' RASHEED A. RAZVI, J.---Through this petition, the petitioner has called in question the sentence/conviction passed by the Summary Military Court No,XIX, Hyderabad on 25-8-1983 through which petitioner was sentenced to undergo R.I. For six months.
2. The facts as narrated in the petition are that at the relevant time the petitioner was working as Rent Inspector with the respondent No,4, namely, Hyderabad Municipal Corporation; that on 16-12- 1983 at about 11-30 a.m F.I.R. Bearing No,6 of 1983 under section 161, P.P.C. And section 5(2) of the Prevention of the Corruption Act, 1947 was registered with the Anti-Corruption Establishment City Hyderabad; that it was alleged by the complainant Sultan Khan that petitioner had demanded Rs,500 for preparation of record of Malkana Huqooq and that the matter was settled for Rs,300. It is further mentioned in the petition that on 21-8-1983 the petitioner was convicted for six months R.I., but it is not disclosed what happened between the period the F.I.R. Was lodged till conviction of the petitioner. The decision of the Summary Military Court No,XIX, Hyderabad has been challenged on the ground that the said Military Court had no jurisdiction; that it was violative of the fundamental rights of the petitioner; that it was also violative of the Pakistan Army Act, 1932 and the Rules framed thereunder; petitioner has prayed for the following relief:-- "(i) That the Record of Proceedings of the case in connection with the Crime No, 6 of 1983 registered with A.C.E. City Hyderabad may be called for perusal.
(ii) That after perusal of record and proceedings of the case the conviction and sentence of R.I. For six months on 25-8-1983 to the petitioner be declared as without lawful authority, without jurisdiction, mala fide and illegal being against the spirit and law laid down by the Constitution.
(iii) This Honourable Court may be pleased to direct the respondents to restore the service of the petitioner with all back benefits.
(iv) That any other order deemed fit and proper in the circumstances of the case may be passed.
(v) That the cost of the petition be awarded to the petitioner."
3. We have heard Mr. S. Jehangir Hussain Shah, Advocate for the petitioner, Mr. Mian Khan Malik, Additional Advocate-General and Mr. Shoukat Ali Jafferi, Advocate for respondent No,4. At the time of the processing this petition, office had raised objection as to the maintainability of this petition on the grounds of laches. According to the office objection, the conviction/sentence passed by a Summary Military Court on 25-8-1983 and the instant petition was filed on 26-5-1998, admittedly after a lapse of nearly 15 years. It was argued by Mr. S.J. Jehangir Hussain Shah that the question of laches is not attracted where the order is passed without jurisdiction or where the order is void. In support of his arguments he has placed reliance on the cases of Muhammad Shaft v. Mushtaque Ahmed and others (1996 SCMR 856); Muhammad Uris v. Government of Sindh and 2 others (1998 CLC 1359); Abdul Qayum Khan v. The State and others (PLD 1968 Pesh. 6); and Pakistan Post Office v.
Settlement Commissioner and others (1987 SCMR 1119).
4. Learned Additional Advocate-General has vehemently opposed this petition and submitted that the petitioner has already submitted to the authority of the Military Courts by filing mercy petition and now he cannot make a "U" turn and challenge the same. He has referred to Annexure-C filed with the plaint which is a letter issued on Form H by the Deputy Martial Law Administrator Hyderabad accepting the mercy petition filed by the petitioner and remitting the remaining sentence. Mr. Shoukat Ali Jafferi, learned counsel for respondent No,4 after adopting arguments of Mr. Mian Khan Malik, Additional Advocate-General has added that this petition is not maintainable as it is hit by the principle of laches. He has placed reliance on the case Muhammad Ishaq Khan v.
Vice-Chancellor Gomal University D.I. Khan and 3 others (1998 CLC 101), Ch, Ghulam Mujtaba v. The Chief Settlement Commissioner Lahore and others (1985 SCMR 57); and the case of Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others (PLD 1985 SC (A.J&K) 93).
5. It is an admitted position that the petitioner was convicted and sentenced by the Summary Military Court No,XIX, Hyderabad vide order, dated 25-8-1993 in Crime No,6 of 1983 of A.C.E.
Hyderabad. This petition was filed on 26-5-1998 after a lapse of nearly 14 years and 9 months without explaining any reason for such delay. Mr. S. Jehangir Hussain Shah has attempted to show that the petitioner was continuously making representations to different authorities for redress of his grievances. The last letter, is dated 2-7-1997. For the last time it was 6-8-1989 when a Service Review Board established by the Government of Pakistan at Islamabad rejected the review petition filed by the petitioner which order is filed as Annexure-N. There is no reply of any correspondence addressed by the petitioner after the year 1989. Much emphasis has been placed on the case of Muhammad Uris (supra) where a Division Bench of this Court comprising one of us (Rasheed A.
Razvi, J, and Sabihuddin Ahmed, J.), declared the convictions and sentences passed by different Summary Military Courts in Sindh to be without lawful authority, mala fide and without jurisdiction.
