' AJMAL MIAN, C.J.---This is a petition for leave to appeal against the order dated 19-6-1996 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,D-744 of 1996 filed by the petitioner to challenge her husband Sepoy Masood Ali Khan's trial and conviction for murder (Qatl- i-Amd) by General Field Court Martial constituted under the Pakistan Army Act, 1952 (hereinafter referred to as the Act), declining the same in limine on the ground that in view of clauses (3) and
(5) of Article 199 of the Constitution the jurisdiction of the High Court was barred. The petitioner has, therefore, filed the above petition for leave to appeal.
2. The brief facts are that at the relevant time the petitioner's husband Masood Ali Khan (hereinafter referred to as the convict) was a Sepoy in the Pakistan Army. On 23-10-1990, he obtained leave for six days. On the same day at 15-30 hours F.I.R. No,448, dated 23-10-1990 was lodged by Mst. Jannat Bibi at Police Station Jamshaid Quarters, Karachi East, alleging therein that convict had come to her house armed with a rifle on the above date at 13-30 hours and fired a shot which hit her husband lrtiza Khan. He also fired at her son Tahir Zaman. Both the injured were removed for the hospital but they died on the way to hospital. The convict was arrested on 16-11- 1992 as per order of the High Court, but as submitted by Mr. Samdani. Learned counsel for the petitioner, on 12-11-1992. Be that as it may, the convict was charged before Seventh Additional Sessions Judge, Karachi East, who, by his order dated 23-12-1992 declared the convict as absconder. However, he was subsequently arrested and handed over to the Army Authorities, where he was tried by the General Field Court Martial constituted under the Act. He was convicted for the above double murder and was sentenced to death on 8-6-1994. He filed an appeal against the above conviction and sentence under the Act which was dismissed. Thereafter, the convict sent a Mercy Petition to the Chief of Army Staff, Pakistan Army but the same was rejected.
Thereupon, the wife of the convict filed the above Constitution Petition, which was dismissed for the above reason.
3. In support of the above petition Mr. K.M.A. Samdani, learned counsel appearing for the petitioner has vehemently contended, as under.
(i) That since the convict was not on active service at the relevant time when the alleged offences were committed, he could not have been tried by the General Field Court Martial in view of subsection (2) of section 59 of the Act. To reinforce the above submission he has referred to sections 7 and 8 of the Act and the notification dated 3-1-1975.
(ii) That since the General Field Court Martial had no jurisdiction, the trial and the resultant conviction are coram non judice, without jurisdiction and, therefore, liable to be set aside under Article 199 of the Constitution. In support he has relied upon the cases of Major Karam Elahi v. The State and another (1977 SCMR 499), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632) and Sabur Rehman and another v. Government of Sindh and 3 others (PLD 1996 SC 801).
4. On the other hand, Mr. Yawar Ali, learned Deputy Attorney-General has urged, as follows:
(i) That the convict having appeared before the General Field Court Martial and having exhausted the remedy available under the Act. Could not have filed the above Constitution Petition through his wife after the expiry of about 3/1-2 years from the dated of his arrest.
(ii) That since the convict was admittedly a serving Sepoy in the Army he was on active service on the relevant date notwithstanding that he had obtained leave for six days. In support of his above second submission he referred to the cases of (i) Ajit Singh v. State of Punjab (AIR 1970 Punjab and Haryana 351), (ii) Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 286), (iii) Khan Yunus Khan and 2 others v. The State (1996 M LD 414), (iv) Brig. (Recd) F.B. Ali and another v. The State (PLD 1975 SC 505) and (v) Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others (PLD 1996 Supreme Court 632) (supra).
5. We may take up the first submission of Mr. Yawar Ali, learned Deputy Attorney-General, namely, that the convict having appeared before the General Field Court Martial and having exhausted the remedy available under the Act, could not have filed the above Constitution Petition through his wife after the expiry of about 3/1-2 years from the date of his arrest. In this behalf, it may be observed that a Constitutional remedy is a discretionary remedy and a High Court may decline to invoke the same if the facts of the case so warrant. In the present case the convict was first challaned before the Additional Sessions Judge but he was declared absconder on or about 23-12- 1992. After that he was captured and handed over to the Army where he was proceeded with under the Act. The convict did not challenge the commencement of the trial by the General Field Court Martial when he was produced before it. After he was convicted and sentenced to death, he filed an appeal as provided under the Act. Then he filed a Mercy Petition before the Chief of Army Staff.
After having lost the battle under the Act, he belatedly approached the High Court through the above Constitution Petition filed by his wife. The above fact itself was sufficient to decline to press into service Constitutional jurisdiction in respect of the convict who was found guilty of commission of two murders by a forum provided under the law, to which as an Army personnel he is otherwise subject to.
6. As regards Mr. K.M.A. Samdani's submission that since the convict was not on active service at the relevant time, he could not have been tried by the General Field Court Martial under the Act, it may be observed that in support thereof he has first referred to subsection (2) of section 59 of the Act, which provides that a person subject to this Act, who commits an offence of murder against a person not subject to this Act, or the Pakistan Air Force Act, 1953, or to the Pakistan Navy Ordinance, 1961, or of culpable homicide not amounting to murder against such a person or of Zina or Zina-bil- Jabr in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under this Act, unless he commits any of the said offences,
(a) while on active service, or
(b) at any place outside Pakistan, or
(c) at a frontier post specified by the Federal Government by notification in this behalf.
