Ex. Lt.-Col. ANWAR AZIZ (PA-7122) vs FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 2 others

ABDUL HAMEED DOGAR, J.--Through this petition, petitioner Ex.Lt.-Col. Anwar Aziz seeks leave to appeal against the judgment dated 8-6-1999 passed by learned Lahore High Court, Rawalpindi Bench, whereby his Writ Petition No,1150 of 1995 was dismissed.

2. Briefly, the facts leading to the filing of this petition are that the petitioner while serving as Lieutenant-Colonel in the Pakistan Army stood convicted on charge Nos.10th, 12th and 14th out of 14 charges and was dismissed from service and was also sentenced to the fine of Rs,3,00,000 by the Field General Court Martial at Rawalpindi. The appeal preferred by the petitioner under section 133(B) of the Pakistan Army Act, 1952 (hereinafter to be referred as the "Act") was rejected on 23-4- 1995. Thereafter the petitioner invoked the Constitutional jurisdiction of the High Court by preferring Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the "Constitution") which was also dismissed by the learned Lahore High Court, Rawalpindi Bench vide judgment dated 8-6-1999 being not maintainable and without jurisdiction.

3. We have heard Mr. Muhammad Akram, learned A.S.C. On behalf of the petitioner and as well as Mr. Mansoor Ahmad, Deputy Attorney-General on behalf of respondents Nos.2 and 3 and have gone through the record and proceedings of the matter.

4. The learned counsel for the petitioner argued that the High Court has erred in holding that the bar under sub-Article (3) of Article 199 of the Constitution is absolute and is not amenable to judicial review even in a case of no evidence. According to him the case of no evidence can be equated with the case of being without 'jurisdiction and the principle that the order being mala fide, without jurisdiction or coram non judice would be fully applicable to the case of petitioner. He further emphasised that the case of the petitioner being the case of public importance, his Fundamental Right guaranteed by the Constitution has been violated thus can be examined by this Court under Article 184(3) of the Constitution. In support, he referred the case of Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 and stated that the referred case is identical on all four corners with the instant case.

5. On the other side, the learned Deputy Attorney-General vehemently controverted and argued that the case of petitioner does not involve the question of public importance as such is not amenable to the jurisdiction of this Court under Article 184(3) of the Constitution. According to him, the High Court has rightly held that the Field General Court Martial was competent to try the petitioner and the question of sufficiency or insufficiency of the evidence could not attract the judicial review. According to him, the petitioner has not only been convicted by the trial Court but his conviction and sentence have been upheld by the Appellate Court exactly in accordance with the Act. He even fully adjudicated his case before all such forums without agitating their jurisdiction at any stage. In addition he contended that the case of the petitioner does not involve any question of public importance, therefore, the instant petition is not maintainable.

6. As per record it is noticed that petitioner had candidly admitted the jurisdiction of Field General Court Martial, the trial Court, and that of the Court of Appeals, the Appellate Court. Admittedly he did not challenge the jurisdiction of the Army Courts at any stage. He voluntarily surrendered to their jurisdiction and remained silent and contested the proceedings fully. It was after exhausing the remedies available to him according to the Act, he resorted to the Constitutional jurisdiction of the High Court without any legal justification. The learned counsel of the petitioner frankly conceded that during the hearing of the petition before the High Court the petitioner had accepted the jurisdiction of Army Courts and failed to convince that the conviction was either mala fide or coram non judice or without jurisdiction. The petitioner being member of Armed Forces was thus rightly tried, convicted and sentenced by the properly constituted forums under the Act, as such his case does not attract the question of public importance.

7. The petition before 'this Court has been filed under Article 185(3) of the Constitution which in our view is not competent and maintainable as the petition under this provision of law attracts the appellate jurisdiction of this Court. Even if it may be presumed that the petitioner has invoked the Constitutional jurisdiction under Article 184(3) of the Constitution his case would not attract the question of public importance with reference to the infringement of his Fundamental Rights conferred by the Constitution. This Court can exercise its powers to issue the writ only when element of "public importance" is involved. It also provides abundant scope for the enforcement of Fundamental Rights of an individual or a class of persons in the event of their violation.

8. This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide. The matters relating to the Members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as Member of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution. Article 8(3) of the Constitution also envisages that the provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them.

According to section 133(3)(B) of the Act the decision of the Court of appeal is final and cannot be called in question before any Court or Authority whatsoever.

9. By now it is well-settled principle of law that the High Court under Article 199(3) of the Constitution can examine the cases falling within three categories, namely, where impugned order/judgment, is mala fide, or without jurisdiction or coram non judice.

10. At the same time 'our Constitution provides protections to the citizens against their illegal treatment in the matter of life, liberty and body. In this context the reference is made to its Articles 4(1), (2)(a), 9 and 184(3) of the Constitution which are read as under:-- "4. Right of individuals to be dealt with in accordance with law, etc.--(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

9. Security of person.--No person shall be deprived of life or liberty save in accordance with law." Article 184(3) of the Constitution is as follows:-- "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the same Article."

11. This Court in the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, has observed at page 492(J) and (K) has held that in order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence. In all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance. Viewing the case of the petitioner in the above perspective, none of the elements are attracted in his case. Neither his individual freedom, liberty nor any of the Fundamental Rights was cherished which should have attracted Constitutional safeguards and guarantees. On the contrary he was validly tried by the competent Court of law, thus none of his fundamental rights were infringed.

12. Such view has been taken by this Court in the case of Momeen Khan and another v. Supreme Appellate Court, Peshawar and 5 others PLD 1995 SC 509 whereby it has been held that the judgment rendered by Supreme Court, is final in nature and is not open to challenge in any other Court being barred by law. The case of Mrs. Shahida Zaheer Abbasi (supra) is also of no help to the case of the petitioner as it was unanimously observed in paragraph 24 of the judgment that the element of mala fide on the part of respondents in these cases was completely lacking. In the said case, it was also held by majority view that in the case in hand, no question of public importance relating to enforcement of any of the Fundamental Rights conferred by Articles 9, 10 and 14 of the Constitution was involved and thus the petition was dismissed.

Resultantly, the petition being devoid of force is dismissed and leave to appeal is refused.