Customs authorities, who caught at the spot Saifullah Akhtar and Sepoy Maqsood and handed over their custody to Army authorities without registration of any case under section 154 of Cr.P.C. It was stated that subsequently Saifullah Akhtar was released and he was offered to be cross- examined by the accused. Mr. Maqbool Ilahi alleged violation of Article 4 besides Articles 9, 10 and 14 of the Constitution. Colonel Azad was said to have been arrested on 26-9-1995 without being informed about the charges against him and without his being given any legal assistance. He was allegedly tortured and brought before the Court on 26-10-1995. Mr. Maqbool Ilahi was vociferous in arguing that there was not an iota of evidence against Colonel Azad. Learned counsel referred to various provisions of the Pakistan Army Regulations and the Pakistan Army Act and the Army Rules.
132. Mr. Maqbool Elahi pointed out that investigation in the case was ordered by Lieutenant-General Ali Quli Khattak as Director-General, Military Intelligence and he ordered arrest of all the accused officers and subsequently he was made Corps Commander of 10 Corps. That his subordinate Brigadier Ishaq, Log Officer has formed the Field General Court Martial. Mr. Maqbool Ilhai took exception to M/s. Zahid Ehsan and Shahid Niaz as Members of the Court Martial. Holding of the Trial in camera was challenged. Mr. Maqbool Ilahi cited the cases of:
(1) Darshan Masih v. The State (PLD 1990 SC 513);
(2) Khalil-uz-Zaman v. Supreme Appellate Court, Lahore (PLD 1994 SC 885);
(3) General Secretary v. Director, Industries (1994 SCMR 2061);
(4) Ms. Shehla Zia v. WAPDA (PLD 1994 SC 693);
(5) The Employees of the Pakistan Law Conilaission v. Ministry of Works (1994 SCMR 1548);
(6) Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries (1993 SCMR 2158).;
(7) I.A. Sharwani and others v. Government of Pakistan (1991 SCMR 1041); and
(8) Brig. (Retd.) F.B. Ali and another v. State (PLD 1975 SC 506).
133. After concluding his arguments, Mr. Maqbool Ilahi again stood up to argue that Major-General Zahirul Islam could not have been placed in custody of Zahid Hassan in violation of Pakistan Army Act and the Army Regulations. He objected to appointment of Mr. Sherwani belonging to Judge Advocate Branch as Prosecutor in the case.
134. Mr. Qurban Sadiq Ikram, learned counsel for Brigadier Mustansr Billa adopted the arguments of M/s. Samdani and Maqbool Ilahi. He argued that Brigadier Mustanser Billa was arrested on 18-9- 1995. He had grievance about non-supply of copies of evidence to the accused officers but conceded that inspection of evidence was allowed. He reiterated that it was a case of public importance because extraction of evidence from the witnesses through torture amounted to fabrication of case by the investigating officers. He added that the question of public importance was, as to whether an investigating agency can fabricate a case by extracting evidence. He complained that his client was subjected to torture and his dignity was lowered in violation of Article 14 of the Constitution. Disagreeing with Mr. Samdani, Mr. Qurban Sadiq Ikram said that he did not stand for re-investigation of the case, but he wanted the evidence collected against the accused to be ignored for said reason.
135. Mr. Muhammad Jamil Qazi, learned Attorney-General of Pakistan appearing on Court notice as well as on behalf of respondents 2 and 3 challenged maintainability of the present petitions, by arguing that they were in the nature of habeas corpus petitions which cannot be entertained in respect of the persons being detained to face criminal charge in a validly constituted Court. It was further argued that the instant petitions concerned individual grievances of the detenus which were not of "public importance" to attract the provisions contained in Article 184(3) of the Constitution of Pakistan. Learned Attorney-General further argued that opening words "Without prejudice to the provisions of Article 199" appearing in clause (3) of Article 184 keep provisions of Article 199 intact including its clause (3) although a person seeking relief under Article 184(3) of the Constitution need not be an "aggrieved party" and may not have locus standi in the matter. It was further argued that even if there were some irregularities or illegalities before commencement of the trial, the same did not provide jurisdiction to this Court under Article 184(3) of the Constitution.
136. As regards alleged non-compliance of certain legal formalities by the Trial Court, the same could be addressed to the Trial Court or after conviction to the Appellate Court, as argued. Dealing with the allegations of torture and violation of human rights, learned Attorney General argued that in view of denial of such allegations, there can be no factual inquiry about the same, under Article 184(3) of the Constitution. It was also argued that since issue of writ, in relation to a person who is a member of the Armed Forces of Pakistan or is subject to any law relating to any of those Forces, is barred by clause (3) of Article 199 of the Constitution of Pakistan, hence same bar would apply to exercise of powers by this Court under Article 184(3) of the Constitution, as powers of this Court under said provision are more or less similar to the power enjoyed by the High Court under Article 199 of the Constitution of Pakistan. Learned Attorney-General also referred to clause (5) of Article 199 of the Constitution which shows that a "person" to whom a writ can be issued, excludes from its definition inter alia, a Tribunal established under a law relating to Armed Forces of Pakistan.
