' MIAN MEHBOOB AHMED, C.J.--- Petitioner, Sohail Ahmad, a resident of Karachi, has filed this petition under Article 203-E of the Constitution of the Islamic Republic of Pakistan to seek the review of judgment of this Court passed in exercise of suo motu jurisdiction conferred on it by Article 203- DD of the Constitution holding that the provisions of Army Act, 1952 are not inconsistent or repugnant to the Injunctions of Islam.
2. The petitioner earlier filed Shariat Petition No,2/K of 1994 praying that sections 24(a), 24(b) and 24(f) of the Pakistan Army Act, 1952 (Act XXXIX of 1952) are inconsistent with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. This petition came up for hearing before a Full Bench of this Court at Islamabad on 29th of November, 1995 when no one appeared for the petitioner and the same was dismissed in limine vide order, dated 29th November, 1995. However, it was observed in the said order as under:-- "The Army Act has already been examined by this Court in its suo motu jurisdiction and nothing was found in section 24 thereof which could be held as inconsistent with the Injunctions of Islam.
However, if the petitioner wants to agitate his point, he may come up with review petition to this Court. The petition is dismissed in limine."
3. The present petition is almost a copy of the earlier Petition No,2/K of 1994 with the modification that only section 24(a) and (b) of the Army Act have been questioned as repugnant to the Injunctions of Islam and challenge to section 24(f) made in the earlier petition has been omitted.
Sections 24(a) and 24(b) of the Army Act are reproduced hereunder for facility of reference:-- "24. Any person subject to this Act who commits any of the following offences that is to say--
(a) Shamefully abandons or delivers up any garrison, fortress, airfield, place, post or guard committed to his charge or which it is his duty to defend, or uses any means to compel or induce any Commanding Officer or other person to do so any of the said act; or
(b) in the presence of any enemy, shamefully casts away his arms, ammunition, tools or equipment, or misbehaves in such manner as to show cowardice; or shall, on conviction by Court martial, be punished with death or with such less punishment as is in this Act mentioned."
4. The petitioner has today appeared in person. We have heard him at length. The thrust of his arguments is that by the addition of the word "shamefully" in both of the abovementioned provisions it has been impliedly provided that if the Act as contemplated by the said subsections is not done "shamefully" it would not constitute an offence. The petitioner has also expressed his strong reaction submitting that casting away of arms or abandoning garrison, fortress etc. By a Muslim soldier would constitute an offence in all circumstances as a person professing the faith of Islam is expected to fight till last and not to ever think of surrender. In support of his above contention the petitioner has placed reliance on Verse 154 of Surah Al-Baqara and Verses 15/16 of Surah Anfaal.
5. We have given anxious consideration to the submissions made by the petitioner. We, however, do not feel inclined to agree with him. The main objection of the petitioner is to the mention of the word "shamefully" in the imagined provisions. We are of the view that the presence of the word "shamefully" is not only not repugnant to the Injunctions of Islam but was essentially required to as to specify the acts in the subsections which may constitute an offence and distinguish them from those acts which may have been done justifiably with good reasons so that subsequently at the time of disciplinary proceedings/Court Martial as envisaged by the said subsections all the aspects of the acts done by a soldier/officer of the Pakistan Army are clearly before the concerned authorities and are thoroughly and minutely examined in the proper perspective and each and every circumstance is duly taken into account for essentially determining the responsibility of any accused and holding him guilty or innocent for commission or omission of acts mentioned in the impugned provisions. It may be pertinent to observe here that there is and can possibly be no cavil with the proposition that a Muslim soldier/Officer is expected and rightly so to perform his duty with all courage and bravery and to fight for the cause of national defence/Jehad till the last and even at the cost of his life. It is for the above purpose that Verse 154 of Surah Al-Baqara cited by the petitioner as well as Verses 169-171 of Surah Al-e-Imran were revealed on the Holy Prophet (S.A.W.) and must, therefore, hold the field. However, it can also be not lost sight of that in wars/Jehad/armed conflicts operational strategy has to be adopted according to the circumstances and requirements to meet exigencies and situations arising on the spot from time to time. The verse relied upon by the petitioner also provides the meeting of such situations and has created necessary exceptions to make this aspect of the matter clear and beyond doubt. The verse translated in English reads as under;-- {{ARABIC TEXT}} ' "0 ye who believe!
' When ye meet ' The Unbelievers ' In hostile array, ' Never turn your backs ' To them ' If any do turn his back ' To them on such a day - ' Unless it be in a stratagem ' to a troop (of his own) - ' He draws on himself ' The wrath of God, ' And his abode is Hell, - ' An evil refuge (indeed)!"
