Mst. YASMEEN AKHTAR vs FEDERATION OF PAKISTAN through

' MUJAHID MUSTAQEEM AHMED, J.--- Petitioner's son Istehzar Hussain a 'Shaheed' of Pakistan Army, embraced "Shahadat" during 'operation Janbaz', on 11th October, 2009, at G.H.Q., Rawalpindi and his widow Mst. Khalida Nasreen was allowed 'Special Family Pension' benefits under Rule 100(a)(2) of Pension Regulations Vol-1 2010. Later on, she married with brother of Istehzar Hussain, so petitioner being mother of the deceased was allowed 40% 'Special Family Pension' benefits as per Rule 100(b)

(4) ibid. The petitioner through her counsel submitted representation for grant of 100% Special Family Pension benefits but her request was not acceded to. Through this writ petition, the petitioner has challenged the letter No,4635/54/PPA-8- VXX99 dated 02 May, 2012, by which her claim for grant of 100% 'Special Family Pension' benefit has been declined, mainly on the ground that she has been discriminated in case of grant of 'Special Family Pension' benefits and another similar placed lady mother of Daffadar Faisal Nadeem (Shaheed) has been granted full pension benefits, vide letter Annexure-D. Prayer has been made for allowing the writ petition and declaring her entitled to full 'Special Family Pension' benefits.

2. The respondent in parawise comments has denied the claim of the petitioner maintaining that as per rule 100(b)(1) ibid after disqualification of widow, parents and children are eligible for second life Dependent pension @ 40% of the actual pension benefit under Rule 100(b)(4) ibid. The respondent deliberately has not commented about grant of such pension benefits to mother of Daffadar-Faisal Nadeem (Shaheed) vide Annexure-D.

3. Heard.

4. Learned standing counsel for respondent has maintained that under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, (The Constitution), this Court is not competent to hear the writ petition as the matter being agitated before the Court is arising out of the service matter of Army personnel and relates to the terms and conditions of the service. In support of her contention, she has relied on unreported precedent "Lieutenant Colonel Abdul Ghaffar Khan Babar and Lieutenant Colonel Khalid Mehmood Abbasi v. Federation of Pakistan" C.Ps.Nos,1231 and 1232 of 2010.

5. On the other hand, learned counsel for the petitioner has maintained that this contention is misconceived one. The widow of army personal has approached this Court for establishment of her own pensionary rights and as such this writ petition is competent. Reliance has been placed on unreported judgment of August Supreme Court of Pakistan in C.As. Nos,173 of 2012 and 323 to 335 of 2014, decided on 07.12.2015, wherein it was held in para No,7 as under:- "This Court in its various pronouncements has consistently and conclusively held with regard to person subject to the Pakistan Army Act, 1952 or any other law relating to Armed Forces of Pakistan that the bar of jurisdiction contained in sub-Articles (3) and (5) of Article 199 of the Constitution is not absolute and the Court always has the jurisdiction to examine whether the Order challenged suffers from mala fides including malice in law or is without jurisdiction or coram-non-judice...."

' Thus, keeping in view the facts of this petition and the above latest case law referred by the learned counsel for the petitioner, this Court is of the view that the bar of jurisdiction of this Court is not absolute and under the principle of judicial review, Court can examine the legality of the order dated 01.05.2012 by which petitioner has been deprived of Special Family Pension benefits and has been discriminated in similar placed person (Annexure-D). Thus, this contention of learned counsel for respondent is repelled.

6. I have examined the above referred pension rules. Under Rule 100, 'Special Family Pension' benefits have been allowed to Widow/ Parents/Children and Dependent Pension of HCOD/JCOs/Soldiers, etc w,e,f, 01.07.2005 and it is applicable to all causalities occurring on or after such date. Special Family Pension benefits under Rule 100(a)(1 and 2) have been allowed in case of death, in operational areas, field areas during counter insurgency or internal security duty etc. Under rule 100(b), a widow is first recipient of full Special family pension at the time of causality.

Under rule 100(b)(2) ibid in case where the parents happened to be first recipients, they are entitled to family pension vide Rule 100(1) and (2). Under rule 100 sub-Rule 4(a), dependent pension is admissible to parents in case there is no wife, as specified under rule 100(1) and (2) ibid and other heirs/children are entitled to 40% pension. The respondent has refused 'Special Family Pension Benefits' to the petitioner on the basis of Rule 111 ibid. Suffice to observe that this rule relates to 'Family Pension' only and it is not applicable to 'Special Family Pension' benefits admissible under rule 100 ibid. For that very reason, in this Rule, term 'Special Family Pension' benefits has been omitted. Rule 100 ibid has independently enumerated the persons who are entitled to 'Special Family Pension' benefits and the rate of pension. Thus, I am of the view that the petitioner is entitled under the above rules, 100% of 'Special Family Pension' benefits and refusal on part of respondent for such pensionary benefits is clear-cut violation of the above pension rules and is based on discrimination. The petitioner in the instant case has not been dealt with in accordance with law and her claim for full special family pension benefits has been refused in utter disregard of the rules. The similar placed mother of Dafadar-Faisal Nadim vide Annexure-D has been transferred 100% Special Family Pension, in lieu of share of widow. There is no denial of respondent in this regard. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, has guaranteed that each citizen will be treated in accordance with law and under Article 25 of the Constitution, all citizens are equal before law and entitled to equal protection of law and there shall be no discrimination amongst the citizens.

7. Learned Standing Counsel for Federation of Pakistan, further maintained that under Rule 13 of pension regulations Volume-2 of Armed Forces, 2010, it was open for the petitioner to submit an appeal before Pension Appeal Committee but she has not availed the alternate remedy and on this score also, the writ petition is not competent. In rule 15 ibid limited jurisdiction has been given to pension appeal committee, only in case of rejection of claim i,e, decision against entitlement on the ground that death and disability was not due to or aggravated by Military Service and assessing the degree of disability. The case of the petitioner does not fall within the purview of Rule 15 ibid, so this objection is also repelled.

8. Consequently, this Court has come to the conclusion that 'Special Family Pension' claim of the petitioner has been refused wrongly malafidely and without any valid basis, in violation of above pension rules and as such petitioner has been discriminated and not equally treated under law by respondent. These rules were framed for prompt and adequate pensionary benefits to the families of martyred army personnel/non-commissioned officers to acknowledge the services of bold/courageous "Jawans" embracing `Shahadat' for the motherland, A to boost the morale of members of armed forces to combat against all internal and external enemies, end Terrorism of all sorts, to share their grieves, compensate their legal heirs/dependants to enable them to live dignified /independent life. But in the case in hand, right of mother of "Shaheed" to live a respectable life (guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973) has been blatantly refused, thus the impugned order is declared without lawful authority and having no legal effect. Petitioner will be entitled to get 100 % 'Special Family Pension' benefits. This writ petition is allowed in the above in the above terms.