' TASSADUQ HUSSAIN JILANI, J.--- With the consent of the parties this petition is being converted into appeal and is disposed of in the terms as under:--
2. Through this appeal the Government of Pakistan has challenged the judgment, dated 27-8-2003 passed by the High Court of Sindh Karachi vide which the Constitutional petition filed by respondent No,1 challenging the detention of her son (Krishan Sharma) was disposed of with observations/directions as under:--
(i) that the High Court had jurisdiction under Article 199 of the Constitution to interfere where the order passed by an authority is mala fide, without jurisdiction or is coram non judice;
(ii) that the detenu Krishan Sharma be produced before a Special Magistrate to be tried under the provisions of Official Secrets Act, 1923;
(iii) that in terms of section 59(4) read with clause (d) para (ii) ofsubsection (1) of section 2 of Pakistan Army Act the condition precedent for trial under the Pakistan Army Act is that a person accused of an offence was subject to the Act at the time of commission of the offence; (paragraph 26 of the -impugned judgment); (iv)- that this Court in F.B. Ali's case PLD 1975 SC 506 has held that civilian can be tried under the Act " ... In certain circumstances gravely affecting the maintenance of discipline in the army. The nexus required is that they should be persons who are accused of seducing or attempting to seduce any person subject to the. Army Act from his duty or allegiance to Government".
(Paragraphs 22 and 33 of the impugned judgment).
3. Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan right at the outset submitted that the detenu was arrested under the Official Secrets Act read with section 2 clause(d) para.(ii) of the Pakistan Army Act (hereinafter referred to as the "Act") but during investigation the offence could not be proved and he was let off. However, he added that the observations made in paras.22, 26 and 33 of the impugned judgment are not inconsonance with the mandate of law; that the judgment of this Court in F.B. Ali's case PLD 1975 SC 506 has not been correctly interpreted and that the Sindh High Court has not considered the law laid down by a Division Bench of the Lahore High Court in Allah Rakha v. District Magistrate, Sialkot and others. PLD 1968 Lah, 1061.
4. Learned counsel for the respondent Mr. Rashid A. Rizvi defended the impugned judgment by submitting that the detenu Krishan Sharma was admittedly a civilian; that a civilian could only be tried under the Act, if he is guilty of seducing an Army Officer; that the judgment of the Sindh High Court is in accord with the law laid down by this Court in F.B. Ali's case (supra) and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504.
5. We have heard learned counsel for the parties and 'have given anxious consideration to the submissions made. The issue mooted in this petition revolves upon the interpretation of section 2 subsection (1) clause (d) paras.(i) and (ii) of the Act, a reference to which would be in order:-- "2. Persons subject to the Act.--- (1) The following persons shall be subject to this Act, namely:--
(a) officers, junior commissioned officers and warrant officers to the Pakistan Army;
(b) persons enrolled under. The Indian Army Act, 1911 (VIII of 1911), before the date notified in pursuance of subsection (1) and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;
(bb) ........................................................................................
(c) ..........................................................
(d) persons not otherwise subject to this Act who are accused of
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan. An offence under the Official Secrets Act, 1923."
(iii) ..........................................................................................
Paragraphs (i) and (ii) of clause (d) of subsection (1) of section 2 of the Act referred to above spell out circumstances under which persons who are not otherwise subject to the Act would fall within the mischief of the Act and both the clauses are disjunctive. The Sindh High Court in holding that the civilians can be tried under the Act only if they are accused of seducing or attempting to seducing any person subject to the Act from his duty or allegiance to the Government has confined itself to A para. (i) of clause (d) of subsection (1) of section 2 of the Act referred to above and has totally ignored the import of paragraph (ii) which expressly lays down that civilian would be subject to the Pakistan Army Act if he has committed an offence "in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923".
6. The facts and law laid down in F.B. Ali's case PLD 1975 SC 506 are distinguishable. The ratio laid down is not supportive of the impugned observations made in the judgment under challenge. We note that section 2 of the Act was amended more than once and paragraphs (i) and (ii) of clause
(d) of subsection (1) of section 2 of the Act were inserted by Ordinance III of 1967. This enlarged scope of the afore-referred provision and the import of the deeming clauses of section 59 of the Act were commented upon by this Court in the afore-cited judgment and it was held at page 532 as under:- "The object of adding subsection (4) was to give jurisdiction to try an offence mentioned in clause
(d) of subsection (1) ofsection 2 as if it was an offence under the Army Act and was committed at a time when such person was subject to the said Act, merely to avoid the objection that if a person to whom clause (d) of section 2(1) applied was to become subject to the Act only from the time of accusation then the offence which would necessarily have been committed before such accusation, would not be triable under the Act. The new subsection (4), by using the words 'such offence' necessarily refers to an offence mentioned in clause (d) and no other offence and, therefore, an offence which is not mentioned in clause (d) would not be triable by a Court Martial under the said subsection."
At page 535 it was further observed as follows:-- "The further contention of the learned counsel appearing on behalf of the appellants is that since subsection (1) was in the Army Act before the incorporation of clause (d) in section 2 and subsection ,(4) in section 59, its operation was limited to the four categories originally mentioned in section 2 of the said Act and did not extend to new categories brought in by the amendment introduced by Ordinance No,III of 1967. I am unable to accede to this contention, because the effect of the incorporation of clause (d) was to enlarge the category of persons who were to be made subject to the provisions of the Army Act and once the category is so enlarged, they would also come within the mischief of the subsection (1) of section 59 by reason of the deeming clause therein in respect of civil offences committed after they became so subject."
' In Allah Rakha v. District Magistrate, Sialkot and others PLD 1968 Lah. 1061 the Lahore High Court dealt with the effect of newly added provisions in the Pakistan Army Act and the circumstances under which the civilians could be tried under the Act. It held as under:- "6. Section 59 of the Act deals with the question of punishment for civil offences committed by persons who are subject to the Act. By Ordinance IV of 1967, described as the Defence Services Laws (Second Amendment) Ordinance, 1967, a new subjection (4) was added to section 59 of the Act in the following terms:- "(4) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly."
"The meaning of this newly added provision is quite clear, as it obviously intended to give effect to the newly added clause (d) of subsection (1) of section 2 of the Act. This provision makes it clear that a civilian accused of a civil offence could be dealt with under the Pakistan Army Act if he fell within the ambit of clause (d) of subsection (1) of section 2 of the Act."
The afore-referred judgment of the Lahore High Court was considered by this Court in F.B. Ali's case (supra) wherein at page 534 it was observed "the reference to Allah Rakha v. District Magistrate, Sialkot PLD 1968 Lah. 1061 is also not apt, because the offence there was one under the Official Secrets Act, 1923 which is one of the offences mentioned in clause (d)(ii) of section 2(1) and to "such offences" subsection (4) of section 59 was directly attracted".
7. For what has been discussed above we are inclined to dispose of this petition with the observation that paragraphs 22, 26 and 33 of the impugned judgment had ignored the import of paragraph (ii) of clause (d) of section 2(1) of the Act and that the paragraphs are disjunctive. The said judgment stands modified accordingly. No order as to costs.