' It may be pertinent to reproduce aforesaid notification dated 3-1-1975 issued by the Federal Government under section 7 of the Act which reads as follows:-- "The Federal Government 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."
We may also refer to section 7 of the Act which lays down that 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. It will not be out of context to mention that subsection (1) of section 8 of the Act defines "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. It may be pointed out that since above section 7 contained a nonobstante clause it shall prevail over above section 8, and thus, the Federal Government, through a notification, can extend the scope of the meaning of the term 'active service' as defined in subsection (1) of section 8 of the Act. The same has been done so through the above quoted notification dated 3-1-1975 by notifying that the persons subject to the 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.
7. To counter the above submission of Mr. K.M.A. Samdani, Mr. Yawar Ali, learned Deputy Attorney- General has referred to the case of Ajit Singh v. State of Punjab (AIR 1970 Punjab and Haryana 351), in which inter alia the term on "active service" has been construed with reference to Indian Notification No, S.R.O. 8-E, dated 5-12-1962 issued by the Central Government under section 9 of the Air Force Act, 1950 which extended the scope of the term on 'active service'. In this regard a Full Bench of the East Punjab and Haryana High Court observed as under:-- "19. The first such point was raised on behalf of the State with the argument that on the day of the occurrence the appellant being on leave from his Unit, he could not be said to be on 'active service', within the meaning of Notification No,S.R.O. 8-E, dated the 5th of December, 1962 (supra) issued by the Central Government under section 9 of the Air Force Act, 1950 (hereafter to be referred to as the Act). It is urged that the words 'whether they may be serving' forming part of the notification would cover only such persons as at the relevant point of time are actually engaged in performing the duties of their respective offices. This argument, which gives a restricted meaning to the word 'serving', is unacceptable to us. In our opinion, the word must be construed in the wider sense in which a person employed by another is said to be serving him merely by reason of the relationship created by the employment. The word is not defined in the Act. Webster's Third New International Dictionary (1961 Edition) gives, inter alia, the following meaning of the word 'serve':-- '' to be a servant become: employed in domestic service, at manual labour, or upon another's business: * * * to do service * * * to do military or naval service: be a soldier or sailor * * * to hold an office discharge a duty or function: act in a capacity * **'
' According to Corpus Juris Secundum (1952 Edition), Vol LXXIX, the general meaning of the word 'serve' is to perform service, and--- 'The word 'service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with a simple meaning, leaving no room for construction, but rather it is a broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context.
Thus, the Courts have found it impracticable to attempt a definition by which to test every case that may arise.'
' 'The word 'service' is also defined as meaning the being employed to serve another, the position of a servant the state of being a servant; the occupation, condition, or status of a servant; the work of a servant; the work of a slave, hired man, or employee; the attendance of an inferior, hired helper, slave, etc.' There is, thus, no doubt that in one sense the word ' serving' used in the notification would mean holding employment as distinguished from actually performing the duties of service and it is in that sense, I think, that the word has been used. It is not disputed that if the appellant had actually been with his Unit at the time of the occurrence but had been off duty otherwise than while on leave, he would, though not discharging the functions of his office, fall within the ambit of the phrase 'wherever they may be serving'. If that be so, the restricted meaning sought to be given on behalf of the State to the phrase just mentioned cannot be accepted as that in which the Legislature used the phrase.
21, In view of what I have already said, I would hold that the appellant was on active service within the meaning of the said notification on the date of the commission of the offences alleged against him, In spite of the fact that he was on leave from the Air Force."
8. Reference may also be made to the leave refusal order in the case of Col. (Retd) Muhammad Akram v. Federation of Pakistan through Secretary, Ministry of Defence and others (1998 SCM R 2073), wherein the following observations were made:- "Even on merits, we find that under subsection (1) of section 7 of the Act, notwithstanding the definition of the term ' active service, given in subsection (1) of section 8, the Federal Government has been empowered by a notification to 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 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. Admittedly, the notification under above subsection (1) of section 7 of the Act was issued on 3-1-1975 reproduced in the impugned judgment providing that the persons subject to the 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 Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of the Act."
9. The perusal of the above-quoted extracts from the above judgments indicates that an Army personnel can be treated on active service if he falls within the ambit of a notification of the nature involved in the present case issued under the relevant statute even though he may not be in actual active service. We are inclined to hold that an Army personnel may be treated on active service on the basis of the above notification dated 3-1-1975, even though he may not be in active service in terms of subsection (1) of section 8 of the Act. Furthermore, simpliciter the fact that an Army personnel is on leave would not take him out from the ambit of "active service" as defined by the above notification dated 3-1-1975. However, in our view, it is not necessary in the present case to examine whether the conflict was covered by the above notification, as the above Constitution Petition was liable to be dismissed on the first ground urged by Mr. Yawar Ali, learned Deputy Attorney-General and noticed hereinabove in para. 4(i).
