MUHAMMAD ROSHAN ESSANI, J.---By this Constitutional petition, the petitioner Muhammad Aslam Arain has sought the following relief:--
(a) That this Honourable Court may be pleased to declare that the act of the respondent No,1 and his subordinate drivers of their trailer by removing the trailer and truck of the petitioner, without lodging F.I.R. At the police station of the local jurisdiction and subsequently detaining of the truck of the petitioner at their centre at Khairpur and demand of an amount of "Rs,1,00,000 from the petitioner for release of truck is illegal, void, without lawful authority, without jurisdiction, arbitrary, capricious, whimsical and in violation of law and Constitution as the respondent No,1 cannot take law into his own hands and become judge of his own cause. The act of the respondent No,1 is also malalideous and of ulterior motive so as to illegally save his subordinate drivers from legal punishment and damages caused by their negligent driving.
(b) That this Honourable Court be also pleased to order the respondent No,1 to produce the truck of the petitioner bearing Registration No,M.R.A. 1823 detained by him at their centre at Khairpur, in this Honourable Court, to be dealt with according to law and returned to the petitioner.
(c) Costs of the petition be awarded to the petitioner.
(d) Any other relief deemed fit in the circumstances of the case be also awarded to the petitioner." The brief facts of the case as disclosed by the petitioner in the petition are that he was employed as driver on truck bearing No,MRA-1823. He used to transport cheff from Kandiaro to Karachi. The respondent No,1 is incharge of N.L.C. Centre established by the respondent No,2 at Khairpur which is working under the Ministry of Defence, Government of Pakistan, Islamabad. The respondent No,2 is operating transport. The employees of the respondent No,2 are retired Army Personnel and they used to wear army dress. 'The respondent No,1 looks after the affairs as incharge of the drivers at Khairpur. On 25-1-1998 at about 5-00 p.m., the petitioner was going to Karachi and when he covered few miles distance from Kandiaro Town, a gunny bag containing the cheff was detached and cheff fell on the ground. The petitioner parked the truck by the side of the road and went to Bhiria for bringing labourers. One Muhammad Baladi was left behind at the truck. At about 11-00 p.m. Petitioner brought the labourers at the site but he found his truck missing. The petitioner remained in search of the truck but could not get any clue. On 26-1-1998 Muhammad Baladi went to the petitioner and informed him that while he was sitting in the truck, two trailers coming from opposite direction while overtaking collided with the truck of the petitioner. The cars were loaded on the trailers of National Logistic Cell. The driver of the trailer stopped the trailer and two persons who were in army uniform went to the petitioner and enquired from him as to why he parked the truck. He disclosed the reason but they informed him that damage has been caused to the cars loaded in the truck, therefore, they are taking the truck to their Centre situated at Khairpur. The person by name Muhammad informed them that he was not the driver and had no authority to remove the truck whereupon they got annoyed and misbehaved with him. They forcibly took away the truck to N.L.C. Centre, Khairpur. In the morning, the said Muhammad was produced before the respondent No,1 who released him with the direction to bring the petitioner. The petitioner on hearing this, accompanied Muhammad and his friend Amjad Ali Arain and went to respondent No,
1. The respondent No,1 informed the petitioner that some damage was caused to the vehicles loaded in the trailer of the respondent No,1, therefore, petitioner should pay an amount of Rs,1,00,000 to him otherwise the truck impounded by them would not be released. The petitioner declined to do so and informed him that the incident occurred due to the fault of the driver of the trailer belonging to National Logistic Cell. The respondent No,1 paid no heed to the constant requests of the 'petitioner and refused to release the truck. The petitioner approached the Kandiaro Police but they refused to intervene in the matter. Pursuant to the notice of this Court, the respondents filed the comments wherein they have, at the very outset, challenged the maintainability of the petition. We have heard Mr. Sardar Akbar F. Ujjan, learned counsel for the petitioner, Mr. Major (R) Abdul Rauf Khan, Headquarters Field Commander, on behalf of the respondents. Mr. Shaikh Abdul Ghani learned Deputy Attorney-General and Mr. Zawar Hussain Jafferi, learned Additional Advocate- General on Court notice. The latter both the learned counsel have adopted the arguments advanced by the learned counsel for the respondents. We have also perused the material placed on the record. It will be pertinent to reproduce herein below article 199 clause (3) of the Constitution of Islamic Republic of Pakistan for the sake of convenience:-- "199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order-- (i)..............................................