137. Learned Attorney-General also referred to clause (3) of Article 8 of the Constitution, which shows that if any law is made which takes away or abridges the fundamental rights as conferred under Chapter 1, Part II of the Constitution, such law shall not be void if it relates to members of Armed Forces or of the Police or of such other forces charged with the maintenance of public order etc. So also any existing law, or custom or usage having the force of law relating to members of Armed Forces or of the Police or of such other forces charged with the maintenance of public order etc. In this context, it was argued that the Army Act related to the members of the Armed Forces and even if any of its provisions takes away or abridges the rights conferred by Chapter 1, Part II of the Constitution, such provision cannot be struck down as void under clause (1) or clause (2) of Article
8. Dealing with trial of army officers by Field General Court Martial, learned Attorney-General was of the view that such Trial was warranted by section 84 of the Army Act and if any army officer has grievance against his Commanding Officer or any superior officer, he can complain under section 168 of the Artily Act. It was next argued that the sum and substance of the prayers made in the Constitution petitions is, annulment of the proceedings being faced by the concerned Afiny Officers and the same cannot be ordered except under section 132 of the Army Act. Learned Attorney- General reiterated that release of the concerned officers cannot be ordered through a petition under Article 184(3) of the Constitution of Pakistan. Learned Attorney-General was vociferous in saying that no Fundamental Right conferred on any detenu was violated, as the detention in question was covered by the words "save in accordance with law"appearing in Article 9 of the Constitution. That the arrest of concerned officers was in relation to their having allegedly committed a criminal offence punishable under a law of the land and hence such arrest did not militate against the provisions contained in Article 10 of the Constitution. It was added that allegations of torture etc. Having been denied, there was no scope for suggesting violation of the provisions contained in Article, 14 of the Constitution. Learned Attorney-General pointed out that most surprisingly, in none of the petitions, the allegations made in the charge-sheet have been denied or challenged to be mala fide. Learned Attorney-General went on to argue that the under trial Army officials were being dealt with in accordance with the law and they were being tried by a Court consisting of five Members and hence there was no violation of any fundamental right. The most pertinent point argued by the learned Attorney-General was, that the competency of the Court Martial cannot be challenged by any Court, a's per section 133 of the Army Act which had protection of Article 8(3) of the Constitution, 1973 and that this Court under Article 184(3) of the Constitution, is debarred from making an order of the nature mentioned under Article 199 of the Constitution, 1973. Developing his argument further, learned Attorney-General argued that as per clause (3) of Article 199 of the Constitution, an order shall not be made under clause (1) of said Article on the application made by or in relation to a person who is member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of the Armed Forces or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. Learned Attorney-General further argued that under Article 184(3) of the Constitution, only an order of the nature mentioned in Article 199 of the Constitution, 1973 can be passed against a "person" defined under clause (5) of Article 199 of the Constitution, 1973. In other words, no order which can be passed under Article 199, will be passed against the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan. While summing up learned Attorney-General pointed out that the propositions he was raising were (i) that the petitions under Article 184(3) of the Constitution of Pakistan were not maintainable; (ii) that there was clear ouster of jurisdiction to be exercised by this Court and (iii) that the nature and stage of the trial is such that it cannot be stifled. About Point No, (i), it was argued that the individual grievances of the under trial officers, cannot raise a point of public importance to attract provisions of Article 184(3) of the Constitution. On point (ii), it was argued that mind of framers of Constitution can be read from the language used in Article 8(3) and in clauses (3) and (5) of Article 199 of the Constitution. That the Supreme Court of Pakistan having been empowered under Article 184(3) to make an order of the nature mentioned in Article 199 of the Constitution, was subject to the restraints placed by clauses (3) and (5) of Article 199 of the Constitution. In respect of Point No,(iii), it was argued that the Pakistan Army Act, 1952 contains self- contained machinery and its section 133 which is protected by Article 8(3) of the Constitution, bars the jurisdiction of any Court exercising any jurisdiction whatsoever, from entertaining any appeal or application in respect of any proceeding or decision of a Court Martial. That interference with such proceedings would be against the public policy and not in keeping with language and spirit of the Pakistan Army Act.
138. In support learned Attorney-General of Pakistan cited the cases of:--
(i) Ram Sarup v. Union of India and another (A.I.R. 1965 SC 247);
(ii) Muhammad Yakub Khan v. Emperor (A.I.R. 1947 PC 87);
(iii) S.P.N. Sharma v. Union of India (A.I.R. 1968 Delhi 156);
(iv) Major G.S. Sodhi v. Union of India (A.I.R. 1991 SC 1617);
(v) Muhammad Nawaz v. The Crown (P.L.D. 1951 FC 73);
(vi) Syed Wasey Zafar and others v. Government of Pakistan and others (PLD 1994 SC 621);
(vii) Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); (viii)M.S.K. Ibrat v. Commander-in-Chief RPN and others (PLD 1956 SC 264);
(ix) Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 SC 66);
(x) Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 SC 317);
(xi) Muhammad Saeed and others v. Election Petitions Tribunal West Pakistan and others (PLD 1957 SC 91);
(xii) Begum Shamim Afridi v. The Province of Punjab and another (PLD 1974 Lah. 120); (xiii)A. Habib Ahmed v. M.K.G. Scott Christian (PLD 1992 SC 353);
(xiv) State Life Insurance Employees Federation of Pakistan, Karachi v. Federal Government of Pakistan and others (1994 SCMR 1341);
(xv) Abdul Aleem v. Special Judge (Customs), Lahore and others (1982 SCMR 73).
139. Jurisdiction of this Court under Article 184(3) of the Constitution, 1973, is dependent upon the matter before this Court raising a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, 1973. The provisions contained in clause (3) of Article 184 of the Constitution have been interpreted in different decisions given by this Court. In the case of Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 Supreme Court 416 cited by M/s. Samdani and Qazi Muhammad Jamil, certain amendments made in the Political Parties Act, 1962 were challenged as violative of Articles 17 and 25 of the Constitution.
140. Vires of the Freedom of Association Order, 1978 were also challenged as being un-Constitutional and void initio and non-existing as law. In said case it was observed that it is only when the element of "public importance" is involved, that the Supreme Court can exercise its power to issue the writ, while sub-Article (1)(c) of Article 199 has a wider scope, as there is no such limitation therein. According to said case, the opening words "without prejudice" in Article 184(3) mean not affecting, saving or excepting and when read with the words "following thereafter", "to the provisions of Article 199", the expression means no more than to save the provisions of Article 199, without in any way superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. It was laid down in said case that it is for the party who is affected to choose, which of the two forums it wishes to invoke and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184(3), that is, that the element of "public importance" must be involved in the enforcement of Fundamental Rights. That the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the Constitution of Pakistan, 1956 and is exercisable on its own terminology. The word _"make an order of the nature mentioned in the said Article" appearing in Article 184(3) and referring to Article 199, have been highlighted in said case. These words are, as held in said case, specifically referable to the nature of the order in sub-Article (1)(c) of Article 199, giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. It has further been observed in said case that plain language of Article 184(3) shows that it is open-ended and it does not say, as to, who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved. One thing is, however, clear that while hearing a petition under Article 184(3) of the Constitution, the Supreme Court can grant relief only if the element of "public importance" is involved in the enforcement of any of the Fundamental-Rights conferred by Chapter 1 of Part II of the Constitution. There is no departure from this view taken by this Court in the case of The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works etc. 1994 SCMR. 1548 cited by Mr. Maqbool Ilahi, where jurisdiction of this Court under Article 184(3) was further elucidated and it was observed that if there is violation of Fundamental Rights of a class of persons who collectively suffer due to such breach, and there does not seem to be any possible relief being granted from any quarter, due to their inability to seek or obtain relief, they are entitled to file petition under Article 184(3) of the Constitution. The guideline for exercise of jurisdiction under Article 184(3) of the Constitution is: that this Court can make order of the nature mentioned in Article 199, as further observed. In the case of Darshan Masih v. The State, PLD 1990 SC 513 cited by Mr. Maqbool Ilahi, it was emphasised that nature of the orders which can be passed in cases cognizable under Article 184(3) of the Constitution, is also indicated in said Article, that is; such orders as can be passed under Article 199 of the Constitution.
