' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of the abovementioned two cases by a common judgment as the points of law arising in these cases are identical. However, it is necessary to state briefly. The facts of each case, before we attend to the legal questions raised therein:-- Civil Appeal No,114 of 1998.
' The respondent in this appeal was working as Assistant in the Office of Judge Advocate-General
(JAG) General Headquarters (GHQ), Rawalpindi. He was charged for fraudulently using the forged signatures of Chief of Staff to the President of Pakistan, in order to reopen a murder case for retrial in 1986. While this charge was being investigated against him, he was found involved in another case in which he allegedly photo copied the signatures of Vice Chief of the Army Staff in order to secure the posting of his brother. In respect of the first charge, he was tried before Special Judge (Central), Rawalpindi but was acquitted vide judgment dated 7-6-1989.
' For the second charge, he was tried by the Field General Court Martial (FGCM) under section 2(1)
(c) of the Pakistan Army Act and having been found guilty was convicted and sentenced to one year's R.I. With penalty of dismissal from service with effect from 14-7-1987. The sentence was, however, revised and enhanced to 5 years' R.I. With dismissal from service from 18-4-1987 which was confirmed by J.A.G. On 19-4-1987. While he was undergoing sentence of imprisonment, his wife made mercy petition to Ministry of Defence which was accepted by the Chief of the Army Staff on 17-6-1989 and his remaining sentence of imprisonment was remitted. After his release from the prison, the respondent reported for duty but the authorities did not allow him to join the duty. He, therefore, challenged the validity of his trial by the F.G.C.M. And confirmation of his enhanced sentence by J.A.G. In Writ Petition No,511 of 1989 which was accepted by a learned Single Judge of the Lahore High Court on 3-11-1990 and his trial and conviction by F.G.C.M. Was declared without lawful authority. However, it was left open to the authorities, if they so choose, to prosecute him before a competent Court. The appellants challenged the decision of the learned Single Judge before the I.-C.A. Bench of the High Court in I.-C.A. No,16 of 1990 which was dismissed as withdrawn on 8-10-1997 on the statement of the learned counsel for the appellants that the I.C.A. Was not maintainable in view of the bar contained in section 3 of the Law Reforms Ordinance, 1972 and that the appellants intended to pursue the remedy against the judgment of the learned Single Judge before this Court. Leave was granted in the above appeal by this Court as follows:-- "The petition is barred by 6 years and 285 days. Condonation of delay is sought on the ground that during this period the I.-C.A. Filed by the petitioners against the order of learned Single Judge remained pending in the High Court. The question of limitation will be considered at the time of hearing of appeal.
' Leave is granted in the above petition to consider:--
(1) Whether the respondent, a civilian employee of Judge Advocate-General's Office of the Pakistan Army, was rightly treated subject to Army Act 1952, on account of Notification No,3 of 1975, dated 3rd of January, 1975 which declared, the whole of the Army on active service? And
(2) Whether the respondent was competently tried and convicted by the Field General Court Martial?
' Appeal to be made ready on the present record with liberty to the parties to file any further document which they wish to file. Appeal to be heard in the last week of May, 1998."
C.P.L.A. 1071 of 1998 ' The respondent in this petition was appointed as Lower Division Clerk in the General Headquarters
(GHQ) on 4-7-1979. He was later promoted as Upper Division Clerk with effect from 24-6-1985. He was charge-sheeted for 3 charges of misconduct in discharge of his official duties. He was accordingly tried by a Field General Court Martial (FGCM) convened under section 84 (6) of the Pakistan Army Act (hereinafter to be referred as 'the Act') by order dated 11-3-1989. He was exonerated of the first charge but was found guilty of the remaining two charges. He was, accordingly, convicted and sentenced to 2 years R.I. And penalty of dismissal from service. The respondent challenged his conviction and sentence awarded by F.G.C.M. In Writ Petition No,174 of 1994 which was accepted by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, by Judgment dated 25-6-1998 against which the petitioners are seeking leave to appeal.
2. Two different learned single Benches of the Lahore High Court dealt with the above cases and reached the conclusions that the respondents in the above cases being the civilian employees, were not subject to Army Act and as such their trial and conviction by F.G.C.M. Was without jurisdiction.