10. We may now refer to Mr. Samdani's above second submission that the trial by the General Field Court Martial and the resultant conviction of the convict pursuant thereof are coram non judice and without jurisdiction. It may be observed that he has relied upon the case of Major Karam Elahi v. The State and another (1997 SCMR 499) (supra), in which a petition for leave to appeal against an order of cancellation of bail by the Lahore High Court (which was granted by an Additional Sessions Judge) was declined. During the arguments in the above petition for leave to appeal, it was also contended that since the petitioner in that case was a major, he could not have been taken into custody by the police. This Court while repelling the above contention, made the following observations:-- "Section 59(2), of the Army Act lays down that a person subject to this Act who commits an offence or murder against a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under the Act unless he commits the said offence while on active service. The counsel for the petitioner could not satisfy us that the petitioner was on active service while the alleged offence was committed."
' The above observations seemingly support Mr. Samdani's contention. However, it may be pointed out that the basic question before this Court was, as to whether the High Court was justified in cancelling the bail which was granted by the Additional Sessions Judge. The import and effect of the above notification, dated 3-1-1975 were not considered.
11. Mr. Samdani has also relied upon the following observations from the minority opinion of Saiduzzaman Siddiqui, J. In the case of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632):-- "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."
Whereas Mr. Yawar Ali, learned Deputy Attorney-General has relied upon the following portion of the above minority view:-- "From the above discussion, it appears that for arresting a person accused of an offence under the Act, a written order of arrest is not necessary though it is preferable. The Act also does not provide that a person arrested for an offence under the Act must be produced before a Magistrate for remand within 24 hours of his arrest as, required by Article 10(2), of the Constitution. The custody of a person accused of an offence under the Act, after his arrest, is regulated in accordance with the provisions of sections 74 and 75 of the Act which do not provide for production of the accused before a Magistrate for remand within 24 hours of his arrest. Therefore, to this extent the provisions of the Act do not conform to Article 19(2), of the Constitution. However, as pointed out by me in the preceding discussion, the provisions of the Act are protected under Article 8(3)(a), of the Constitution from being challenged on the ground of inconsistency with the Fundamental Rights contained in Chapter 1 Part H of the Constitution, therefore, noncompliance of the provisions of Article 10(2), of the Constitution, could not invalidate the arrest and detention of accused officers under the Act. I am, therefore, of the view that the non-production of the accused officers within 24 hours of their arrest before a Magistrate in accordance with the provisions of Article 10(2) of the Constitution for obtaining their remand was of no consequence. Similarly, the absence of a written order of arrest of the accused in these cases could not invalidate their arrests as according to the contention of respondents, the accused officers were arrested under an oral order of C.O.A.S."
' The above observation from the minority view seems to be to the effect that the bar of jurisdiction contained in Article 199(3) is not absolute and the above bar will not be attracted to at least in three categories of cases, namely, where impugned action is mala fide, or without jurisdiction, or coram non judice. But once it is shown that the person involved is covered by paragraph (a) of clause (3) of Article 8 of the Constitution no action can be founded by such person on the basis of any of the Fundamental Rights.
12. We may also refer to clause (3), of Article 199 of the Constitution. Clause (3) lays down that an order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
' Mr. Yawar Ali, learned Deputy Attorney-General has also relied upon the following observation from the leave refusal order of this Court in the case of Muhammad Mushtaq v. Federation of Pakistan 1994 SCM R 2286 on the interpretation of above clause (3) of Article 199:-- "The High Court was approached under Article 199 for grant of a relief under sub-Article (1) thereof.
The relief regarding Fundamental Rights is included in sub-Article (1); which is clearly barred under Article 199(3) with reference to sub-Article (1) thereof. The High Court had no jurisdiction in the matter, Hence the impugned order cannot be assailed on the ground that the High Court failed to exercise a jurisdiction vested in it without any legal justification, The leave to appeal is refused,"
' However, one may urge that above clause (3), of Article 199 of the Constitution is attracted, when the case relates to a member of Armed Forces pertaining to his terms and conditions of service or 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, and thus, above clause (3) is not applicable to the present case as the action complained of does not fall within its ambit.
' However, we may refer to clause (5) of the above Article 199, which inter alia provides that in this Article, unless the context otherwise requires, "person" includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan.
Admittedly the convict at the relevant time was a member of the Armed Forces. He was convicted by a Court or Tribunal (i.e, the General Field Court Martial) established under a law relating to the Armed Forces of Pakistan and, therefore, a writ could not have been issued against the General Field Court Martial or against the appellate Authority, which confirmed the conviction and sentence, by a High Court in view of above clause (5), of Article 199 of the Constitution as the above General Field Court Martial is excluded from the definition of person in clause (1), thereof.
13. However, it may be observed that if a person is not a member of Armed Forces and also otherwise is not subject to the Army Act, but is convicted by a Court/Tribunal under the Army Act, for a civil offence. In such a case the jurisdiction of a High Court will not be barred either under clause (3) or clause (5) of Article 199 of the Constitution,##TSE#
14. The upshot of the above discussion is that leave to appeal is refused and the petition stands dismissed.