141. In the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore, PLD 1994 SC 885 (cited by Mr. Maqbool Ilahi), it was held that duty of a Court was to administer justice within the four corners of the Code of Criminal Procedure according to the canons of law, regardless of lack of proper assistance by counsel for the parties. It was also held that there can be no case, more fit and proper than said case, for interference under Article 184(3) of the Constitution, as in the said case an offender on conviction was sentenced to death when the offence for which he was convicted was not punishable with death and the convict had no right to file appeal or revision or any other remedy. In the case of Ms. Shehla Zia PLD 1994 SC 693, this Court allowed its jurisdiction under Article 184(3) of the Constitution to be invoked on receiving a letter containing complaint by certain persons about setting up in their area by WAPDA, a grid station with high voltage transmission lines likely to pose a serious health hazard to the residents of the area particularly the children, the infirm and certain families. It was held that in cases where life of citizens is degraded, and its quality is adversely affected and health hazards are created, this Court may grant relief under Article 184(3) of the Constitution. The case of General Secretary, West Pakistan Salt Miners Labour Union, CBA, Khewra 1994 SCMR 2061 is a case of public interest litigation, where complaint was made against the Director, Industries and Mineral Development, Government of the Punjab for granting a lease for Coal Mines, resulting in reduction of water catchment area, leading to pollution of water reservoir by poisonous water coming out of the Mines, creating health hazard for residents and mine workers of Khewra. In said case, it was observed that in cases where question of public importance with reference to enforcement of Fundamental Rights is involved, direction or order of the nature as mentioned in Article 199 of the Constitution, can be given or passed by the Supreme Court, while exercising jurisdiction under Article 184(3) of the Constitution. It was also observed that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions of being an "aggrieved person", and other similar techincal objections, cannot bar the jurisdiction of the Court. Power of this Court under Article 184(3) of the Constitution, was defined in the said case and it was held that this Court has the power to make order of the nature mentioned in Article
199. In the case of I.A. Sharwani 1991 SCMR 1041 it was held that where the proceedings are in the nature of public interest litigation, the power conferred on this Court under clause (3) of Article 184 of the Constitution, is to be exercised liberally unfettered with technicalities, in order to advance the cause of justice and public good. This was a case in respect of grant of pension to the retired civil servants. In none of the above cited cases proceedings or constitution of a Court Martial was impugned.
142. The cases cited by Mr. K.M.A. Samdani require to be discussed. In the case of Sharaf Faridi and others v. The Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404, it was observed that. a Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand, even if such a relief has not been expressly claimed, provided the relief to be given is within the compass of the jurisdiction of the Court. In said case it was also observed that the governing principle of interpretation of Constitution is, that as the Constitution is a document which affects the life, liberty and rights of the people, it has to be kept alive to meet the social, moral, economic, political and legal demands and problems, which may arise from time to time. It was also held, in the said case, that the Constitution should not be interpreted in a narrow and pedantic manner and it should be given liberal and broad interpretation, but any enactment which transgresses the limitations placed by the Constitution, would be declared void and in case of a conflict in the provisions of the Constitution, they should be interpreted harmoniously so that without violating the other, both can be practised and coexist. In the case of Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan PLD 1990 Kar. 9 the view taken was that under Article 184(3) of the Constitution, 1973 there is no requirement that only an aggrieved party can press into service provisions of said Article and that the Supreme Court can entertain a petition at the behest of any person, whereas under Article 199, a writ other than a writ of habeas corpus and a writ of quo warranto, can be prayed for only by an aggrieved party. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 St 473 an observation taken from the case of Benazir Bhutto PLD 1988 SC 416, reads as below:-- "Article 184(3) of the Constitution, 1973 therefore provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or a class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case."
143. Another observation taken from the case of Benazir Bhutto in the case of Mian Muhammad Nawaz Sharif, reads as below:-- "As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice, such as in the present case where there was a denial of justice, as a result of the proceedings being dilatory.
144. In Human Rights Case No,1 of 1992 (1993 SCMR 2001) it was emphasised that clause (3) of Article 184 of the Constitution read with Article 199 of the Constitution, empowers the Supreme Court to pass any "appropriate" order which should be for the "enforcement" of any of the "Fundamental Rights" conferred by Chapter 1 of Part II of the Constitution. In the case of Syed Wasey Zafar v.
145. Government of Pakistan PLD 1994 SC 621 which was a case of Yellow Cab Scheme, it was observed that the provisions contained in Article 184(3) of the Constitution indicate, that without prejudice to the provisions of Article 199 of the Constitution, the Supreme Court has been conferred the power to entertain a petition directly, if the case involves a question of public importance and such question pertains to the enforcement of any of the Fundamental Rights contained in Chapter 1 of Part II of the Constitution. It was also held that the scope of Article 199 which confers jurisdiction on the High Court, is much wider than the jurisdiction conferred on the Supreme Court under Article 184(3) of the Constitution, inasmuch as, a High Court not only can enforce a Fundamental Right under clause (2) of Article 199, but can also pass an appropriate order in the matters covered by sub- clauses (a) and (b) of clause (1) of Article 199 of the Constitution, 1973.
146. Some of the cases cited at the Bar, are from Indian Jurisdiction and they require to be examined. In the case of SPN Sharma v. Union of India A.I.R. 1968 Delhi 156, it was observed that the Courts and Tribunals constituted by or under any law relating to the Armed Forces, did not come under superintendence of a High Court for purposes of Article 227 of the Constitution (corresponding to Article 203 of the Constitution of Pakistan, 1973). It was also held that a habeas corpus proceeding is not admissible, so as to enable a Civil Court to exercise a supervisory control over or review procedural errors generally in the proceedings of the Court Martial. In the case of Major G.S. Sodhi v.
147. Union of India AIR 1991 SC 1617 it was held by the Supreme Court of India, that a roving enquiry cannot be made into the allegations about non-compliance of some of the requests made by the accused facing Court Martial, when such allegations were controverted and when the officer ordering summary of evidence against the accused officer had specifically stated that he had no bias against the accused officer. In the case of Ram Sarup v. Union of India and another AIR 1965 SC 247 it was held that each and every provision of the Army Act, 1950 is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account become void. Similar construction of the provisions of Pakistan Army Act is permissible in Pakistan, in view of clause (3) of Article. 8 of the Constitution of Pakistan, 1973. It was further held in the case of Ram up that the provisions of section 125 of the Army Act, 1950 (giving discretiort to certain officers specified in the section to decide whether any particular accused be tried by a Court Martial or by a Criminal Court) are not discriminatory and do not infringe the provisions of Article 14 of the Indian Constitution. The provisions contained in said Article are identical to the provisions contained in Article 25 of the Constitution of Pakistan, 1973. In the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries 1993 SCMR 2158 it was observed that a public authority possesses powers only to use them for public good and this imposes duty upon the public authority to act fairly and to adopt a procedure which is "fair play in action". That due observance of such obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities with said element forming a necessary component of the decision making process in all State actions. These observations were made, by the Supreme Court of India, in. An appeal moved under Article 136 of the Constitution of India, by a person whose highest tender for purchase of stocks of damaged food grains, was refused. In the context of such facts, it was held in said case (1993 SCMR 2158) that in contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of India, of which non-arbitrariness is a significant facet. Said authorities from Indian Jurisdiction show, that the Supreme Court cannot hold a roving enquiry to examine grievances of the persons facing Court Martial, that a law validly passed by the Parliament cannot be challenged on the ground of its being inconsistent with the Fundamental Rights conferred on members of the Armed Forces, and that a public authority possesses power only to use it fairly and ,for public good.