3. In Civil Appeal No,114 of 1998 the learned Single Judge gave the following reasons for holding the trial of respondent as without lawful authority and of no legal effect;-- "13. In the instant case the stand taken by the respondents is that the petitioner at the relevant time was on active service by virtue of Notification 3/75, dated 3-1-1975, issued under section 7 of the Act and he was in the service of the J.A.G. Branch of the Pakistan Army and for that reason he was subject to the Act. There is no dispute that at the relevant time he was in the service of the Pakistan Army being an Assistant in the J.A.G. Branch but the satisfaction of this condition alone was not enough to subject him to the Act. In addition thereto, he should have been either on active service, or in camp, or on the march, or at any frontier post. It is an admitted position that at that time he was neither in camp, nor on the march nor at any frontier post. Now the only point for consideration is: whether he was on active service? For bringing or putting a person on active service by a notification to be issued under section 7 of the Act, it is a condition precedent that he must already be subject to this Act (Pakistan Army Act, 1952) and if he is not already subject to this Act, then he cannot be subjected to this Act merely by issuing a notification under section 7. The words on active service figuring in section 2(1)(c) refer to the active service provided for in section 7 or in section 8(1) of the Act, while section 7 (with which we are now concerned) in turn refers back to section 2(1)(c) by using the words any person or class of persons subject to this Act' and in fact neither of them brings a civilian employee, as the petitioner was subject to the Pakistan Army Act, 1952. Therefore notification 3/75, dated 3-1-1975 issued under section 7 (ibid) by itself did not subject the civilian employees, including the petitioner, subject to the Pakistan Army Act, 1952. It appears that the Legislature in order to meet emergent situation wanted to subject civilian employees under the Pakistan Army Act for the purpose of better discipline but due to defective mechanism employed by it, it could not achieve the object. Therefore, in my opinion, the petitioner at the relevant time was neither on active service nor subject to the Pakistan Army Act, 1952, and he could not be tried, convicted and sentenced by the Field General Court Martial nor he could be dismissed from service by it. The petitioner, as it appears from the material brought on the record, never submitted to its jurisdiction and went on protesting from start to finish.
14. In view of the above, the writ petition is accepted and the impugned order is declared against law, without lawful authority and with no legal effect."
3. In Civil Petition for Leave to Appeal No,1071 of 1998, the learned Single Judge, following the judgment in Writ Petition No,511 of 1989, accepted the writ petition of respondent and declared his trial by F.G.C.M. Without lawful authority, as follows:-- "6. I have heard the learned counsel for the parties and have also gone through the material which was already on record or produced by the parties during the course of hearing of the petition.
Section 2 of the Act enumerates the categories of persons who are subject to the Act. In clauses
(a) and (b) of the said provision, the officers junior commissioned officers, warrant officers of the Pakistan Army and the person enrolled under the Act are subject to the Act. Clause (c) thereof pressed into service by the respondents, reads as under:-- '(c) persons not otherwise subject to this Act, who on active service, in camp on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army'.
Clause (d) covers those persons who are not otherwise subject to the Act but are accused of seducing or attempting to seduce any person subject to the Act from his duty or allegiance to Government or having committed an offence under the Official Secrets Act, 1932 in relation to any force or works of defence etc. Of the Military, Naval or Air Force. Section 4 of the Act provides that every person covered by clause (c) of subsection (1) of section 2 of the Act shall, for the purposes of the Act be deemed to be under the command of the commanding officer of the corps, unit or detachment. Section 7 of the Act contains a non obstante clause whereby the Federal Government may, by notification, direct that any person or class of persons subject to the Act shall, with reference to any areas in which they may be serving or with reference to all or any of the provisions of the Act or of any other law for the time being in force, be deemed to be on active service within the meaning of the Act. Section 8 of the Act, inter alia contains definitions of the 'active service', 'civil offence', 'commanding officer', 'court-martial', 'offence', 'service' and 'warrant officer'. Provisions of sections 9 to 20 regulate the appointment, enrolment, attestation, dismissal, retirement and discharge of person who are subject to the Act. Section 55 provides for sentence by a Court Martial up to five years upon a person subject to the Act who is found guilty of any act, conduct, disorder or neglect to the prejudice of good order and of military discipline. Section 59 is an enabling provision whereby any person subject to the Act committing any civil offence is to be deemed to be guilty of an offence under the Act and also provides for quantum of punishment. Section 60 of the Act contains the list of punishments that can be awarded by Court Martial in respect of offences committed by persons subject to the Act. Under section 84 of the Act, the following authorities have the power to convene a Field General Court Martial:-
(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.'
7.Admittedly, the petitioner was not an officer, junior commissioned officer, warrant officer of the Pakistan Army or a person enrolled under the Act. He was holding a civil post in connection with the affairs of the Federation. He was, thus, a civil servant for the purpose of his service discipline. It is hardly possible to treat him to be a person on active service, in camp, on the march, or at any frontier post being a person employed by, or in the service of, or follower of, or accompanying any portion of the Pakistan Army. The clause (c) of section 2 has to be read in ejusdam generis with other provisions of the Act. He cannot be considered to be a camp follower. It is not the intention of the Act to bring in the net all the persons coming into contact with the Pakistan Army in any way so as to become subject to the Act. The question of a person on active service arises only if he is already subject to the Act and not otherwise. The said clause would cover those persons employed by or in the service or the followers of or accompanying any portion of the Pakistan Army who while on active service are in camp, on the march or at any frontier post. But they have to be specified by the Federal Government by a notification. Nothing was brought on record to show that the petitioner was considered to be a camp follower accompanying any portion of the Pakistan Army in any camp, on the march, or at any frontier post. No such notification of the Federal Government was shown to have been issued. The mere fact that the Federal Government had issued a notification dated 3-1-1975 under section 7 of the Act declaring all the persons subject to the Act as on active service would not make the petitioner subject to the Act.
