TASSADUQ HUSSAIN JILANI, J.- Petitioner No. 1 alongwith others stand convicted by the Field General Court Martial for offences under section 59 of the Pakistan Army Act read with section 121-A PPC and sentenced to seven years R1. He has also been dismissed from service. He has filed appeal before the forum envisaged in section 133-B of the Pakistan Army Act. Through this Constitutional petition, he has prayed that the cancellation of petitioner's name from the membership of the Housing Scheme Part-1 pursuant to the afore-referred conviction should be set aside and the rights of the petitioner qua the house built on the plot allotted under the Housing Scheme be restored. It has further been prayed that the respondents be directed to supply summary of evidence and other documents mentioned in the petition. The vires of section 133-B of the Army Act have also been challenged.
2. In support of the petition, learned counsel for the petitioner submitted that although the petitioner has filed an appeal under section 133-B of the Army Act yet the forum provided under the said provision is not in accord with the judgments of the Shariat Appellant Bench reported in Pakistan through Secretary Ministry of Defence v. The General Public (PLD 1989 Supreme Court 6) and Federation of Pakistan and others v. Public at Large and other (PLD 1988 Supreme Court 202) and, therefore, under the Islamic Common Law, this Court should hear the appeal. He further contended that in view of the law laid down in Brig (Retd.) F.B. Ali and another v. The State (PLD 1975 Supreme Court 506) this Court has jurisdiction to hear the petition not withstanding Article 199(3) of the Constitution of The Islamic Republic of Pakistan. Relying in the afore-referred judgments, learned counsel submitted that even the trial was coram non judice.
3. In parawise comments submitted by the respondents it has been submitted that the petitioner having been convicted by the Field Court Martial this Court does not have jurisdiction in view of Article 199(3) of the Constitution; that clause 16 of the Housing Scheme Part-II stipulates that an officer dismissed on disciplinary ground^ looses membership; that section 133-B of the Pakistan Army Act was added in view of the judgment of the Federal Shariat Court and that the copy of the Court Martial proceedings had already been provided to the petitioner and he is not entitled to get copy of the further documents which have been classified as "restricted".
4. Ch. Muhammad Faruq, the learned Attorney General for Pakistan assisted by Mian Muhammad Tariq, Deputy Attorney General who appeared in Court pursuant to a call raised a preliminary objection that in view of the mandatory' provision of Article 199(3) of the Constitution this Court has no jurisdiction to hear this petition and this view is fortified by a judgment of the Hon'ble Supreme Court, in a petition filed by the wife of petitioner No. 1, reported in PLD 1996 Supreme Court 632); that the petitioner has filed a review petition in the afore-referred judgment which is pending decision; that the petitioners filed a petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 which is being treated as Human Rights Case No. 708 of 1997 and the Hon be Chief Justice of Supreme Court of Pakistan Vide Order dated 23.9.1997 had directed the said petition to be heard alongwith the afore-referred at the petition.
5. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.
6. Before dilating on any other issue raised it is necessary to take up the question of jurisdiction in the first instance. Article 199(3) of the Constitution reads as under:- "(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 services, 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".
Similar provision existed in the Interim Constitution of 1972 and the question came up for consideration before the Hon'ble Supreme Court in The State v. Ziaur Rehman (PLD 1973 Supreme Court 49) wherein it was held as under:- "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."
This order was reiterated by a majority judgment in Mrs. Shahida Zahir Abbasi and 4 others v.
President of Pakistan and others (PLD 1996 Supreme Court 632) wherein at page 652 it was held as under:- "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."
7. Thus the ratio laid down in the case cited in the foregoing Paras that Article 199(3) bars jurisdiction on of this Court except where the impugned action is mala fide or the authority passing the order had no jurisdiction. The question of malafide is a question of act which has to be specifically taken. In Federation of Pakistan v. Saeed Ahmad (PLD 1974 Supreme Court 151) wherein at page 170 it was held as under;- "Mala fide is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (1), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.
