QAZI MUHAMMAD FAROOQ, J.---By means of this Constitutional Petition the following reliefs have been prayed for by the petitioner:-- (i)Pakistan Army (Amendment) Act, 1922 (Act XXVIII of 1992) be declared to be ultravires the Constitution to the extent of the date with effect from which it has provided a right of appeal to certain convicts.
(ii)The respondents be directed to amend the said Act and to provide a right of appeal with effect from the date mentioned in the judgment of the Shariat Appellate Bench of Supreme Court of Pakistan namely 1-1-1989.
(iii)The order of Chief of the Army Staff refusing to entertain the appeal of the petitioner be declared as illegal, without lawful authority and of no legal effect.
(iv)The Chief of the Army Staff be directed to entertain the appeal of the petitioner and to provide a forum of appeal.
(v)The Superintendent District Jail D.I. Khan be directed to take out the petitioner from the Condemned Cell, treat him as an under trial prisoner and refrain from ordering his execution till the right of appeal and the forum of appeal are provided to him and his appeal is decided in accordance with law.
2. The petitioner Farmanullah Hashmi was a Sepoy in the Army and was attached with 29 MP Peshawar Cantt: in the Year 1991. On 16-6-1991 one Subedar Muhammad Nawaz was murdered for which the petitioner was indicted and tried by the Field General Court Martial convened under section 84(b) of the Pakistan Army Act 1952. Having been found guilty by the Court he was sentenced to death as 'Tazir' on 5-12-1991. The sentence of death was confirmed by Chief of the Army Staff on 10-6-1992 and the mercy petition submitted by the petitioner was rejected by the competent authority on 23-8-1992 with the advice that another mercy petition be submitted before the President of Pakistan. In the meantime pursuant to the direction of the Shariat Appellate Bench of the Supreme Court that right of appeal be provided to the convicts by suitably amending section 133-A of the Pakistan Army Act, 1952, the Pakistan Army (Amendment) Act, 1992 was passed by Majlis-e-Shoora (Parliament) which received the assent of the President on 22-12-1992 and was notified on 24-12-1992. The petitioner filed an appeal before the Chief of the Army Staff on the strength of the said enactment alongwith an application for condonation of delay but he was informed by the Judge Advocate General, vide his letter dated 14-3-1992, that his appeal was not maintainable as he had no right of appeal having been convicted much before coming into force of Act No,XXVIII of 1992.
3. The background and circumstances in which the Pakistan Army Amendment Act 1992 (Act XXVIII of 1992), hereinafter referred to as the Act, was passed are that the Federal Shariat Court in exercise of its suo motu power under Article 203-D of the Constitution examined the laws governing the Armed Forces of Pakistan and in the process found certain provisions of the same to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet.
Resultantly, some amendments were directed to be made in the three Defence Service Laws. One of the proposed amendments was to the effect that Appellate Courts be set up to hear appeals against the convictions under the Hudood laws as well as convictions under the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961. An appeal was filed against the judgment of the Federal Shariat Court by Pakistan through the Secretary, Ministry of Defence before the Supreme Court of Pakistan which was decided by the Shariat Appellate Bench in the following terms:- "The provisions of section 133 of Pakistan Army Act, section 162 of Pakistan Air Force Act and section 196 of Pakistan Navy Ordinance must be held as repugnant to the Injunctions of Islam and, therefore, void. 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 Martial, 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 Navy Ordinance, 1961 in the terms indicated above."
The above judgment is reported as Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 Supreme Court 6) (Shariat Appellate Bench).
4. Mr. Saeed Baig, learned counsel for the petitioner, contended at the outset with vehemence that the provisions of Article 199(3) of the Constitution placing embargo on considering a writ petition filed by a member of the Armed Forces in respect of an action taken against him as a member of the Armed Forces were not attracted and the writ petition was maintainable as the petitioner had challenged the vires of the Act. Another contention raised by him with equal vehemence was that the Act being violative of Article 25 was ultra vires the Constitution. Elucidating the contention he submitted that under Article 25 of the Constitution all citizens are equal before law and are entitled to equal protection of law whereas there is no provision in the Act for its retrospective operation with the result that the convicts to whom a right of appeal had accrued on the target date namely 1-1-1989 have been left high and dry. Placing reliance on sub-clause (b) of clause (3) of Article 203-D of the Constitution and Muhammad Sharif v. Member (Revenue) Board of Revenue Punjab, Lahore and 2 others (PLD 1987 Lahore 58) and Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) he further argued that the right of appeal had automatically accrued to the petitioner on 1-1-1989 as the decision of the Supreme Court (Shariat Appellate Bench) had become effective on that date and section 133 of the Pakistan Army Act, 1952 pertaining to bar of appeals had ceased to have effect. It was lastly urged that the petitioner had a right of appeal under the common Islamic Law also because there was a vacuum between the date of his conviction and the date of coming into force of the Act and it was by now firmly settled that in such state of vacuum the common Islamic Law shall be deemed to be the law on the subject.
5. On the other hand, Mr. Shahzad Akbar, the learned Standing Counsel for the Federation to whom the case was assigned on behalf of the learned Attorney General, made the following submissions:-
(i) The petitioner was a person subject to the Pakistan Army Act, 1952, therefore, the writ petition was not maintainable in view of clause (3) of Article 199 of the Constitution and the observations made in Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 2286) that the bar of jurisdiction under Article 199(3) of the Constitution is attracted even if the plea is based on fundamental rights guaranteed by the Constitution.