8. I, therefore, hold that the petitioner was not subject to the Army Act in the facts and circumstances of the present case. Similar view was taken in judgement dated 22-6-1990 passed by this Court in E.P.No,511 of 1989 in the case of Khurshid Ahmad v. Government of Pakistan through Ministry of Defence, Rawalpindi and 2 others.
4. In Civil Appeal No,114 of 1988, while granting leave to appeal, the question of limitation was left open. The appeal before this Court is barred by 6 years and 285 days. The appellants have filed an application for condonation of delay in filing the appeal. The following grounds are urged in support of the application for condonation of delay:-- "2. That this delay in filing the above-noted leave petition is neither intentional, nor wilful; nor deliberate. It was due to a bona fide error in understanding and interpreting the provisions of Law Reforms Ordinance, 1972 regarding the pursuit of further remedy against the impugned judgment of the learned High Court passed by a learned Single Judge. The petitioners under the legal advice received decided to file an I.-C.A. In the High Court and with all promptness filed the I.-C.A. Within time through their counsel. The I.-C.A. Then came up for hearing before a learned Division Bench of the High Court on 25-11-1990 alongwith the application for suspending the operation of the impugned judgment passed by the learned Single Judge. The I.-C.A. After hearing was admitted to full hearing the same day and notice was issued to the respondent. After the admission Order the application (C.M. 1652 of 1990) was taken up in which the prayer was for suspension of operation of the impugned Order of the learned Single Judge. The application was also allowed and the operation of the impugned judgment was suspended and the notice was issued to the respondent in this application as well for 16-2-1990. At this stage Mr. Abad-ur-Rehman Lodhi, Advocate, put in appearance before the I.-C.A. Bench and accepted notice on behalf of respondent. The learned counsel appearing for respondent did not object to the competency and maintainability of the appeal. On 16-12-1990 neither the respondent himself; nor his counsel in spite ,of having notice appeared before the Court upon which the Honourable I.-C.A. Bench confirmed its previous Order passed on 25-11-1990 which order had in fact been passed in presence of the counsel for the respondent. The reason for absence of the learned counsel on 16-12-1990 perhaps was that he was also sure that the I.-C.A. Was competent and after its admission and issuance of stay order in his presence, the stay order was most likely to be confirmed.
3. That in these circumstances there was no reason for the petitioners to entertain a doubt about the competency of the appeal. Neither the Honourable Court nor the counsel for the respondent had any doubt about the competency of the appeal.
4. That the matter does not end here. The I.-C.A. Remained pending before the High Court for about seven years and came up for hearing before the Honourable Court on as many as 24 times. On none of these hearings the respondent took the objection that the appeal was not competent orally or through writing although the respondent also filed a reply to the I.-C.A. Raising all possible objections available to him under the law; but the objection of competency of appeal was never raised. It was only on 8-10-1997 that the counsel for the petitioners after noticing the bar of section 3 of the Law Reforms Ordinance, 1972, decided not to press the appeal with the further decision to pursue the remedy in this Honourable Court by way of a leave petition against the judgment of the learned Single Judge of the High Court. The prayer made_ in this behalf by the petitioner's counsel was accepted and the appeal was 'disposed of as withdrawn' .
5. That after getting the appeal (I.-C.A. 16 of 1990) disposed of on 8-10-1997 the petitioners immediately took steps for filing the above leave petition and after getting the certified true copy of the judgment of the learned Single Judge of the High Court,on 13-10-1997, the above leave petition before this Honourable Court is being filed today (14-10-1997) i.e, within a day without wasting a single day.
6. That from the above narration of facts it is clear that there did exist reasonable grounds for believing that the appeal (I.-C.A. 16 of 1990) was competent. Therefore, under the circumstances the time spent in I.-C.A. Should not be used a punishment for the petitioners who throughout this long period remained vigilant and have been fighting for the determination of the legal rights in a legal manner and in accordance with law. During all this period nothing came on record and there was no indication from any side suggesting doubt about the competency of the appeal before the High Court. So, under the circumstances the petitioners had no choice, but to pursue their appeal before the High Court which they pursued with full; vigilance and force. This was a position and a circumstance over which the petitioners had no control and the circumstances being beyond control of the petitioners entitles them to grant of concession and this Honourable Court under these circumstances be pleased to use its discretion in favour of the petitioners condoning the delay in filing the leave petition by extension of time for the larger interest of justice.
7. That besides the above in the case there are a number of substantial questions of law of general public importance and interest and this Honourable Court has always treated this as a good ground for condoning delay in such-like cases. On merits the petitioners have a good prima facie case in their favour. The discipline of the Army is to be maintained. The persons like the respondent cannot be kept in the Army. The integrity of the persons serving the Pakistan Army must be above- board. The Army kept and maintained for the defence of the country cannot afford to have persons like the respondent in its rank.
' The interest of Army discipline and its service requirements demand that the delay in filing the petition which was also beyond control of the petitioners as explained earlier in this application, be condoned for the larger interest of justice.