The circumstances of that case are quite distinguishable with the facts of the present petition. In first place, those petitions were filed during the years 1987 to 1993. An those petitions were admitted and notices were issued to the respondents. None of the respondents in that case attempted to bring on record any incriminating material against those petitioners; even no counter, affidavit was filed by the respondents namely Federal Government and Provincial Governments denying contentions of those petitions. In the instant case, it was contended by the learned Additional Advocate-General that it will be absolutely impossible for the Provincial Government and the Federal Government to search for the record and proceedings conducted 15 years ago. The instant petition is fixed at the stage of Katcha Peshi and the respondents are on pre admission notice. It will not be just and fair if the respondents are directed at this stage (after 15 years) to produce the record of Summary Military Court. We are of the considered view that the facts of the reported case Muhammad Uris (Supra) differ with the facts of the present petition and, therefore, the rule laid down in that case is not applicable.
6. In the case of Abdul Qayum Khan (supra), it was observed by a learned Division Bench of the Peshawar High Court that the question of laches will not come in the way of the petitioner as he was challenging the proceedings of a screening Committee in view of the decision taken by Supreme Court in Sardar Muhammad Zaman Khan v. M.B. Nishat and others (PLD 1962 SC 22).
Reliance was placed on the case Mubarik Ali Bhatti v. Fayaz Ali Khan (PLD 1963 Lah. 8).
6-A. In the case of Muhammad Shafi (supra) Honourable Supreme Court was dealing with an appeal filed against an order of learned Single Judge of this Court where it was held, inter alia, by a Full Bench of Supreme Court that the question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires and where an order is without jurisdiction and void it need not be formally set aside as held in the cases of Ali Muhammad v. Hussain Bakhsh (PLD 1976 SC 37); Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (PLD 1965 SC 68); and Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 SC 294). The question of statutory bar of limitation and laches were also considered earlier by another Full Bench of Honourable Supreme Court in the case Pakistan Post Office (supra), where it was held, inter alia, that bar of laches in equitable jurisdiction has rightly been equated with principle of estoppel and not the statutory bar of limitation. It was further held that "passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party." On the question of void order impugned in the writ jurisdiction. It was observed as follows:-- "We agree that the mere fact that the order is void would not necessarily displace the bar of laches in equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding it being otherwise void, it need not be set aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367. On the other hand, if it is a void order and is also unjust and improper besides being illegal, the High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that: Injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice."
7. Respondents have referred to authoritative pronouncements of superior Courts on the point of laches which are, as per their statement, against the maintainability of this petition on the ground of laches. In Nusrat Fatima (supra), it was inter alia, held by the Supreme Court of Azad Jammu and Kashmir that "This application will only be resorted to where in estimation of Court, it would be unjust to allow remedy, either because of party as by its conduct has done that which might fairly be regarded as amounting to a waiver of it where by his conduct and neglect he has adopted perhaps not waiving that remedy, yet has put the other party in a situation of disadvantage in which it would not be reasonable to place him if the remedies were to be asserted." In Ch. Ghulam Mujtaba (supra) a Honourbale Full Bench of Supreme Court declined to grant leave to appeal against the order of Lahore High Court where petitioner's Constitutional petition was dismissed on the ground of laches. In the last case cited by the respondents Muhammad Ishaq Khan (supra) a Division Bench of Peshawar High Court dismissed the Constitutional petition on the ground of laches.
8. This petition was filed on 26-5-1998 after the judgment passed by this Court in the case Muhammad Uris (supra). The first prayer is to the effect that the respondents be directed to produce the record of proceedings of the case of Crime No,6 of 1983 as well as record of Summary Military Court for the purpose of determining the propriety and legality of the conviction/sentence imposed by the Summary Military Court, Hyderabad. No rule or regulation was cited at the bar by the learned counsel for the petitioner to show that the respondents are required under law to maintain the record of such proceedings for a period which comprises of 15 years. As discussed in the case of Muhammad Uris (supra) the record of Summary Military Court is not available either with the Federal Government or with the Pakistan Army. Therefore, we are not inclined to entertain the first prayer of the petitioner. Secondly he has also prayed that the respondent No,4 be directed to restore his services which again comes within the bar contained in Article 212(2) of the Constitution, 1973. We have gone through the contents of petition and the entire Annexures filed with it. Petitioner appears to be very vigilant and desperate till the year 1989, when he was running from one Department to another Department for redress of his grievance but after dismissal of his review application by the Service Review Board, Islamabad, he did not approach this Court, despite the fact that by that time the Supreme Court of Pakistan has declared in the case of Federation v.
Malik Ghulam Mustufa Khar (PLD 1989 SC 26) that all the acts and order of the Military Authorities which are coram non judice, without jurisdiction and mala fide can be called in question in writ jurisdiction before the High Court. Petitioner cannot plead ignorance of law and no satisfactory explanation has been disclosed in the petition and its supporting affidavit and through the documents filed in support of the petition which may indicate that the petitioner has not acquiesced in the order of the Review Board passed in the year 1989. It appears that the petitioner may have been informed by either petitioners that they have succeeded in obtaining a favourable order from this Court whereafter he has rushed to this Court which disentitles him from the equitable and discretionary relief. If he would have been actually and genuinely aggrieved by the order of Summary Military Court or by the order of the Review Board, Government of Pakistan, he should have come much, much earlier.
9. As a result of above discussion we sustain the office objection and dismiss this petition on the ground of laches.