NAHEED MAQSOOD Versus FEDERATION OF PAKISTAN

ORDER

1. This petition has been filed by the wife of a condemned person, Spoy Masood Ali Khan, at present confined in Central Prison, Karachi.

2. The said Masood Ali Khan was arrested on 16‑I1‑1992 in connection with a double murder allegedly committed by him. It has been pointed out that he was charge‑sheeted before the VII Additional Sessions Judge, Karachi East, but vide order dated 23‑12‑1992, he was declared as an absconder. However, he was subsequently captured and handed over to the Army authorities who charge sheeted him before General Field Court Martial constituted under the Pakistan Army Act, 1952, to stand his trial. The accused was then tried for Qatl‑i‑Amd and convicted sentenced to death. He filed his appeal under the provisions of the Pakistan Army Act, which was dismissed. Thereafter, he sent his mercy petition to the Chief of the Army Staff, Pakistan Army (respondent No.2) but same was also rejected and hence this petition.

3. The main contention of Chaudhry Iftikhar Ahmed, the learned counsel for the petitioner, is that the said accused could not be subjected to trial by the General Field Court Martial on account of section 59(2) of the Pakistan Army Act, because the persons allegedly murdered by him were not Army personnel and the offence was not committed by the accused while he was on active service as on the alleged date of the incident i.e. 12‑11‑1992, he was on leave.

4. The petition has been resisted both by the learned Additional Advocate General and the learned Deputy Attorney‑General, who have appeared on Court's notice as this petition has not yet been admitted for regular hearing. The preliminary objection raised by them has been that, even if the accused has a good prima facie case on merits, this Court cannot exercise jurisdiction in this case on account of clauses (3) and (5) of Article 199 of the Constitution. The said clauses provide as follows:

5. "199(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."

(5) In this Article, unless the context otherwise requires,‑‑ ' person' includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan, and

---------------------------------------------

6. A plain reading of clause (3) of Article 199 of the Constitution clearly indicates that an order shall not be made under clause (1) or the said Article in relation to a person who is a member of the Armed Forces of Pakistan or who is for the time being, subjected to any law relating to any of those Forces in respect of his terms and conditions of his service or 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.

7. In the present case, the accused was a member of the Armed Forces of Pakistan and his trial under the Pakistan Army Act was held on that account. Reference to clause (5) of Article 199 further indicates that the expression "person" has been defined to include anybody politic or corporate, any authority of or under the control of the Federal Government of a Provincial Government and any Court or tribunal. But, as is further indicated by clause (5) of the said Article, the expression "Court" or "Tribunal" does not include the Supreme Court, a High Court or a Tribunal established under a law relating to the Armed Forces of Pakistan. There is no controversy in regard to the fact that the Army Tribunal which tried the accused and found him guilty, was a Tribunal established under the Pakistan Army Act and it related to the Armed Forces of Pakistani. It therefore follows that this petition has, been filed not only in relation to a person who is a member of the Armed Forces of Pakistan, but the matter in respect of which the petition has been filed, arises in relation to action taken against the accused as a member of the Armed Forces of Pakistan and a person subject to law relating to the Armed Forces of Pakistan but the General Field Court Martial, which tried the accused, is also not amenable to the writ jurisdiction of this Court, being a Tribunal established under the law relating to the Armed Forces of Pakistan. We are further fortified in this view by a judgment of the Lahore High Court in the case of Khan Younus Khan v. The State (1996 MLD 414) wherein it was held that jurisdiction of the High Court to entertain a petition in the nature of habeas corpus against the detained serving army personnel was barred under Article 199(3) of the Constitution. In the case of Abdul Ghaffar v. The Federal Government and 2 others (PLD 1996 Kar. 525), a Full Bench of this Court declined to exercise jurisdiction in respect of a case challenging the holding of Office of the Chief of Army Staff by the respondent. In the case of Muhammad Mushtaq v. The Federation of Pakistan (1994 SCMR 2286), Muhammad Afzal Zullah, CJ (as he then was) declined to grant leave in respect of an order passed by the High Court, declining to exercise jurisdiction in a matter ‑where the jurisdiction of the Court was barred under Article 199(3) of the Constitution.

8. The only contention of Chaudhry Iftikhar Ahmed, the learned counsel for the petitioner, in this regard before us has been that because trial of the accused by the General Field Court Martial was itself without lawful authority, the provisions of clauses (3) and (5) of Article 199 of the Constitution would not be applicable. Support was sought by him from the case of Major Karam Elahi v. The. State (1977 SCMR 499) wherein contention regarding ouster of jurisdiction of the Civil Courts on the ground that the accused was in active service of the Army was repelled. However, the question decided by the Supreme Court in the said case has no bearing on the question raised in the present case.

9. We are unable to subscribe to the view expressed by Chaudhry Iftikhar because no such distinction has been drawn by Article 199 of the Constitution. Therefore, in a case where the said clauses of Article 199 of the Constitution are attracted, the ouster of jurisdiction if any, is absolute and it is not conditional upon the existence of some special circumstances.

10. In the result, without going into merits of the case on account of ouster of jurisdiction of this Court by clauses (3) and (5) of Article 199 of the Constitution, this petition is dismissed in limine. The miscellaneous application fixed for hearing alongwith the petition, has also become infrnctuous in view of this order and the same is also dismissed.

11. A.A./N‑19/K Petition dismissed.