' It is, therefore, respectfully prayed that on account of the peculiar circumstances of this case and because of the substantial questions of law of general public importance and interest involved in the case, the delay in filing the above leave petition be condoned by extension of time, in the interest of justice."
5. The learned Deputy Attorney-General (D.A.-G.) further contended that section 133-B was added in the Act pursuant to the judgment of Shariat Appellate Bench of this Court in the case of Pakistan v. General Public (PLD 1989 SC 6), on 24-12-1992 through Act XXVII of 1992. Before insertion of section 133-B in the Act, contended learned D.A.G., there was no right of appeal available to a convict in such cases, and therefore, the position whether an I.-C.A. Was competent or not in view of the provision of section 3 of Law Reforms Ordinance, was not very clear. The filing of I.-C.A. Before the High Court against the order of learned Single Judge, argued learned was therefore, under a bona fide mistake that it was competent.
' The learned counsel for the respondent, on the other hand, argued that the provisions of section 3 of Law Reforms Ordinance are so clear that there was no possibility even for a layman to be misled in filing the I.-C.A. The learned counsel further contended that in any case, the appellants could not plead that they were misled or that under a bona fide mistake, they filed the I.-C.A. Before the High Court against the order of learned Single Judge as this point stood finally settled by the decision of this Court in the case of Sajjad Haider v. Field General Court Martial (1988 SCMR 1035) wherein the appellants were a party.
6. The contention of learned counsel for the respondent is not without force. In the case of Sajjad Haider (supra) the question for consideration before this Court was whether an Intra-Court Appeal against the order passed by a learned Judge in proceeding arising from the conviction of a person by the Field General Court Martial under the Act, was competent in view of the provisions of section 3 of the Law Reforms Ordinance. This Court while holding that I.-C.A. In such circumstances, was not maintainable made the following observations:-- "The bar to an Intra-Court Appeal against the decision of a learned Judge in Chamber is contained in section 3, subsection (2) proviso of the Law Reforms Ordinance, 1972; the relevant portion of which is reproduced hereunder:-- '3.-(1)...............................................................................................
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (I) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.'
' In the Pakistan Army Act under which the trial of the petitioner was held the following two provisions, one contained in section 126 and the other in section 131, exist, which are relevant to the discussion:-- '126. Revision of finding and sentence.-- -(1) Any finding or sentence of a Court-martial which requires confirmation may be once revised by order of the confirming officer, and, on such revision, the Court, if so directed by him, may take additional evidence.
(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent.
(3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, if a general court- martial, it still consists of five officers or, if a field general or district court-martial, of three officers.
131. Remedy against finding and sentence of Court-martial.--- (1) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a general, field general or district court-martial may submit a petition before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation to the Federal Government, or the Commander- in-Cheif or to any prescribed officer, provided that such prescribed officer is higher in rank than the one who confirmed such finding or sentence.
(2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary court-martial may submit a petition to the Federal Government or the Commander-in- Chief, or any officer empowered to act under section 128."
' There is under the law applicable a Revision provided for in the Pakistan Army Act. Further, there is a remedy for any one considering himself aggrieved by the finding or sentence to submit a petition, at the stage of Revision or even afterwards. Apparently in view of these provisions, the proviso to section 3(2) of the Law Reforms Ordinance gets attracted. The decision of the Lahore High Court in Muhammad Saleem Mirza's case, proceeds to interpret para. 7 of M.L.O.4, Clause (d) which provided "the proceedings of a Summary Military Court, shall, without delay, be forwarded to the Martial Law Administrator of the Zone concernedfor review" and recorded the following conclusion:-- "If a statute makes provision for appeal, revision or review, the aggrieved party may invoke the review jurisdiction of the appropriate Court, Tribunal or authority for the required relief. In other words, the aggrieved party may take the initiative to invoke the appellate/revisional/review jurisdiction of the appropriate Court, Tribunal or authority and will have the right of being heard, unless it is expressly or by necessary intendment taken away. We are, therefore, clearly of the view that the words 'appeal' or 'revision' or 'review' used in proviso to section 3(2) of the Law Reforms Ordinance is a statutory remedy available to the aggrieved party, which not only confers certain powers upon such Court, Tribunal etc. But also provides a remedy and in some cases a right to the aggrieved party. The words 'appeal', 'revision', 'review' have been used in this proviso in the same remedial sense and with the same intention and it is for that reason that in such a situation the right of Intra-Court Appeal has been taken away."
' Apply the standard adopted by the Lahore High Court in the above case of Muhammad Saleem Mirza v. The Presiding Officer, Summary Military Court No,2, Lahore and another PLD 1979 Lah. 293, the Intra-Court Appeal on the facts of the case would be barred because here a right of aggrieved person has been recognized and provided for at the stage of revision and it remains available notwithstanding the decision in Revision. The bar contained in proviso under section 3(2) of the Law Reforms Ordinance has been authoritatively interpreted by this Court in Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 in the following words:-- "The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the Constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the 'original order'. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute.
Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed or not.