148. Article 32 of the Indian Constitution empowers the Supreme Court of India to enforce the Fundamental Rights mentioned in Part III of the Constitution of India. Other Courts can exercise such power, only when empowered to do so by the Indian Parliament under clause (3) of Article 32.
149. It is again for the Indian Parliament to determine by law, to what extent any of the rights conferred by Part III of the Constitution shall, in their application to the members of the Armed Forces or other forces charged with maintenance of public order, be restricted, vide Article 33 of Indian Constitution. In India, the enforcement of any of the Fundamental Rights conferred by Part III of the Constitution, by the Supreme Court of India is not dependent upon existence of a question of public importance.
150. A resume of the case-law shows that no hard and fact rules have been laid down to determine, whether in a given case a question of public importance, with reference to the enforcement of any of the Fundamental Rights referred to in clause (3) of Article 184 of the Constitution, is involved. This appears to have been left over to the Judges hearing a petition under Article 184 (3) to determine, whether in the case before them a question of public importance, with reference to the enforcement of any of the Fundamental Rights mentioned in clause (3) of Article 184, is involved.
151. Learned counsel for the petitioners were vociferous in arguing that arrest and trial of the concerned Army officers and alleged violation of their Fundamental Rights, has given rise to a question of public importance with reference to enforcement of the Fundamental Rights conferred by Articles 9, 10 and 14 of the Constitution. In reply learned Attorney-General argued that it was an ordinary criminal case involving 4/5 Army officers, accused of a criminal charge and thus no question of public importance regarding Fundamental Rights had arisen. On the other hand, it was reiterated that a person does not lose his Fundamental Rights by joining army and that the under trial Army officers continued to enjoy the Fundamental Rights as enshrined in the Constitution. Except the usual publicity given to this case by the print media, there is little to show that trial of a few officers by Court Martial has raised any question of public importance, in respect of enforcement, of any Fundamental Right mentioned in Chapter 1 of Part II of the Constitution.
152. I agree with learned Attorney-General that trial of four Army officers by a Court Martial validly constituted under the Army Act, does not raise any question of public importance, muchless question regarding enforcement of any of the Fundamental Rights and on that ground also, this Court lacks jurisdiction. Even if the matter is stretched to bring it within the ambit of Article 184(3) of the Constitution, then too, the only power available to this Court is "to make an order of the nature mentioned in the said article", meaning thereby that this Court can make an order of the nature which can be issued by a High Court under Article 199 of the Constitution. This is clear from perusal of the cases of Miss Benazir Bhutto PLD 1988 SC 416, Employees of Pakistan Law Commission 1994 SCMR 1548 and Darshan Masih PLD 1990 SC 513. An order which can be passed under Article 199 is subject to the restraints placed by clauses (3) and (5) of Article 199 of the Constitution. It was conceded even by Mr. Samdani, that an order which can be passed under Article 199 of the Constitution, is subject to the restraints provided in said Article. This includes the restraints mentioned under clauses (3) and (5) of the said Article. It is difficult to agree with Mr. Samdani, and for that matter with learned counsel appearing for other, petitioners, that this Court under Article 184(3) of the Constitution can make any order, notwithstanding the restrictions placed by clauses
(3) and (5) of Article 199 of the Constitution. The concluding words of clause (3) of Article 184 of the Constitution of Pakistan, 1973, empower this Court to "make an order of the nature mentioned in Article 199". This shows that this Court is intended by Article 184(3) to pass orders, which can be passed by a High Court under Article 199 of the Constitution, in respect of a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. Hence the restraints carried by clauses (3) and (5) of Article 199 applicable to issue of a writ by High Court, would equally apply to issue of such writs under Article 184(3) of the Constitution.
153. It is worthy to note that primarily the power to issue writs of different kinds in Pakistan has been given by the Constitution of Pakistan under Article 199 to the High Courts, while such power has been conferred upon the Supreme Court of Pakistan only in respect of enforcement of those Fundamental Rights which are conferred by Chapter 1 of Part II of the Constitution, provided a question of public importance with reference to their enforcement is involved. This position is radically different in India, where according to Article 32 of Indian Constitution, only the Supreme Court of India can be moved by appropriate proceedings for enforcement of the rights conferred by Part III of Indian Constitution. Of course, as per clause (3) of Article 32, the Indian Parliament may by law empower any other Court, to exercise within its local limits all or any of the powers exercisable by Indian Supreme Court under clause (2) of said Article. This shows, that in Pakistan it is the Constitution itself, which empowers the High Courts to exercise the powers, the like of which have been conferred by the Indian Constitution only on the Supreme Court of India, only if empowered to do so, by their Parliament. Some of such powers relating to enforcement of Fundamental Rights conferred by Chapter 1 of Part II, can be exercised by the Supreme Court of Pakistan under the Constitution of 1973, subject to existence of a question of public importance, but only to the extent of making an order of the nature mentioned in Article 199. This comparison ex facie shows that in the scheme of judicial structures, the Constitution of Pakistan primarily vests the power of judicial review in the High Courts and makes the Supreme Court a Court of appeal, while contrarily the Indian Constitutional scheme gives the primary jurisdiction to the Supreme Court and delegates the Parliament with power to confer similar powers on any other Court, by sub- Constitutional legislation. As the Indian High Courts cannot exercise more powers than the powers conferred on the Indian Supreme Court under clause (2) of Article 32 of their Constitution, similarly the words "have the power to make an order of the nature mentioned in said Article", used in clause
(3) of Article 184 of the Constitution of Pakistan, 1973, restrict powers of the Supreme Court, to make within its domain, orders of the nature mentioned in Article 199. Clause (3) of Article 184 of the Constitution, is an enabling provision, arming the Supreme Court of Pakistan with powers, which according to scheme of the Constitution were conferred on the High Courts.
154. With due respects I am unable to persuade myself to agree with the interpretation placed by my learned brother Saiduzzaman Siddiqui, J. On the words "without prejudice to the provisions of Article 199" appearing in clause (3) of Article 184 of the Constitution. Meaning of said words as given in the case of Miss Benazir Bhutto PLD 1988 SC 416 is "not affecting, saving or excepting". Use of said words shows that in relation to the action proposed to be taken under Article 184(3) of the Constitution, the provisions contained in Article 199 would be very much alive and forceful. Had the provisions of Article 184(3) of the Constitution been self-contained, there was no necessity of using the words: "Have the power to make an order of the nature metioned in said Article" in it. In this way Article 184(3) of the Constitution cannot be divorced from Article 199 as the former Article is ineffective in absence of the latter. Had the Constitution-makers any intention to make Article 184(3) of the Constitution self-contained and independent of Article 199 of the Constitution, they would have used the words "Notwithstanding anything contained in Article 199" as opening words of Article 184(3) of the Constitution.