(ii)An identical writ petition No,D-454 of 1995 titled Muhammad Pervez v. Federation of Pakistan and others failed on behalf of the condemned prisoner Ex. Captain Arshad Jamil was dismissed by the High Court of Sindh, Hyderabad Circuit on 26-9-1995 and the judgment was upheld by the Supreme Court of Pakistan in Civil Petition No,464 of 1995 which was dismissed on 6-10-1996.
(iii)The act was not ultravires the Constitution as it had provided a right of appeal to all the members of the Armed Forces who were convicted and sentenced on or after 22-12-1992 and prior to that the right of appeal was not available to any convict.
(iv)The petitioner was convicted and sentenced by the Field General Court Martial on 17-12-1991 and the sentence of death as ' Tazir' awarded to him was confirmed by Chief of the Army Staff on 10-6-1992, therefore, he was not entitled to avail the right of appeal envisaged by the Act with effect from 22-12-1992. It was settled law that a right of appeal cannot be claimed unless it is conferred by a statute.
6. Admittedly, a similar writ petition (Constitution Petition No, D-454/1995) filed by one Muhammad Parvez on behalf of Ex-Captain Arshad Jamil, who was sentenced to death by Field General Court Martial on 5-10-1992 and the sentence was confirmed by Chief of the Army Staff on 29-10-1992, was dismissed on 26-9-1995 by a Division Bench of the High Court of Sindh, Hyderabad Circuit, and Civil Petition No,464/1995 preferred against the judgment by the said Muhammad Parvez, brother of the convict, was dismissed by the Supreme Court of Pakistan on 6-10-1996. This writ petition can be conveniently dismissed on the strength of the authoritative judgment of the Supreme Court but we propose to dismiss it after adverting to the contentions raised by the learned counsel for the petitioner as they are pertinent to the following two questions referred to this Bench for consideration: (a)Whether the judgment of the Shariat Appellate Bench of the Supreme Court reported as "Pakistan through Ministry of Defence v. General Public" (PLD 1989 SC 6) has conferred a right of appeal with effect from 1-1-1989 i,e, the day on which the decision of the Court has to take effect.
(b)Whether Act No,XXVIII of 1992 is liable to be declared ultra vires the Constitution as it does not confer any right of appeal from 1-1-1989 in accordance with the judgment noted above.
7. As to maintainability of the writ petition it will be enough to say that having been filed by a member of the Army in respect of an action taken against him by the competent authority under the Army Act, 1952 it is not maintainable under clause (3) of Article 199 of the Constitution which is worded thus: "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 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."
Mere fact that the vires of the Act have been challenged in the petition is not sufficient to take it out of the pale of clause (3) of Article 199 because the challenge is based on the fundamental rights. It was observed in Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 2286) that grant of relief in relation to a person who is a member of the Armed Forces even though based on fundamental rights, which are included in clause (1) of Article 199, is barred under Article 199(3) of the Constitution as High Court has no jurisdiction in the matter.
8. The Act had come into force on 22-12-1992. It, inter alia, inserted a new section 133-B in the Pakistan Army Act, 1952 which provides that 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 Act 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. The petitioner has challenged the vires of section 133-B of the Act to the extent of the time frame mentioned therein on the ground that it is in conflict with Article 25 of the Constitution inasmuch as it has restricted the right of appeal to those persons only who were convicted and sentenced after the commencement of the Act and had ignored those who were convicted and sentenced after 1-1-1989 when section 133 of the Pakistan Army Act, 1952 had ceased to have effect in the light of the judgment of the Shariat Appellate Bench of the Supreme Court. In technical terms a classification with reference to time has been challenged. The challenge is too baseless to stand the test of the well-known rule on the subject of discrimination that like should be treated alike and not that unlike should be treated alike. The principle enshrined in Article 25 forbids discrimination between persons who are substantially in similar circumstances. The data in respect of the persons convicted after 1-1-1989 is not available but in so far as the petitioner is concerned he and those convicted and sentenced after the commencement of the Act cannot be said to be similarly circumstanced because the sentence of death awarded to him was confirmed by the competent authority on 10-6-1992 while those covered by the Act were barely convicted and sentenced. He certainly forms a class distinct from those who were given the right of appeal by the Act and as such classification with reference to time is based on intelligible differentia. In Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554) it was observed that differentiation between classes of persons on the basis of a valid and reasonable classification is permissible and is not open to attack on the ground of infringement of equality principle embodied in the Constitution and that the classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.
9. This brings us to the appeal-related contentions raised by the learned counsel for the petitioner.
The right of appeal is a substantive right and not a matter of procedure. The petitioner was convicted and sentenced by the Field General Court Martial on 5-12-1991. At that time the right of appeal was not available under the law and the Act cannot be applied retrospectively for want of an express provision in regard to retrospective operation. It is by now well settled that right of appeal is a statutory rights. There is thus no force in the contention that the right of appeal had automatically accrued to the petitioner on 1-1-1989 when section 133 of the Pakistan Army Act, 1952 had ceased to have effect by virtue of the judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan. It was held in the aforementioned unreported judgment of the Supreme Court titled Muhammad Parvez v. Federation of Pakistan and others that no one can claim to have a right of appeal unless it is expressly conferred by a statute and that such a right cannot be inferred by implication. As regards the contention that right of appeal has accrued to the petitioner under the common Islamic Law it would suffice to say that it cannot be raised at all because the petitioner had not filed an appeal during the interregnum and the appeal turned down by the competent authority was admittedly filed by him after the commencement of the Act.
10. For the reasons aforesaid, this writ petition is dismissed with no order as to costs.