' It is clear to us that an Intra-Court Appeal was not competent and was rightly held by the impugned judgment of the High Court to be so. As regards the judgment of the learned Judge in Chamber, dated 11th of April, 1987, the appeal is shown to be barred by 243 days. The explanation given by the petitioner for explaining this delay, does not hold good, in view of the authoritative pronouncements of this Court available long before such a course was adopted by the petitioner and recourse was taken to Intra-Court Appeal where none was competent. As the petitioner is unable to overcome this bar of limitation, we are not inclined to go into the merits of the contention raised by him; with regard to the judgment passed by the learned Judge in Chamber relating to facts and the law arising in the petition. Leave to appeal is refused on the ground that the petition is hopelessly barred by limitation."
It is, therefore, quite clear that the legal position regarding maintainability of the I.-C.A., in the circumstances stated above, stood more than settled long before the filing of the I.-C.A. By the appellants. It is rightly contended by the learned counsel for the respondent that the appellants being a party to the decision in Sajjad Haider's case (supra) decided, by this Court, on 29-3-1988, could not plead ignorance about that decision.
The appellants have also taken the ground that during the pendency of the I.-C.A. Before the High Court, the respondent raised no objection to the maintainability of I.-C.A. And, therefore, the appellants were all along under the bona fide impression that the I.-C.A. Was competently filed.
This ground too has no substance, as the respondent was under no obligation to point out the defect in the proceedings filed by the appellants. A similar contention was rejected by this Court in the case of Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102) as follows:-- "Mr. Bilal's next submission was that the respondent had misguided the petitioner, because the respondent had received notice of the petitioner's appeal before the expiry of the period of limitation for filing the appeal in the High Court and if the respondent had objected immediately to the maintainability of the appeal, the petitioner would have been able to apply to the District Court for the return of his appeal and for its representation to the High Court within the statutory period of limitation. But as the respondent had challenged the District Court's jurisdiction only after the expiry of the period of limitation, according to Mr. Bilal, the respondent had misguided the petitioner. This extraordinary submission is based on the assumption that defendants are under an obligation to give advice about the manner in which claims against them are to be prosecuted. Apart from the fact that this assumption is against reason, submission is self-defeating because there cannot be different standards for plaintiffs and defendants, and if the petitioner was not at fault for filing his own appeal in the wrong Court, by the same standard, the respondent cannot be blamed therefor not objecting immediately to what the petitioner did.
' In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well-known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. On this question in Ata Ullah v. Custodian, Evacuee Property (PLD 1961 SC 236). "Under section 5 there has to be a finding of sufficient cause. In pre- partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected." We re-affirm these observations and we may explain here that the burden is on the appellant to prove that this delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rejeshwar Bali and other (AIR 1937 PC 276) in applying section 5 (of the Limitation Act) the analogy of section 14 (which applies only to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings 'prosecuted in good faith', therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: 'good faith': nothing shall be deemed to be done in good faith which is not done with due care and attention.' Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence."
In these circumstances, the ground urged by the appellants for condoning the delay of 6 years and 285 days, in filing the appeal, cannot be accepted as 'sufficient cause' for not filing the appeal in time. The appeal is, accordingly, dismissed as time-barred. In view of the dismissal of appeal as time-barred, we are not inclined to examine the merits of the case.
7. In Civil Petition No,1071 of 1998, the learned Deputy Attorney-General contended that the finding of the learned Single Judge that the respondent was not subject to the provisions of the Act and, therefore, his trial by the F.G.C.M. Was without jurisdiction, is based on a misinterpretation of the provisions of section 2(1)(c) of the Act. The learned D.A.-G. Very vehemently contended that by virtue of a notification issued by the Federal Government under section 7 of the Act, the whole of the Army is deemed to be one active service and as such a person not subject to the Act, working with the persons on active service, was also subject to the provisions of the Act and, therefore, he could be validly tried by F.G.C.M.
8. The learned counsel for the respondent on the other hand, supported the judgment of High Court and argued that the respondent was neither subject to the provisions of the Act nor he was in active service so as to confer jurisdiction on the F.G.C.M. To try him for the alleged offences.
9. It is not disputed before us that the respondent was a civilian employee working in the G.H.Q. Of the Army. He was charged for the following delinquencies in discharge of his official duties:--
(i) improperly communicating the addresses of candidates selected for 22 O.T.S. Course to Lt.-Col. Saeed;
(ii) improper delivery of the joining institution of the 22 O.T.S. Course in respect of one Muhammad Altaf to Mushtaq Ali, and
(iii) improperly obtaining certificate from Mushtaq Ali Khan on behalf of Muhammad Altaf stating that Muhammad Altaf was not willing to join the said course and, therefore, matriculation and intermediate certificates of Muhammad Altaf be returned.
10. The respondent was tried under section 55, of the Act, on the basis of the aforesaid charges before the F.G.C.M. Section 55 (ibid), reads as follows:-- "55. Violation of good order and discipline. Any person subject to this Act who is guilty of any act, conduct, disorder or neglect to the prejudice of good order of military discipline shall, on conviction by Court martial, be punished with rigorous imprisonment for a term which may extend to five years, or with such less punishment as is in this Act mentioned."