155. Even if assuming that the Constitution-makers wanted a parallel jurisdiction to be exercised by the High Courts as well as by the Supreme Court of Pakistan under Articles 199 and 184(3) respectively, the question arises, as to, how the Constitution-makers would prohibit the High Courts from making an order on an application made, by or in relation to a person, who is a member of the Armed Forces of Pakistan in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan, but would allow the Supreme Court of Pakistan to make such an order. This cannot be intention of the Constitution- makers. By making an order in a matter covered by clause
(3) of Article 199, the Supreme Court would be travelling beyond the scope of the words "Power to make an order of the nature mentioned in the said Article" appearing in clause (3) of Article 184.
156. Words "said Article" refer to Article 199 of the Constitution.
157. On exercising Constitutional jurisdiction in favour of a petitioner, a High Court or the Supreme Court has to give direction or make declaration, as the case may be, against a "person" which word is conspicuously used in Items (i) and (ii) of sub-clause (a) of clause (1) of Article 199 and terms (i) and (ii) of sub-clause (b) of clause (1) of Article 199 of the Constitution. Perusal of Article 184(3) of the Constitution in juxtaposition with Article 199 of the Constitution, would indicate that this Court or a High Court exercising writ jurisdiction under the Constitution, can make an order or give direction addressed to a "person" which word is defined under clause (5) of Article 199 of the Constitution, in the following words:- " 'personincludes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a Law relating to the Armed Forces of Pakistan."
158. This leads one to a conclusion that the "person" to whom an order or a direction of the nature mentioned in Article 199 of the Constitution can be addressed, may be anybody described in clause (5) but not the Supreme Court or a High Court or a Court or Tribunal established under the Army Act. For this purpose clause (5) of Article 199 appears to be common, applicable to a High Court exercising jurisdiction under Article 199 or to the Supreme Court exercising jurisdiction under Article 184(3) of the Constitution.
159. As indicated above, it is clear like daylight that an order of the nature mentioned in Article 199, cannot be issued to the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan. In this view of the matter, it can safely be deduced, that this Court while exercising the powers under Article 184(3) of the Constitution has no power to make an order of the nature mentioned in Article 199 of the Constitution, in respect of a Court or a Tribunal established under a law relating to the Armed Forcesof Pakistan. It may also be noted that the limitation envisaged in clause (3) of Article 199, falls within the purview of the "nature" mentioned in the said Article and signifies nature of the orders which can be passed or for that matter which cannot be passed by a High Court in exercise of its writ jurisdiction under Article 199. If that is so, then it follows that such qualification or limitation will have to be mounted and superimposed on the jurisdiction and power of the Supreme Court under Article 184(3). Viewed in this context, except for the removal of the limitation with regard to the question of locus standi and matter of public interest, the jurisdiction conferred on the Supreme Court in the sphere of enforcement of Fundamental Rights is coextensive to that of the High Court under Article 199 of the Constitution.
160. There is another aspect of this matter which seems to clinch the issue, if the language adopted in clause (3) of Article 199 is taken into consideration. Its opening words are significant. Entire clause
(3) of Article 199 of the Constitution is reproduced below:-- "An order shall not be made under clause (1) on application made by or in relation to p person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."
161. Since High Courts have been debarred from passing an order of the nature given in Article 199(3) of the Constitution, there is no scope to conceive that such an order can be passed by the Supreme Court of Pakistan which is enabled by Article 184(3) to pass an order of the nature mentioned in Article 199 of the Constitution.
162. Exercise of a power by a Court is co-relative with jurisdiction and competency of such Court to pass orders of a certain nature. The word "jurisdiction" denotes the authority for the Courts to exercise judicial power. This power is otherwise inherent in the Superior Courts only to interpret, construe and apply the law as a result of a system of division of powers. One cannot stretch jurisdiction and power of the Supreme Court beyond the known Constitutional limits. Clause (2) of Article 175 of the Constitution says that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. In the case of State v. Zia-ur-Rehman PLD 1973 SC 49 one of the principles of Constitutional interpretation enunciated was, that the Courts are creatures of the Constitution, they derive their powers and jurisdiction from the Constitution and must confine themselves within the limits set by Constitution. In the case of Habibul Wahhab A. v. Shaikh Shaukat Ali 1976 Law Notes Supreme Court 626 expression "jurisdiction" used in clause (2) of Article 175 of the Constitution has been explained, as a "legal authority" which a Court has, to decide matters that are litigated before it. The legal authority may be exercised in relation to the subject-matter brought before it for its decision or to the parties appearing before it or as to the area over which the jurisdiction extends, as observed in said case. For a proper assumption of jurisdiction by a Court said conditions must be satisfied, as further observed. As observed in the case of Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457, Article 175 of the Constitution while establishing a Supreme Court of Pakistan, and High Court for each Province and such other Courts as may be established by law, also lays down that no Court shall have any jurisdiction save . As is or may be conferred on it by the Constitution or by or under any law, and unlike the Courts under American Constitution, there is no vesting of judicial powers in Courts and such powers may be conferred on the same by the Constitution or by any law. This shows that all the Courts established by the Constitution including this Court, can act within the four corners of the Constitution and according to the powers conferred on them by the Constitution or by any law.
163. With this position of law, there is no gainsaying of the fact that this Court has no jurisdiction in these matters.
164. The Courts in general refrain from interfering with normal trial of an accused on criminal charges more particularly when such trial takes place before a Court Martial. In the case of Brig. (Retd.) F.B.
165. Ali and another v. State PLD 1975 SC 506 it was held that if the Court Martial has tried a particular case with jurisdiction, then the ordinary Courts of superior jurisdiction will not interfere in exercise of their power of judicial review, merely on the ground that some rule of procedure has not been followed. The same case earlier was pending in the Lahore High Court, under its original Constitutional jurisdiction. Said Court in its judgment reported in PLD 1975 Lahore 999 took note of clause (3) of Article 8 of the Constitution of Pakistan, 1973 and expressed view that the guarantee regarding Fundamental Rights shall not apply to any law relating to the members of the Armed Forces. In the case of Capt. A.W. Meads v. Imperator AIR 1946 Lahore 112 the view taken was that a High Court cannot enquire into the sufficiency of the evidence on which a conviction can be based by the Court Martial, so long as there is evidence. In the case of Muhammad Nawaz v. The Crown PLD 1951 FC 73 it was observed as below:-- "Courts Martial administering statutory military laws are Courts of special jurisdiction not amenable to supervision or control by any judicial body or Court of justice administering the general law, except where they may be found to have acted without jurisdiction or in excess of it. Courts Martial while acting within their proper scope and sphere are supreme and their decisions, subject to revision by the confirming authority, are absolute and final. In this connection, it may be pertinent to observe that while military laws are statutory laws by which discipline is maintained in the armed forces in normal times, martial laws (which in a strictly legal sense are no laws at all are merely exceptional methods adopted by the Military for preserving order and safeguarding the interest and integrity of the State during war or insurrection."