(ii).............................................
(b)............................................
(2)............................................
(3) 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."
The perusal of clause (3) of Article 199 of the Constitution is to be read in conjunction with clause (1) of Article 199 which envisages that no order shall be made under clause (1) of the Article 199, in relation to a person who is a member of the Armed Forces of Pakistan or is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, or in respect of any matter arising out of the 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.(Underlining is ours). The learned counsel for the petitioner at the very outset while arguing the case, has challenged the status of the National Logistic Cell (NLC). He has contended that National Logistic Cell (NLC) is not governed by the Army Act, thus any action taken by the personnels of National Logistic. Cell
(NLC) is not covered by Article 199, clause (3) of the Constitution and to be declared as unlawful in writ jurisdiction. He has further contended that the respondent No,1 is not an Army personnel and section 279, P.P.C. Is not included in the Schedule, therefore, it goes out of the ambit of Army Act. In order to arrive at a just decision of the case, it will be essential to glance over the idea of the creation of the National Logistic Cell (NLC), its aims, objects, facts involved in the case and the provisions of the Constitution. The perusal of material placed on record shows that Government of Pakistan constituted National Logistic Board consisting of Secretary, Finance Division, Secretary, Planning and Development Division and Quartermaster General, General Headquarters for the management of transportation/projects/work, entrusted to the Board from time to time. The Quartermaster General, General Headquarters was not only appointed as member but also to act as Secretary of the National Logistic Cell. In this context, it will be pertinent to reproduce hereinbelow the notification issued by the Government of Pakistan, in extenso:-- "Government of Pakistan CABINET SECRETARIAT (Cabinet Division)
NOTIFICATION Rawalpindi, the 12th August, 1978. No,120/19/78-Min.--The Government of Pakistan is pleased to constitute National Logistic Board consisting of the following for the management of transportation/projects/work entrusted to the Board from time to time:--
(1) Secretary , Finance Division ... Chairman
(2) Secretary , Planning and Development Division... Member
(3) Quartermaster General, General Headquarters.Member/Secretary .
2. The Board may co-opt any other member as and when considered necessary.
3. The terms of reference of the Board shall be as follows:--
(a) Transportation by all available means i,e, by hired mechanical transport, civil general transport, through contractors, trucks, railways, etc., the stores or commodities whose transportation is entrusted by Government to the National Logistic Board from one station/location to any other place/station/location, their loading and unloading: and entering into contracts for the same.
(b) Procurement of such transport trucks/equipment/spares etc. From within the country or abroad and its maintenance and repair.
(c) Building of truck bodies on chassis of various makers.
(d) Raising of such organization that may be necessary efficient performance of the mission assigned to the Board.
(e) Engaging staff and labour and making payments to them for their services or affording any other facilities to them on terms and conditions commensurate with the work/responsibilities entrusted to them.
(f) Hiring of any storage office, residential and any other type of accommodation.
(g) Engaging local and foreign consultants or contractors subject to the normal rules.
4. The functioning of this Board will be through a National Logistic Cell for day to day working headed by the Quartermaster General."
By Special Pakistan Army Order dated 5-3-1979, promulgated by the Chief of the Army Staff, the National Logistic Board was reconstituted and the functions of the National Logistic Cell to be carried out were defined in the notification. The same is reproduced hereinbelow:-- "Creation of National Logistic Board. Under the authority of Government of Pakistan, Cabinet Secretariat (Cabinet Division) Letter No,120/19/78-MM dated 12th August, 1978, sanction of the President was accorded to the creation of National Logistic Board (NLB). The constitution of the NLB is as under:-- Secretary , Finance Division, Islamabad.... Chairman Secretary , Planning Division, Islamabad... Member Quartermaster General, GHQ, Rawalpindi.Member/Secretary . The day to day working of the Board would be through the National Logistic Cell (NLC) headed by the Quartermaster General, NLC would undertake any functions assigned to it by the Government.
