' MUHAMMAD NAWAZ ABBASI, J.-Muhammad- Akram Awan, petitioner, Commissioned Officer in the P.A.F. After desertion from the Air Force, since November, 1979, remained out of the country for sometime and having faced trial for the charge of desertion was convicted and sentenced to one year's R.I. And was sent to the civil prison in 1985. During the year 1987/88 he allegedly communicated secrets pertaining to the defence to the Indian and Israili intelligence agencies, and therefore, was arrested in a case under Official Secrets Act, 1923 on 1-5-1988. The petitioner having faced trial before the Fields General Court Martial was found guilty of the charge and vide verdict given by the Court on 21-11-1991 was convicted and sentenced to rigorous imprisonment for fourteen years. The petitioner through this petition has challenged his conviction and sentence inter alia on the major ground that he having left Pakistan Air Force much before the alleged commission of offence, was no more member of the Air Force, therefore, his trial by the Field General Court Martial under the Pakistan Army Act, 1952, was without jurisdiction.
2. Learned counsel for the petitioner additionally argued:--
(a) That the petitioner having not provided opportunity of cross-examination to the witnesses at the trial was condemned unheard.
(b) That the criminal charge being mala fide the conviction was corum non judice.
(c) That since section .133 of the Pakistan Army Act, 1952, was declared repugnant " to the Injunctions of Islam by the Shariat Appellate Bench of the apex Court through judgment, dated 18- 9-1988 in a case Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) and therefore, from the date of decision of the apex. Court till 22-12-1992, on which date the Pakistan Army (Amendment) Act, 1992, was promulgated, the convicts under Pakistan Army Act, 1952 would be entitled .To the right of appeal and since no such right was provided under the statute, therefore, the petitioner could challenge the conviction and sentence awarded to him by the Field General. Court Martial on 21-11-1991, before this Court through this petition in absence of right of appeal.
3. Qazi Ahmad Naeem Qureshi, Federal Counsel assisted by Lt.-Cola Syed Muhammad Iqbal Hashmi, Assistant J.A.G., submitted that necessary steps for amendment in the Pakistan Army Act, 1952, were taken immediately after announcement of the judgment by the Shariat Appellate Bench of the Supreme Court of Pakistan and finally the Act was amended in December, 1992. He, however, argued that the proposition under discussion was exhaustively dealt with by the apex Court in Captain Arshad Pervaiz's case known as. Tando Blawal's case and it was held that since the remedy of appeal was not available to a convict under the Pakistan Army Act, 1952, before 22-11- 1992, therefore, the conviction awarded by the Field. General Court Martial before 22-11-1992 was not appealable and the apex Court in the similar circumstances dismissed Civil Petition No,66 of 1996 through judgment, dated 26-10-1999. We may observe that non-availability of appeal would not mean that. Conviction would be challengeable through Constitutional petition as of a right. We may point out that this Court in Anwar Aziz Khan's case in an identical situation dismissed the Writ Petition No,1150 of 1995 through judgment dated 8-6-1996 with the observation that the convicts in the intervening period i.e, 1-1-1989 to 22-L2-1992, could avail the provision of section 132 of the Pakistan Army Act, 1952.
5. The legal position is that under statute no right of appeal was available in respect of conviction awarded by the Field, General Court Martial before 22-11-1992 on which date in pursuance of the judgment of apex Court PLD 1989 SC Page 6, the Pakistan Army (Amendment) Act, 1952, was promulgated. The contention of the learned counsel that the right of appeal was made C available from the date of judgment i.e, 1-1-1989 which was wrongly withheld and therefore, the conviction could be challenged even on facts before this Court in its. Constitutional jurisdiction was without force. The learned counsel for, the petitioner contended that the moment a law is declared repugnant to the Injunctions of Islam, notwithstanding the time to be specified for necessary enactment a right under Articles 203-D and 203-F of the Constitution of Islamic Republic of Pakistan, 1973 is created forthwith. The Articles in question provide as under:-- "203-D. The Court may [either of its own motion or] on the petition of the citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, (p.b.u.h.) nereinafter referred as to the Injunctions of Islam."
"203-F Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court."
6. The Shariat Appellate Bench of the Supreme Court of Pakistan in Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) held as under:-- "In the result, the provisions of section 133 of Pakistan Army Act, section 162 of Pakistan Air Force Act and section 196 of Pakistan Navy Ordinance must be held as repugnant to the Injunctions of Islam and, therefore, void. The appellant is, accordingly, directed to suitably amend section 133-A of the Pakistan Army Act, 1952; section 162-A of the Pakistan Air Force Act, 1953; and section 138-A of the Pakistan Navy Ordinance, 1961, by providing a right of appeal against the orders passed by the Court Martial, except for petty offences as discussed above. The necessary amendment shall be carried out by 1st January, 1989, in section 133-A of Pakistan Army Act, 1952; section 162-A of Pakistan Air Force Act, 1953, and section 138-A, Pakistan Navel Ordinance, 1961, in the terms indicated above".
7. In the Muhammad Pervaiz's case the apex Court held as under:-- "Federal Shariat Court and the Shariat Appellate Bench of this Court are no doubt empowered to decide that any law or provisions of law is repugnant to the Injunctions of Islam and also to specify the day on which the decision shall take effect: Clause 3(a) of Article 203-D) of the Constitution, however, lays down, that if any law or provisions of law is held by the Court to be repugnant to the Injunction of Islam, the precedent in the case of a case law with respect to matter in the Federal Legislative list or the concurrent Legislative list or the Governor in the case of a law with respect to a matter not enumerated in either of these lists, shall take step to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam. As noted above, necessary amendment in the Pakistan Army Act was made by adding section 133-B which created a Court of appeals and provided a right of appeal 'any person to whom a Court-Martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992' which Act as stated above, received the assent of the President on 22-12-1992. Law is fairly well settled that right of appeal is a creator of Statute and it may be specified in clear terms that the appeal lies against a decision, judgment or order. No one can claim to have a right of appeal unless it is expressly conferred by a Statute. Such right cannot be inferred by implication. Refer to (1) I.C.I. Pakistan Limited v. Salahudin and others (1991 SCM R 15), (2) Habib Bank Limited v. The State and 6 others (1993 SCM R 1853), (3) Karam Dad and others v. Emperor (AIR 1941 Lahore 414). Needless to observe that the right of appeal conferred by ,section 133-B was not given retrospective effect."
8. The emphasis of learned counsel that in absence of statutory right of appeal against the convictions before 22-12-1992, the same could be challenged under general law, in the light of the verdict given by the Shariat Appellate Bench of the Supreme Court of Pakistan has no legal force.
The petitioner neither could Avail the right of appeal under the statute nor any appellate forum was available or provided before 22-12-1992 and the subsequent availability of same through the Pakistan Army (Amendment) Act, 1992 would not create right of appeal in favour of the convicts who sustained conviction before the said date. Since no such conviction was challengeable through a Constitutional petition on any ground other than those given in Mustafa Khar's case PLD 1989 SC p.
26. The relevant observation made by the apex Court as under:-- "These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances, but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause. And the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principle consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts or to he construed strictly with a pronounced leaning against ouster."
9. Therefore, the petitioner could not challenge the conviction on merits either through an appeal or Constitutional petition as observed by the apex Court in Arshad Pervaiz's case, and we in exercise of our jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot review the law laid down by the apex Court: The petitioner instead of agitating the matter before this Court should approach the concerned forum under section 132 of the Pakistan, Army Act, 1952 for an appropriate relief. This writ petition being not maintainable stands dismissed.