"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 authorized by the law under which the action is taken or action taken in fraud of the law are also mala fides. 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 characterized 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 authorized by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorized to take action bore any personal grudge against the person in .Respect of whose lands or properties action has been taken. Similarly, if the acquisition of land or the taking over of. The industries is authorized in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law."
The petitioner in the body of the petition has not alleged mala fides either against any member of the Field Court Martial which conducted the trial, the Court of appeal or against any of the respondents. In absence of this jurisdictional fact i.e. "mala fides" in fact or in law as defined by the Hon'ble Supreme Court in the afore-referred judgment. Clause (3) of Article 199 of the Constitution would be fully attracted. Preference to F.B. Ali's case (PLD 1975 Supreme Court 506) is not relevant as facts in the said case are distinguishable inasmuch as the persons tried were retired military officers. Hence the order passed by the Field Court Martial does not reflect any jurisdictional defect to merit interference.
8. So far as the vires of section 133-B of the Army Act is concerned, the background of addition of this provision would be necessary. Prior to the amendment, the relevant sections were the following:- "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 proceeding or decision of a Court Martial to any Court exercising any jurisdiction whatever."
Similar is the position in the Pakistan Air Force Act, 1953. Herein Section 162 lays down:- "162. Bar of Appeals. No Court shall question the correctness, legality or propriety of any proceeding or decision of any Court Martial, and no remedy shall lie in respect of any such proceeding or decision save as provided in this Act."
Again, section 140 of Pakistan Navy Ordinance, 1961, bars appeals to question decisions of the Naval Tribunal. This section reads as follows:- "140. Bar of Appeals. No Court shall question the correctness, legality or propriety of any proceedings order, finding Or sentence of any naval tribunal, and no appeal, review or other remedy shall lie in respect of any such proceeding, order finding or sentence save in accordance with the provisions of this Ordinance".
9. The Federal Shariat Court taking suo motu notice of various provisions of Army Act 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 while finding certain provisions as repugnant to Islam, had directed suitable amendments of these laws with a view to provide a right of appeal.
The appeal was filed by the Government of Pakistan through Secretary, Ministry of Defence and the Hon'ble Shariat Appellate Bench in PLD 1989 Supreme Court 6, while dismissing the appeal, at page 12, directed as under:- "The appellant is, accordingly, directed to suitably amend section 133- A of the Pakistan Army Act, 1952; section 162-A of the Pakistan Air Force Act, 1953; and section 138-A of the Pakistan Navy Ordinance, 1961 by providing a right of appeal against the orders passed by the Court Martials, except for petty offences as discussed above. The necessary amendments shall be carried out by 1st January, 1989 in section 133-A-of Pakistan Army Act, 1952; Section 162-A of Pakistan Air Force Act, 1953 and Section 138-A of Pakistan Naval Ordinance, 1961 in the terms indicated above."
It was pursuant to the afore-referred judgment that section 133-B was added in the Army Act which is to the following effect:- "Court of Appeals for other cases.-(1) Any person to whom a Court- martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1989, may within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer nor below the rank of Brigadier in the case of General Court Martial or field General Court Martial or District Court Martial of Summary Court Martial convened or confirmed or countersigned by an officer of the rank of Brigadier or- below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, herein after referred to as the Court of Appeals: Provided that where the sentence is awarded by the Court-Martial under an Islamic Law, the officer or officers so designated shall he Muslims: Provided further that every Court of Appeals may be attended by a Judge advocate who shall be an officer belonging to the Army, or, if no such officer is available, a person appointed by. The Chief of the Army Staff."
10. The addition of section 133-B in the Army Act was made pursuant to the direction of the Hon'ble Shariat Appellate Bench (PLD 1989 Supreme Court 6) and the argument that the newly added provision is not a sufficient compliance to the afore-referred judgment is not tenable because the direction was for "Providing a right of appeals and it was left to the Legislature to create the requisite forum fro exercise of the said right. The petitioner has exercised his right of appeal which admittedly is pending decision and this. Court in these proceedings would not like to comment on any other point which may affect the case of either side in the appeal.
11. For what has been discussed above, there is no merit in this petition which fails and is hereby dismissed with no order as to costs.