SAJJAD HAIDER Versus FIELD GENERAL COURT MARTIAL, RAWALPINDI

1. SHAFIUR RAHMAN, J .‑‑The petitioner, convicted and sentenced by a Field General Court Martial, seeks leave to appeal against the judgment of the Lahore High Court dated 23‑6‑1987 whereby his Intra Court Appeal was held to be incompetent and dismissed in limine, on that account.

2. The petitioner was earlier employed as a Civilian Intelligence Officer, in the Inter‑Services Intelligence Directorate, Islamabad. He was 'tried before a Field General Court Martial under section 3 of the Official Secrets Act, 1923 read with section 59 of the Pakistan Army Act, 1952. The findings and the sentence twice recorded by the Field General Court Martial, was not confirmed by the Convening officer as required under section 126 of the Pakistan Army Act. It was the finding of the third Field General Court Martial, which was ultimately confirmed and promulgated. The petitioner was found guilty and sentenced to 5 years' rigorous imprisonment.

3. The petitioner challenged his conviction and sentence by invoking the Constitutional jurisdiction of the High Court. The main ground taken up by the petitioner was that under section 126 of the Army Act, the power of ordering revision could be exercised by the Confirm in Officer only once and not twice as was done in the case of the petitioner. This, according to the petitioner, rendered his trial for the third time and the confirmation of the findings and the sentence as a result of it coram non judice and without lawful authority.

4. The learned judge examined the various provisions of the Army Act and the amendments made therein and recorded the following conclusion:‑‑

5. "The cumulative effect of the provisions of section 90 as amended and those of section 2(1)(d) would be that the prohibition of second trial, as contained in section 90 ibid, is not available to the petitioner and his case is covered By the proviso added to section 90 by Ordinance XXXIX of 1983. Needless to add that the first trial of the petitioner before the Field General Court Martial started after the coming into force of Ordinance XXXIX of 1983. Similarly, the Field General Court Martial headed by Lt.‑Col. Muhammad Daud has been convened and constituted after the amendment in section 90 of the Pakistan Army Act, which took place in 1983. In these circumstances, there is no substance in the contention that on account of finding of sentence of the first Field General Court Martial having not been confirmed, the petitioner cannot be subjected to the second trial. "

6. It was further held that no particular or specific mala fide was alleged against any one, and such a petition was barred by Article 199(3) of the Constitution. It was, therefore, dismissed in limine.

7. An Intra‑Court Appeal was then filed but it was held to be incompetent because of the fact that the law did provide a revision. The finding recorded by the Appeal Bench was in the following words: ‑‑

8. "The fact that the law applicable to the proceedings out of which constitutional petition arises provides at least one revision is good enough to render the ICA incompetent. Section 126, as noted hereinabove, does provide at least one revision against the original order. Present Intra‑Court Appeal is, therefore, not maintainable."

9. Sh. Zia Ullah, Advocate, the learned counsel for the petitioner, has on the strength of comparable provision contained in para. 7 of C.M.L.A. Order No.4 of 1977 as interpreted in Muhammad Saleem Mirza v. the Presiding Officer, Summary Military Court No.2 Lahore and another (P L D 1979 Lahore 293) contended that the revision provided in the Army Act could not be considered to be a bar to the Intra‑Court Appeal. The High Court, according to the learned counsel, was in error to not entertaining the Intra‑Court Appeal. In the alternative, the learned counsel for the petitioner has contended that leave should be granted to examine the decision of the learned Judge in Chamber dated 11‑4‑1987. The appeal is shown to be barred by 243 days against that order. The learned counsel, however, suggests that as he had been bona fide prosecuting his remedy in the High Court by means of Intra‑Court Appeal, he should be treated as in time after excluding the time taken for prosecuting that remedy.

10. The bar to an Intra‑Court Appeal against the decision of a learned Judge in Chamber is contained in section 3, subsection (2) proviso of the Law Reforms Ordinance, 1972; the relevant portion of which is reproduced hereunder:‑

3. (1) ......................................................