' From reading of the above provision, it is quite clear that only a person who is subject to the Act, can be proceeded against under this provision. Therefore, the moot question for consideration the case is, whether the respondent was subject to the Act at the time of his prosecution before the F.G.C.M. Section 2 of the Act defines the persons who are subject to the Act. It reads as follows:-- "2. Persons subject to the Act.-- -(1) The following persons shall be subject to this Act, namely--
(a) officers, junior commissioned officers and warrant officers of the Pakistan Army;
(b) persons enrolled under the Indian Army Act, 1911 (VIII of 1911), before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before this date, and persons enrolled under this Act;
(bb) persons subject to the Pakistan Navy Ordinance, 1961 (XXXVI of 1961), or the Pakistan Air Force Act, 1953 (VI of 1953) when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct;
(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;
(d) persons not otherwise subject to this Act who are accused of--
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923;
(iii) an offence punishable under sections 123, 123-A, 124-A, 143, 144, 147, 148, 152, 153-A, 188, 193, 224, 225, 283, 302, 304, 307, 325, 326, 332, 342, 353, 364, 366, 376, 392, 395, 396, 397, 431, 435 or 436 of the Pakistan Penal Code (Act XLV of 1860) or the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or any rule made thereunder or the High Treason (Punishment) Act, 1973 (LXVIII of 1973), or the Prevention of Anti-National Activities Act, 1974 (VII of 1974), or an attempt or conspiracy to commit, or an abetment of, any of the said offences;
(cc) persons not otherwise subject to this Act who are accused of having done any act with intent to impair the efficiency or impede the working of, or to cause damage to,--
(i) any building, vehicle, machinery apparatus or other property used, or intended to be used, for the purposes of the State or any local authority;
(ii) any railway as defined in the Railways Act, 1890 (IX of 1890), tramway, road canal, bridge, culvert, causeway, port dockyard, lighthouse, aerodrome, or any telegraph, telegraph line or post, as defined in the Telegraph Act, 1885 (XIII of 1885), or any wireless installation;
(iii) any vessel or aircraft or rolling stock of a railway or tramway;
(iv) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewage works, mine or factory;
(v) any prohibited place or protected place that is punishable under any rules made under the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or an attempt or Conspiracy to do, or an abetment of any such Act;
(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December, 1971.
(2) Every person subject to this Act under clause (a) or clause (b) or clause (e) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.
(3) Every person subject to this Act under clause (bb) of subsection (1) shall remain so subject during the period of his secondment to the Pakistan Army."
11. Clauses (a), (b) and (bb) of subsection (1) of section 2 of the Act, defines those persons who are subject to the Act. Clauses (c), (d) , (dd) and (e) of subsection (1) of section 2 (ibid), set out the circumstances under which a person not otherwise subject to the Act, would be rendered subject to the Act. It is not argued before us that the respondent fell in any of the categories of persons mentioned in clauses (a), (b) and (bb) or (e) of subsection (1) of section 2 of the Act. The learned D.A.-G., however, contended that respondent was covered by the provisions of section 2(1)(c) of the Act. It is contended by the learned D.A.-G. That by virtue of the notification, dated 3-1-1975 issued under section 7 of the Pakistan Army Act, 1952 (XXIX of 1952), all persons subject to the Act with reference to any area, in or outside Pakistan, where they may be serving, be deemed to be in active service within the meaning of the Act. The learned D.A.G. Accordingly, contended that in view of the notification, dated 3-1-1975, the Chief Administrative Officer of G.H.Q. Was deemed to be in active service and as such the respondent, who was working with the Chief Administrative Officer in the G.H.Q. At the relevant time, would also be deemed to be subject to the Act, in view of the provisions of section 2(1)(c) of the Act and, therefore, his prosecution before F.G.C.M. Was competent under the law.
' The learned counsel for the respondent, on the other hand, contended that the respondent would not be subject to the Act, unless he was found to be in active service, in camp, on the march, or at any frontier post specified by the Federal Government, or was at the relevant time employed by or in the service of or was followers of or accompanied any portion of the Pakistan Army.
12. The learned counsel for the parties have disagreed on the interpretation of section (2)(1)(c) of the Act. According to learned counsel for the respondent, the words "on active service, in camp, on the march or at any frontier post' used in section 2(1)(c) ibid, qualify/refer to persons not otherwise subject to the Act. The learned D.A.-G. On the other hand, contends that these expressions refer to any portion of the Pakistan Army and not persons not otherwise subject to the Act. In support of his contention, the learned D.A.-G. Relied on two decisions of the Indian Supreme Court reported as O.K.A. Nair v. Union of India (AIR 1976 SC 1179) and Gopal Upadhyaya v. Union of India (AIR 1987 SC 413).
13. To interpret correctly the provisions of section 2(1)(c) of the Act, it is necessary to understand first, the true meaning of the expression "active service" and "subject to Act" used in section 2(1)(c) and elsewhere in the Act.