It will ensure the expeditious despatch of all essential commodities throughout the country."
The perusal of the above notifications reveals that the persons acting in the National Logistic Cell are subject to Pakistan Army Act, 1952. The Federal Government is competent to make applicable the provisions of Pakistan Army Act, 1952 by notification. In this context the section 5 and 7 of the Pakistan Army Act, 1952, are reproduced hereinbelow:-- "5. Powers to apply Act to certain Forces under the Federal Government.--(1) The Federal Government may, by notification,apply all or any provisions of this Act to any maintained in Pakistan under the authority Government or a Provincial Government."
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."
The section 2 of Pakistan Army Act, 1952 lays down that the force would be governed by the provisions of Pakistan Army Act, 1952. The copy of warrant "A" issued by the Chief of Army Staff to the Director-General, National Logistic Cell (NLC) shows that the latter was directed by the former to convene and confirm the proceedings of General Court Martial.
The plain reading of the above provisions of law clearly shows that the present petition before this forum is coram non judice. In the case of Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCM R 1614, it was observed by the apex Court at page 1629 as under:-- "It may be stated that subsection (1) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of person employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of person subject to the Army Act under clause (c) of subsection (1) of section 2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in respect of that force and may suspend the operation of any other enactment for the time being applicable to that force." In the case of Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), it was observed at page 493 as under:-- (xiii)1978-85. Chief Executive and then, from 1981 onward, Chairman, National Logistics Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G. The answering respondent created the National Logistic Cell (NLC). He did so in pursuance of a directive received by him on 23-7-1978. By 6-8-1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the re- organisation of Karachi Port so as to clear 2 million tons of wheat through this port in-between October, 1978 and April, 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organized the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, roved crude oil from the oil fields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities, reorganized the Lahore Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways." Again in the same citation at page 500, the word. "logistics" has been defined as under:- "The word 'logistics' according to the Chamber's Twentieth Century Dictionary means 'the art of movement and supply of troops'. This necessarily involves the management, operation and control of mechanically propelled vehicle. Therefore, logistics apparently is an allied field with the automobile engineering." In an unreported C.P. No,2502/1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and-it was observed that the entire set-up of National Logistic Cell
(NLC) is controlled by Army Officers. The Establishment is neither commercial nor industrial. The civil man-power working in National Logistic Cell (NLC) is incidentally connected with the Armed Forces. In the case of Brigade Commander Headquarters Field Command, NLC, Karachi v. The State (1996 M LD 469), it was observed that the trial of the Army Personnel could only be held by the Military Court.
In the case of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632) it was observed thatunder Article 199 (3), the jurisdiction of High Court is barred and it cannot superintend the affairs of the Armed Forces. In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others (PLD 1999 SC 504), it was observed that civil offences committed by civilians having nexus with the Armed Forces are triable by the Military Courts. In the case of Muhammad Mushtaq v.. Federation of Pakistan (1994 SCM R 2286), it was observed that under Article 199 for grant of relief under sub Article (1) thereof the relief regarding fundamental rights is included in Sub-Article (1) is clearly barred under Article 199 (3) with reference to sub-Article (1) thereof, therefore, High. Court has no jurisdiction in such matters. The decision of Apex Court in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCM R 664) relied upon by the learned counsel for the petitioner is of no avail to the petitioner as it also supports the contention of the respondents.
The upshot of the above discussion is that the petition is not maintainable and is misconceived.
Consequently, it stands dismissed alongwith listed application, with no order as to costs. However, the petitioner may exhaust his remedy before the proper forum provided under law.