166. In said case two Army officers were tried by two General Courts Martial on different charges and were convicted, and their convictions were challenged without success before the erstwhile Federal Court of Pakistan, which was predecessor of this Court. Even in respect of the civilians being tried on criminal charges in Civil Courts the settled principle being followed by this Court is, that the ordinary course of trial, before the Court concerned, is not stifled. In the case of Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317 this Court observed that if in fact an offence had been committed, justice required that it should be enquired into and tried. That if the accused are not guilty, they have a right to be declared as honourably acquitted by a competent Court. This case was followed in the case of A. Habib Ahmed v. MKG Scott Christian PLD 1992 SC 353 where deflection of ordinary course of trial before the Court concerned, by the High Court exercising special inherent jurisdiction under Article 199 of the Constitution, was abhorred. Case of Ghulam Muhammad was also followed in the case of Abdul Aleem v. Special Judge. Central Lahore and others 1982 SCMR 73 where this Court approved action of the Lahore High Court in refusing to grant relief for annulment of a criminal case through a writ petition, when criminal revision against charging of an accused by the trial Court was already dismissed on the ground that the High Court would not in its discretionary jurisdiction short circuit for the normal procedure of trial as provided by law.
167. For the foregoing reasons, I am clear that no question of public importance with reference to enforcement of any of the fundamental Rights conferred by Articles 9, 10 and 14 of the Constitution, is involved in this case and more over this Court in the instant case does not have the power to make an order "of the nature" mentioned in Article 199 of the Constitution due to barring provisions contained in clauses (3) and (5) of said Article and, lastly, it is against the consistent policy being followed by this Court to hamper a criminal trial, when grievances relating to such trial, about non- compliance of certain procedural requirements, can be brought before the trial Court. Hence while differing with my learned brother Saiduzzaman Siddiqui, J., I order all these petitions to be dismissed.
168. (Sd.)
169. MUKHTAR AHMAD JUNEJO, J.
170. MUHAMAMD BASHIR KHAN JEHANGIRI, J.--I have had the benefit of reading in advance the judgments proposed to be delivered by my learned brethren Saiduzzaman Siddiqui and Mukhtar Ahmad Junejo, JJ. Broadly speaking, I agree with the interpretation put on Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called as the Constitution) by my learned brother Mukhtar Ahmad Junejo, J. And some of the reasons . Which weighed with him in interpreting Article 184(3) of the Constitution. However, because of divergence of opinion between my brethren Saiduzzaman Siddiqui, J. On the one hand and Mukhtar Ahmad Junejo, J. On the other as to the ,true construction to be placed on Article 184(3) of the Constitution, I deem it necessary to briefly record my own views on the point.
2. It is not necessary to reiterate the facts of the case as my learned brethren Saiduzzaman Siddiqui and Mukhtar Ahmad Junejo, JJ. Have already narrated them in all the essential details. It will suffice to observe that Constitutional Petitions Nos.11 and 12 of 1996 are liable to be dismissed in view of the given facts and circumstances. The validity of arrest and detention by the concerned Army Authorities and trial by the FGCM of five army officers (hereinafter referred to as the accused officers) had been challenged on the grounds which have been succinctly formulated by my learned brother Saiduzzaman Siddiqui, J. At pages 13 and 14 whereas these grounds which had been countered by the learned Attorney-General have been cited at pages 15 to 18, therefore, I do not deem it proper to reiterate them lest the judgment is unnecessarily burdened with the repetitions.
3. The above petitions have been filed under Article 184(3) of the Constitution. Article 184(3) ibid reads as under:-- "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
4. The scope of the above-quoted provision of the Constitution was examined for the first time in its true perspective in the case of Ms. Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 wherein the exercise of jurisdiction by this Court was held to be circumscribed by the existence of a question of public importance relatable to the enforcement of any one or more of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. See (i) Darshan Masih alias Rehmay and others v. The State PLD 1990 SC 513, (ii) I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division and others 1991 SCMR 1041, (iii) State Life Insurance Employees Federation of Pakistan, Karachi v. Federal Government of Pakistan through Secretary Commerce and others 1994 SCMR 1341, (iv) Pir Sabir. Shah v. Shad Muhammad Khan and another PLD 1995 SC 66. (v) Amanullah Khan and another v. Chairman, Medical Research Council and others 1995 SCMR 202 and (vi) Malik Hayat v. Supreme Appellate Court of Sindh-II at Karachi and others PLD 1995 SC 505. It is, therefore, clear that the two essential pre-conditions must co-exist in a case before it is taken up by the Supreme Court under its extraordinary jurisdiction under Article 184(3) of the Constitution.
5. On a question as to whether the grievance of the accused officers does fall within the ambit of the 'public importance', Mr. K.M.A. Samdani, learned counsel for the petitioners, placed implicit reliance on the observations of this Court in Ms. Benazir's case supra made at page 491 of the report which read as follows:-- "Lastly is the consideration of the connotation of the expression 'public importancewhich is tagged to the enforcement of the Fundamental Rights as a pre-condition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the Constitutional Rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his human rights of liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression."
6. Nonetheless, it was further elaborated in the succeeding paragraph occurring at page 492 of the report which reads as under:-- "In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence."
7. It would be seen that the instant case is neither "of interest to nor affects the whole body of people or an entire community". The provision of Article 184(3) of the Constitution being open endedas held in Ms. Benazir Bhutto's case the proceedings can either be maintained by an individual whose Fundamental Rights are infracted or by a person bona fide alleging infraction of Fundamental Rights of a class or group of persons. Nonetheless, it has been urged before us on behalf of the respondents that such proceedings would be maintainable if efficacious and speedy remedy under a Statute is not available. In this context, the learned Attorney-General took use through the relevant provisions of the Pakistan Army Act, Army Rules and various provisions of the Army Regulations which demonstrate that the rights of the accused thereunder have been jealously guarded.
8. The plea of the learned Attorney-General that the jurisdiction of all Courts in respect of the proceedings and order of Court Martial as well as the Constitution under the Act is ousted with reference to section 13 of the Army Act and Articles 8(3) and 199(3) of the Constitution was not entertained by Saiduzzaman Siddiqui, J. The reasoning that found favour with my learned brother was that section 133 of the Act barring jurisdiction being sub-Constitutional legislation and notwithstanding howsoever expressly and widely worded, it could not "affect or take away the jurisdiction of superior Courts conferred on them under the Constitution" and, therefore, bar of jurisdiction enacted in section 133 ibid "could not take away the jurisdiction of this Court under Article 184(3) of the Constitution". Similar ouster of jurisdiction under Articles 8(3) and 199(3) of the Constitution raised on behalf of the petitioner was repelled on the strength of the ratio decidendi drawn from the case of Brig. (Rtd.) F. B. Ali and another v. The State PLD 1975 SC 506 wherein the dictum in State v. Zia-ur-Rehman PLD 1973 SC 49 was referred to.