' We have already reproduced section 2 of the Act which defines the persons who are subject to the Act. The expression 'active service' is defined in section 8 subsection (1), as follows:-- "8. Definition.---
(1) 'active service', as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country; (2).
In view of the above definition of 'active service' it is necessary, in order to attract its application, that the person must be one subject to the Act and that he may also be shown to be attached or form part of force which is engaged in operation against an enemy or is engaged in military operation or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached or forms part of a force which is in military occupation of a foreign country.
' In terms of the above definition of 'active service' a person merely being subject to the Act could not be deemed to be in active service. He is to be considered on active service only during the period he forms part of a force which is either engaged in operation against an enemy or is engaged in military operation or is on the line of march to a country or place wholly or partly occupied by an enemy or is attached to or forms part of a force which is in military occupation of a foreign country. It is nobody's case that the officers under whom the respondent was employed in G.H.Q. At the relevant time fell under any of the categories mentioned in section 8(1) of the Act, We are, therefore, of the view that the respondent could not be treated as subject to the Act, in terms of the provisions of section 8 of the Act. The learned D.A.-G., however, contended that the respondent would be deemed to be subject to the Act, on account of the notification issued by the Federal Government under section 7 of the Act. While examining the provisions of section 8(1) of the Act, we have noticed that a person subject to the Act is considered on active service only during the period he is engaged in one or the other military operations mentioned in that section. Section 7 (ibid), however, by its own force created another category of "active service" in respect of persons who are subject to the Act. This category of active service is quite distinct and different from those mentioned in section 8(1) of the Act. Section 7 of the Act reads as follows:-- "7. Power to declare persons to be on active service. ---Notwithstanding anything contained in clause (1) of section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act."
In terms of above provisions, the Federal Government may notification direct that any person or class of persons subject to the Act, shall with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of the Act notwithstanding anything contained in section 8(1) of the Act. It is, therefore, quite clear that for the purposes of section 7 (ibid), a person who is subject to the Act may not be engaged in any of the military operations stated in section 8(1) of the Act for being treated on "active service". It is enough if the Federal Government by notification directs that such person or class of persons, will be deemed to be on "active service" with reference to the area in which they are serving or with reference to any of the provisions of the Act. It is not disputed that the Federal Government issued notification, dated 3-1-1975 under section 7 of the Act, which reads as follows:-- "In exercise of the powers conferred by section 7 of the Pakistan Army Act, 1952 (XXIX of 1952) and in supersession of this Ministry's Notification No,4852/325/PSIA/4484/D-2(A)/71, 23rd November, 1971, the Federal is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act."
' The above notification is still holding the field and has not yet been withdrawn. In terms of the above notification all persons who are subject to the Act wherever they may be serving, with reference to all the provisions of the Act, are deemed to be on "active service" within the meaning of the Act. The clear effect of this notification is that all the persons mentioned in clauses (a), (b) and (bb) of subsection (1) to section 2 (ibid), are deemed to be on "active service" from the date of the notification. The respondent who was serving at the relevant time with Chief Administrative Officer in G.H.Q. Was, therefore, a person serving with a person, who was on "active service" within the meaning of section 7 of the Act.
14. We now turn to section 2(1)(c) of the Act to determine whether in the circumstances, it was necessary for the respondent who was otherwise not subject to the Act, to be on "active service" in camp, on the march or on a frontier post, specified by the Federal Government by notification in this behalf, in order to make him a person subject to the Act. On a careful examination of the language of clause (c) of subsection (1) of section 2 (ibid), we are of the view that the words "active service, in camp, on march or on a frontier post specified by the Federal Government do not refer to a person not otherwise subject to this Act but refer to any portion of Pakistan Army used in the latter part of that subsection. If we read section 2(1)(c) of the Act as suggested by the learned counsel for the respondent and as interpreted by the learned Judges of the High Court then in order to make a person not otherwise subject to the Act, person subject to the Act, he should be on active service, in camp, on march or on any frontier post specified by the Federal Government by notification in this behalf and employed by or in the service of or is a follower of or accompanying any portion of Pakistan Army. We have already reproduced the definition of 'active service' given in section 8(1) of the Act. The concept of "active service" both under section 8 (1) and section 7 of the Act, is applicable only to persons subject to the Act, meaning thereby persons constituting the regular force of the Army. No doubt, civilian employees of Army and others not subject to Act, are rendered subject to the Act in certain circumstances but there is no concept in the Act to treat such persons on active service. On a careful consideration of provisions of section 2(1)(c) of the Act, we are of the considered view that the words "on active service" in camp, on the march or at any frontier post" in clause (c) to subsection (1) of section 2 (ibid), refer to any portion of the Pakistan Army. In our view, section 2(1)(c) is to be read as "a person not otherwise subject to this Act, are employed by, or are in the service of or are followers of or accompanying any portion of the Pakistan Army, on active service, in camp, on march or on a frontier post specified by the Federal Government by notification in this behalf". It is only by reading of the provision in the manner indicated by us that the provision will give meaning which will harmonise with the object of the Act otherwise it would lead to absurdity. The expression "active service" in camp, on the march or at any frontier post specified by the Federal Government cannot possibly refer to a person other than those which are mentioned in clauses (a), (b) and (bb) to subsection (1) of section 2 of the Act as there is no concept in the Act that persons who are not subject to the provisions of the Act can also be on active service or in camp or on march or at any frontier post independently. These conditions can only be satisfied if a person not otherwise subject to the Act is accompanying a portion of Pakistan Army or a person who is on active service or in camp or on march or on frontier post specified by the Federal Government. In the case of O.K.A. Nair v. Union of India (supra) the appellants, who were office-bearers of civil employees' union in various centres of the defence establishment of Sikandarabad and Hyderabad filed writ petition in the High Court to impugn the authority of the Commandant in declaring the union represented by the appellants, as unlawful association. The writ petition failed. On appeal it was argued before the Indian Supreme Court that non-combatant civil employees attached to the defence could not validly be called members of the armed forces within the meaning of Article 33 of the Indian Constitution and, therefore, they were not subject to Army Act as they did not fall in any of the categories enumerated in sub- clauses (a) to (I) of section 2 of the Indian Army Act, 1950. The contention was disposed of as follows:-- "12. The members of the. Unions represented by the appellants obviously fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non-combatant and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. The answer the description of the 'members of the Armed Forces within the contemplation of Article 33. Consequently by virtue of section 21 of the Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c)."