' (Surah Anfaal Verses 15 and 16) _ ' The words underlined above highlight those situations which took some retreats out of the pale of offences. In the history of Islam there is no dearth of examples to show that Mujahideen who demonstrated commendable qualities of head and heart, courage and valour in wars and armed conflicts throughout the encounters in which they participated and engaged themselves even against manifold larger armies in certain situations also demonstrated practical wisdom by vacating and abandoning some of the place/places as a measure of strategic and tactical requirements. It is not an impossibility that in combats and armed conflicts situations may arise where holding a post or a garrison by Muslim soldiers may bring about disastrous results which may not eliminate that set of soldiers but may also be detrimental to the larger objectives and the retreat by abandoning the resistance would be more desirable not only for saving their own lives but also to achieve more lasting and desirable results. Blind sticking to a situation may tantamount to suicide or self-destruction which is not permitted by our Creator. This cannot, therefore, be laid as an inflexible rule that in no circumstance abandoning of a post is warranted by Muslim soldiers.
6. We are of the considered view that the qualifying adverb "shamefully" is, in fact, a word of great significance and used most appropriately as it implies that iodine, ones is accused of 'abandoning a Post/garrisbn etc. As mentioned in the said subsections who was reasonably justified to do so on account of any direction from his senior or does so himself to meet the exigencies of a given situation which require accepting lesser harm to avoid a greater one, such act done during the performance of his duties should not be considered as an offence. We find strength in our above view from Surah Al-Baqara where Allah Almighty ordained as under:--{{ARSBIC TEXT}} "And make not your own hands Contribute to (your destruction)."
' Again in Surah Anfaal the two types of Injunctions have been made by Allah Almighty that cater for different situations/circumstances:- {{ARABIC TEXT}} "0 Apostle! Rouse the believers ' To the fight. If there are ' Twenty amongst you, patient ' An persevering, they will ' Vanquish two hundred: if a hundrea A ' They will vanquish a thousand of the Unbelievers: for these ' Are a people without understanding.
' For the present, Allah ' Hath lightened your (task), ' For He knoweth that there is ' A weak spot in you: ' But (even so), if there are ' A hundred of you, patient ' An persevering, they will ' Vanquish two hundred, and if ' A thousand, they will vanquish ' Two thousand, with the leave Of Allah for Allah is with those ' Who patiently perseverse."
' (Surah Anfaal Verses 65 - 66)
While interpreting and examining any provision of law on the touchstone of Qur'an and Sunnah, one must always bear in mind that Islam is a Deen i,e, a during the course of life and, therefore, Qur'an-e-Hakeem has also given complete code of life which takes into account all practical situations arising through the above Verses the guidelines for the conduct of believers during Jehad and armed conflicts and duly catered for and taken into account the human failings and weakness. Allah Subhan-hu-Watgla does not want any faithful/Muslim to unnecessarily stake his life and waste it without any reasonable justification. It goes without saying that at times saving of one individual life might carry more weight and be more beneficial to the Umah than any military equipment/installation etc. The Holy Qur'an has emphasised this fact in Surah Anfaal (Verse No,60) where Allah Almighty has ordained the Muslims to muster maximum possible force against their enemies so as to strike terror into their hearts and besides making the required preparation, they have been further ordained to take all necessary pre-cautions (see Surah Nisa Verse Nos.71 and 102).
7. From the conjunctive reading of the various Surahs of Qur'an-eHakeem, cited above it clearly emerges that a Mujahid though he is required to be always stead-fast in performance of the mission, entrusted to him may at times, despite his efforts and endeavor be placed in a situation and constrained to do what apparently cannot look ideal but all the same was necessitated by dictates of strategic significance, operational exigencies or other situational demands. In the light of above discussion we are clear in our minds that impugned subsections of section 24 in fact, are intended to cater for such-like circumstances and the phrase "shamefully" has been with good intention and full knowledge incorporated as the proper phrase to reach correct conclusions. Not only we have no doubt in our minds that the qualifying adverbial clause "shamefully" has been rightly placed in the said subsections so as to make it convenient and clear to appreciate each act of commission or omission in its proper perspective before recording C conviction or acquittal of any personnel of armed forces who may be accused of having done any of the acts mentioned therein but that it was most essential to have placed the said word in the provisions in question. We would, therefore, hold that the provisions of sections 24(a) and 24(b) in no manner offend the Injunctions of Islam and are not repugnant to the Holy Qur'an and Sunnah of the Holy Prophet (S.A.W.).
8. Before parting with the case we may also observe that the present petition suffers from laches of high order. This petition filed on 28th of March, 1996 seeks review of order of this Court passed on 29-11-1985 that is to say that review petition has been filed after more than 10 years whereas Rule 31-D of the Federal Shariat Court (Procedure) Rules, 1981 provides that an application for review has to be filed within 90 days from the date of the decision given or order made by the Court. The petitioner has afforded no sufficient cause rather no plausible explanation even for his failure to make an application for review within the specified period and the inordinate delay of years together remains wholly unexplained. Not only that the present petition has also been filed beyond 90 days from the date of passing the order in the earlier petition of the petitioner viz. Shariat Petition No,2-K of 1994. The unexplained inordinate delay in coming to this Court by itself is also a sufficient ground not to entertain this petition which has been found otherwise also without merit.
9. Resultantly this petition is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.