9. Again the bar of jurisdiction within the contemplation of Article 199(3) ibid due to the use of the expression "without prejudice to the provisions of Article 199" in the opening part of Article 184(3) of the Constitution was construed to indicate that "the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of Fundamental Rights... "It was, therefore, concluded that "Article 184(3) does not admit interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Or the latter is subject to limitations mentioned in Article 199(3) of the Constitution".
10. Relying on the cases of Ms. Benazir Bhutto supra, Ch. Manzoor Elahi v. Federation of Pakistan, etc. PLD 1975 SC 66, I.A. Sharwani supra and the Employees of the Pakistan Law Commission v. Ministry of Works and others 1994 SCMR 1548 extensively quoting the relevant excerpts therefrom, my learned brother Saiduzzaman Siddiqui, J. Virtually reached the conclusion that:-- "The news about the arrest, detention and trial of the abovementioned military officers have been widely reported in the national press, based on the official version of the incident as well as reactions of political leaders representing different shades of public opinion. The press reports based on official version of the case against the accused military officers appearing in the national press have not been disowned by the respondents in their comments filed in the above cases. The official version of the case substantially differs from perception of the leaders belonging to major political parties in opposition. The accused officers have been charged for conspiracy to overthrow a Constitutionally-established Government by use of criminal force. The difference in the perception of Government and Opposition leaders about the case against these military officers is likely to cause anxiety in the mind of general public with regard to fairness of trial which is being conducted before a Military Court and is not open to public and press. The armed forces belong to a highly disciplined institution and are held in very high esteem by the public at large for their capabilities not only to defend the geographical boundaries of the country but also for safeguarding its ideological frontiers from being attacked internally or externally. The image of the institution of such a vital importance Must be maintained in the interest of national cohesion. This can be achieved only by inspiring public confidence in the fairness of the trial of these military officers before a Court Martial. I am, therefore, of the view that the above casedo raise a question of great public, importance. The petitioners have raised number of grounds in support of their petitions. Some of these grounds related to alleged contravention of fundamental rights guaranteed by Articles 9, 10 and 14 of the Constitution, while others concern with the fairness of the trial by a Military Court. Therefore, both the jurisdictional requirements of Article 184(3) of the Constitution are present in these cases. I, accordingly, hold that these petitions are maintainable in law before this Court."
11. While concurring in the general discussion on what terms the condition of a case being of "public importance" should be interpreted, I tend to disagree on the conclusion reached that the jurisdictional requirements of Article 184(3) of the Constitution namely, the element of public importance relatable to the enforcement of any one or more of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution are satisfied.
12. It would be noticed from the above excerpt by my learned brother Saiduzzaman Siddiqui, J. That cases were taken to be of 'public importancebecause (i) the news about the arrest, detention and trial of the accused officers had been widely reported in the national press based on the official version of the incident as well as reactions of the political leaders representing different shades of public opinion; (ii) the press reports based on the official version of the case against the accused officers appearing in the national press have not been disowned by the respondents in their comments; (iii) the official version of the case substantially differs from the perception of the leaders belonging to major political parties in the opposition; (iv) this difference of perception between the Government and the Opposition leaders about the case against the accused officers is likely to cause anxiety in the mind of the general public with regard to the fairness of the trial which is being conducted before the FGCM and which is not open to public and press; (v) the image of the Armed Forces, which belong to highly disciplined institution and are held in high esteem by the public at large for their capabilities to defend not only the geographical boundaries of the country but also safeguarding its ideological frontiers from being eroded internally or externally, must be maintained in the interest of national cohesion which can be achieved only by inspiring public confidence in the fairness of the trial of the accused officers before the FGCM; and
(vi) the accused officers have raised a number of grounds in support of their petitions, some of which relate to the alleged contravention of fundamental rights guaranteed by Articles 9, 10 and 14 of the Constitution while others concern with the fairness of the trial of the accused officers.
13. Merely because official version qua the arrest, detention and trial of the accused officer is not in conformity with the reaction of the political leaders representing different shades of public opinion as flashed in the print media is hardly a correct test of the matter being of public importance.
171. Unfortunately, reporting in the print media in our country with few commendable exceptions nowadays is rife with sensationalism and partisanship on either side of the political divide. Again the position of the political leaders on either side of the divide, to say the least, is equally not enviable for many reasons which need hardly be highlighted. Unfortunately at present our country is faced with extreme polarisation. Difference of perception on the version of the case like every incident of some significance between the major political parties on either side of the fence is again unfortunately based not on the propriety but on political motives charged with confrontational politics. This difference of perception between the Government and Opposition leaders like on every other issue of national interest in the country has taken the turn of routine matter, therefore, it is not likely to cause anxiety or concern in the minds of the public at large. In politics in the recent and these days alike, rhetoric cannot touch the emotions of the people. One such connotation in its perception as rationalisation of authoritarian inclinations, personalised politic, intolerance, dissent and vendetta against political rivals. In this charged atmosphere people listen with great interest to everything against those at the helm of affairs including rumours, false news and disinformation and transform them into reality.
14. Granted that press has got impact on shaping public opinion but that does not mean that press reports are always right in our set-up as elsewhere. Having element of tremendous influence on shaping public opinion what the media in our country holds out does not automatically guarantee integrity. Facility of pen is a great gift, in the realm of the press but if it is used irresponsibly it becomes bane. The press has not been able to tell the nation on this subject the yardtick on which it had based its judgment.
15. Given the situation, the people give more importance to routine matters than to serious issues.
172. Hence, we are compelled to live not with wisdom but with information that is churned out through media. To this end, the media, being an easily available source of 'knowingnessplays a central role in play of democracy. And the merchants of propaganda develop organisational mechanism at the behest of the vested interest to the target.
16. A capricious handling of things, whimsical interpretation of issues or wanton show of power can easily lead a nation towards cataclysm.
17. We witness every day from press reports that in blatant disregard of the basic ethics of responsible journalism, the news items are twisted, distorted, scandalised, sensationalised and more often than not given the news some slant with calculated stance of indefensible obduracy.
173. Almost the entire mainstream Pakistani media have been rendered to mere pawns in the game being played not for bigger but for petty stakes. We are not oblivious of such terms in our journalistic arena 'much-maligned gutter press', disinformation cellsand yellow journalism. We read quite often lamenting that press in this country does not take any notice of seismic events but the most sensitive issues, beyond the comprehension of most of our media men, are quite often unwillingly flashed at the cost of national interest.
18. To my mind, therefore, it is all the more essential that Armed Forces which are known for their 'disciplinedcountenance and are, therefore, 'held in high esteemshould be left alone and should not be sacrificed at the altars of political considerations. Lastly the public confidence in the Armed Forces of the country is not likely to be shaken merely because the trial is not opento the public eye.
174. In my considered view, therefore, none of the considerations that weighed with my learned brother Saiduzzaman Siddiqui, J. Renders the case one of 'public importance.'