(The underlining is ours).
' In Gopal Upadhyaya v. Union of India (supra), once again a similar question was brought before the Supreme Court of India which was dealt with, as follows:-- "2. The submission of Sri Anil Kumar Gupta, learned counsel for the petitioner is that the members of the Union who are civilian employees of the Army Medical Corps are not subject to the Army Act and the rules made thereunder and Article 33 of the Constitution has no application to them. It is not disputed that if the members of the Union are subject to the Army Act and the rules made thereunder, the Union cannot be validly registered. Sri Gupta submits that unless the members of the Union are brought within the compass of section 2(1)(i), Army Act, it is not possible to hold them subject to the Army Act. Section 2 (1)(i) refers to 'Persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army. The question, therefore, is whether these 'Camp-followers' fall within section 2(1)(i) and are subject to the Army Act and the rules made thereunder. Sri Gupta argues that they are not, unless they are 'on active service, in camp. On the march or any frontier post specified by Central Government in this behalf On the other hand the learned Additional Solicitor-General argues that in order to fall within section 2(1)(i), it is not necessary that the Camp-followers should themselves be 'on active service, in camp, on the march or at any frontier post' but that it is enough if they can be required to follow or accompany armed personnel who are 'on active service, in came, on the march or at any frontier post.; It is unnecessary for us to consider the merits of the submissions since the question is no longer res integra. It is concluded by the decision of a (near) Constitution Bench consisting of A.N. Ray, C.J., Beg, S. Sarkaria Shinghal, JJ. In Ous Kutilingal Achudan Nair v. Union of India, (1976) 2 SCR 769; (AIR 1976 SC 1179). The question in that case pertained to the 'formation of Unions of 'non-combatants unenrolled' consisting of cooks, Chokidars, Larkeras barbers, carpenters, mechanics, boot-makers, tailors, etc. Dealing with the contention that they were not subject to Army Act and, therefore, their freedom of association guaranteed by Article 19(1)(c) of the Constitution could (not) be curtailed, the Court said: 'Article 33 of the Constitution provides an exception to the preceding Articles in Part III including Article 1(1)(c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part HI shall, in their application, to the members of the Armed Forces or Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
' In enacting the Army Act, 1950, in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Article 33 of the Constitution. Section 2 (1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include 'persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post, specified by the Central Government by notification in this behalf, are empowered by, or are in the service, or are followers of, or, or accompany any portion of the regular army.'
' The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march, Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the 'members of the Armed Forces' within the contemplation of Article 33. Consequently, by virtue of section 21, Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c)."
3. The decision appears to be conclusive."
(The underlining is by us).
' Although the question as raised before us in the above petition, was not directly answered by the Indian Supreme Court, but the ratio of the case lends support to the interpretation of section 2(1)(c) of the Act, as adopted by us.
15. We are, therefore, of the view that the respondent at the relevant time being attached to a portion of Pakistan Army which was on 'active service' by virtue of the notification issued by the Federal Government on 3-1-1975 under section 7 of the Act, will be deemed to be a person subject to the Act and as such he was amenable to the jurisdiction of F.G.C.M. In view of the above conclusion, we convert Civil Petition No,1071 of 1998 into appeal and allow the same. The order passed by the learned Judge in Chambers is set aside and it is held that the trial and conviction of respondent by the F.G.C.M. Was in accordance with the law.
' As a result of the preceding discussion, Civil Appeal No,114 of 1998 is dismissed as time-barred and Civil Petition No,1071 of 1998 is converted into appeal and is allowed as stated above. However, in the circumstances of the case, there will be no order as to costs.