(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub‑paragraph (i) of paragraph (b) of that clause:

11. Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."

12. In the Pakistan Army Act under which the trial of the petitioner was held, the following two provisions, one contained in section 126 and the other in section 131, exist, which are relevant to the discussion: ‑

13. "126. Revision of finding and sentence.‑‑(1) Any finding or sentence a court‑martial‑w is requires confirmation may be once revised by order of the confirming officer, and, on such revision, the Court, if so directed by him, may take additional evidence.

(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent.

(3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, if a general court‑martial, it still consists of five officers or, if a field general or district court‑martial, of three officers.

131. Remedy against findi ng and sentence of court‑martial.‑‑(1) Any person subject, to this Act who considers himself‑aggrieved by the finding or sentence of a general, field general or district court‑martial may submit a petitioner, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation to the Federal Government, or the Commander‑in‑Chief or to any prescribed officer, provided that such prescribed officer is higher in rank than the one who confirmed such finding or sentence.

(2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary court‑martial may submit a petition to the Federal Government or the Commander‑in‑Chief, or any officer empowered to act under section 128. "

14. There is under the law applicable a Revision provided for in the Pakistan Army Act. Further there is a remedy for any one considering himself aggrieved by the finding or sentence to submit a petition at the stage of Revision or even afterwards. Apparently in view of these provisions, the proviso to section 3(2) of the Law Reforms Ordinance gets attracted. The decision of the Lahore High Court in Muhammad Saleem Mirza's case, proceeds to interpret para. 7 of M.L.0.4, Clause (d) which provided "the proceedings of a Summary Military Court, shall, without delay, be forwarded to the Martial Law Administrator of the Zone concerned, for review" and recorded the following conclusion:‑

15. "If a statute makes provision for appeal, revision or review, the aggrieved party may invoke the review jurisdiction of the appropriate Court, Tribunal or authority for the required relief. In other words, the aggrieved party may take the initiative to invoke the appellate/ revisional/review jurisdiction of the appropriate Court, Tribunal or authority and will have the right of being heard, unless it is expressly or by necessary intendment taken away. We are, therefore, clearly of the view that the words "appeal" or "revision" or "review" used in proviso to section 3(2) of the Law Reforms Ordinance is a statutory remedy available to the aggrieved party, which not only confers certain powers upon such Court, Tribunal etc. but also provides a remedy and in some cases a right to the aggrieved party. The words "appeal", "revision", "review" have been used in this proviso in the same remedial sense and with the same intention and it is for that reason that in such a situation the right of Intra‑Court Appeal has been taken away."

16. Applying the standard adopted by the Lahore High Court in the above case of Muhammad Saleem Mirza v . The Presiding Officer Summary Military Court No.2, Lahore and another P L D 1979 Lah. 293, the s Intra‑Court Appeal on the facts of the case would be barred because here a right of aggrieved person has been recognized and provided for at the stage of Revision and it remains available notwithstanding the decision in Revision. The bar contained in proviso under section 3(2) of the Law Reforms Ordinance has been authoritatively interpreted by this Court in Mst.Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 S C 344 in the following words:‑

17. "The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge an the constitutional jurisdiction to s Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which nay be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not."

18. It is clear to us that an Intra‑Court Appeal was not competent and was rightly held by the impugned judgment of the High Court to be so. As regards the judgment of the learned Judge in Chamber dated 11th of April, 1987, the appeal is shown to be barred by 243 days. The explanation given by the petitioner for explaining this delay does not hold good, in view of the authoritative pronouncements of this Court available long before such a course was adopted by the petitioner and recourse was taken to Intra‑Court Appeal where none was competent. As the petitioner is unable to overcome this bar of limitation, we are not inclined to go into the merits of the contention raised by him with regard to the judgment passed by the learned Judge in Chamber relating to facts and the law arising in the petition. Leave to appeal is refused on the ground that the petition is hopelessly barred by limitation.

19. M. Y. H./S‑129/S Petition dismissed.