19. On the contrary, my learned brother..Mukhtar Ahmad Junejo, J. Placing the provisions of Article 199(3) in juxtaposition with Article 184(3) has, inter alia, expressed the view that jurisdiction of the High Court has been ousted from passing an order of the nature given in Article 199(3) of the Constitution, therefore, "there is no scope to conceive that such an order can be passed by the Supreme Court of Pakistan which is enabled by Article 184(3) to pass an order of the nature mentioned in Article 199 of the Constitution".
20. While generally agreeing with the conclusion drawn by my learned brother Mukhtar Ahmad Junejo, J. On the ouster of jurisdiction of this Court in the case, I have not been able to persuade myself with the complete bar of jurisdiction of this Court under Article 184(3) of the Constitution even in cases conducted under the Amy Act. In the case of State v. Zia-ur-Rehman PLD 1973 SC 49 while considering the ouster clause (1) of Article 281 of the Interim Constitution of 1972 which provided in express terms that the "act done or purported to have been done" in exercise of the powers or "in the purported exercise of powers" Hamoodur Rahman, C J., speaking for the Full Bench made reference to the following observations made by Monir, C.J. In Zafar-ul-Ahsan v. The Republic of Pakistan (PLD 1960 SC 113):-- "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law.
175. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute." and reached the following conclusion:-- "In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide." (Underlining is mine).
21. This interpretation of ouster clauses in the Constitution finds expression in the two recent cases of this Court in: (i) Khalil-uz-Zaman v Supreme Appellate Court, Lahore and others. PLD 1994 SC 885 and (ii) Malik Hayat v. Supreme Appellate Court of Sindh-II at Karachi and others PLD 1995 SC 505.
176. In both the precedents, the bar of jurisdiction of this Court under Article 212-B of the Constitution came up for consideration. In Khalil-uz-Zaman's case supra Muhammad Munir Khan, J., while delivering judgment for the Bench of this Court observed:-- "The law does not provide any remedy by way of appeal/petition for leave. To appeal/review/revision against the judgment or order of the Supreme Appellate Court. If the impugned judgments are allowed to stand then the petitioner would be deprived of his life obviously in pursuance of the orders which suffer from lack of jurisdiction and authority, gross carelessness, illegality and were violative of Fundamental Rights guaranteed by the Constitution.
177. Fortunately for the petitioner, our Constitution gives protection to the citizens of Pakistan against illegal treatment in the matter of life, liberty and body and has also conferred original jurisdiction under Article 184(3) for providing complete justice to the aggrieved persons in the matters involving Fundamental Rights conferred by Chapter 1 of Part II of the Constitution."
178. In the case of Malik Hayat supra Sajjad Ali Shah, Hon'ble Chief Justice, while delivering the unanimous judgment of this Court made the following observations:- "We would like to make it very clear that the Supreme Appellate Court is the final forum as contemplated under the special law and this Court cannot sit in appeal on the judgment of the Supreme Appellate Court, nor can interfere with such proceedings in any manner. As a rule, no interference is to be made with judgment and proceedings of the Supreme Appellate Court but as an exception to the rule interference can be made only in extraordinary case involving question of jurisdictional defect when proceedings in that forum become coram non judice." (Underlining by me is for emphasis).
22. In my considered view, therefore, notwithstanding the bar of jurisdiction under section 133 of the Act, Article 8(3) or 199(3) of the Constitution, this Court would have the jurisdiction under Article 184(3) of the Constitution if a case satisfies the conditions laid down in Zia-ur-Rehman's case supra, namely, the acts done are coram non judice or without jurisdiction or mala fide.
23. It was, perhaps on this hypothesis that the learned counsel appearing on behalf of all the petitioners in this case emphasised that the proceedings taken in throe cases right from their abductionto the 'investigation', 'Constitution of FGCMand 'modein which 'pre-trial, acts of omission and commissionhave been done were tainted with 'mala fides.'
24. In this context, it may be noticed that even my learned brethren Saiduzzaman Siddiqui and Mukhtar Ahmad Junejo, H. Have held the view that the element of 'mala fideon the part of the respondents in these cases is completely lacking. I find myself in complete agreement with these findings of my learned brethren on the Bench. Even otherwise, the law is settled on the proof of 'mala fides.In monumental judgment of this Court in the case of Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan. Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 again Hamoodur Rahman, C.J. Speaking for the Full Bench defined mala fides as under:-- "Mala fides" literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are also mala fides."
179. In this context, it was further observed as under:-- , "It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken.
180. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by-some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession."
25. I, therefore, concur in the findings of my learned brethren that the element of mala fides in the arrest, detention by SIB and trial of the accused officers by FGCM has neither been made discernible nor has been substantiated by any evidence on the record.
26. Both the learned Judges have been on dissenting note on the element of public importance of the case. Nonetheless, their view on the competence of the SIB to investigate and trial by the FGCM by and large is in harmony. Again I also tend to concur in the findings of my learned brethren on the point of their competency to investigate the cases before us in the manner and the mode provided for under the Act. In support of this proposition I have been able to lay my hands on a recent judgment of this Court in the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, and 2 others 1994 SCMR 2142 authoried by my illustrious brother Fazal Karim, J. The jurisdiction to interfere at the investigation stage by a Special Inquiry Team headed by the respondent therein Additional Director-General, FIA was considered at length. In this regard, I can do no better than reproduce the following observations of the Full Bench at pages 2153 and 2154:-- "In every investigation There are.... By and large three different phases. First of all, the administrative phase; next the judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of stating his case before the final period: the execution Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side, and the other side are entitled to fairness just as the suspect is fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be Of course, it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins........................... "
27. A bare reading of the facts in the background of the case of Brig. Rtd. Imtiaz Ahmad supra would show that it would be fallacious to think that decisions of the executive including the Armed Forces to investigate serious charges against the accused officers are in the nature of acts of omission and commissionamenable to the judicial review of this Court under Article 184(3) of the Constitution when test of the law laid down in the cases Of Zia-urRehman, Khalil-uz-Zaman and Malik Hayat supra cited in paras. 20 and 21 ante is applied, namely, that acts done being coram non judice or without jurisdiction or mala fide in the instant case.
28. As a sequel to what has been observed, I am also of the considered view that in the case in hand no question of public importance relating to enforcement of any of the Fundamental Rights conferred by Articles 9, 10 and 14 of the Constitution is involved. Respectfully differing with my learned brother Saiduzzaman Siddiqui, J. And with slight difference of opinion highlighted by me, these petitions are dismissed.
181. (Sd.)
182. MUHAMMAD BASHIR KHAN JEHANGIRI, J.
183. ORDER OF THE COURT By majority of two to one, the petitions are dismissed as not maintainable.
184. (Sd.)
185. SAIDUZZAMAN SIDDIQUI, J.
186. (Sd.)
187. MUKHTAR AHMAD JUNEJO, J.
188. (Sd.)
189. MUHAMMAD BASHIR KHAN JEHANGIRI, J.
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