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1996 P L C (C.S.) 1183

 

[Supreme Court of Pakistan]

 

Present: Ajmal Mian, Saleem Akhtar and Abdul Hafeez Memon, JJ

 

FORCE COMMANDER, AIRPORT SECURITY FORCE, KARACHI and others

 

Versus

 

Haji MUHAMMAD RASHID

 

Civil Appeals Nos. 392 and 393 of 1994, decided on 23rd June, 1996.

 

(On appeal from the judgments dated 7‑12‑1993 of the High Court of Sindh, Karachi, passed in Constitution Petitions Nos.D‑1502 of 1993 and D‑976 of 1993 respectively).

Farooq H. Naik, Deputy Attorney‑General alongwith S.M. Abbas, Advocate‑on‑Record for Appellants

 

Miss Sofia Saeed, Advocate (appeared with the permission of the Court) alongwith Faizanul Haque, Advocate‑on‑Record for Respondents.

 

Date of hearing: 14th May, 1996.

 

JUDGMENT

 

AJMAL MIAN, J. ‑‑‑By this common judgment we intend to dispose of the above two appeals with the leave of this Court as they involve common questions of facts and law and are directed against the judgments both dated 7-12‑1993 passed by a Division Bench of the High Court of Sindh in Constitution Petitions Nos.D‑1502 of 1993 and D‑976 of 1993, filed by the respondents, respectively, against the punishments awarded by the Summary Court Martial, allowing the same by setting aside the above punishments.

 

2. The brief facts of Civil Appeal No.392 of 1994 are that Abdul Majeed was appointed as Security Guard‑I in the Airports Security Force hereinafter referred to as the A.S.F., established under the Airports Security Force Act, 1975 (LXXVII of 1975). hereinafter referred to as the Act. He was promoted as Sub‑Inspector and continued to work as such on 25‑5‑1993. He was charge -sheeted by appellant No.2, wherein it was alleged that on 24‑5‑1993, while he was on duty at the Quaid‑e‑Azam International Airport, Karachi, at the International Departure Search Counter from 14‑00 hours to 20‑00 hours as machine operator, at about 7‑50 p.m. he extorted Rs.500 as illegal gratification from a passenger, namely, Akram, who was scheduled to fly for Jeddah by PIA Flight No.PK‑7372. It seems that the above matter came to the notice of the high‑ups and, therefore, on the same day i.e. 25‑5‑1993, Abdul Majeed was produced before the Summary Court Martial. The Presiding Officer recorded the statements of witnesses and he was punished by an order dated 26‑5‑1993 as under:‑‑

 

“(A) To be reduced to the rank of guard;

 

(B) To be dismissed from the service;

 

(C) To suffer R.I. for one year in civil jail.”

 

Against the above punishment, Abdul Majeed’s brother, Haji Muhammad Rashid, filed aforesaid Constitution Petition No.D‑1502 of 1993, which was allowed by the impugned judgment as follows:‑‑

 

“In the present petition the petitioner’s brother Abdul Majeed in view of the aforesaid decision of the Honourable Supreme Court is deemed to be a civil servant and he is not governed by the Army Act and the rules framed thereunder. This being the position, respondent No.2 had no authority to prosecute the petitioner’s brother Abdul Majeed under the Pakistan Army Act, 1952. Therefore, the entire proceedings and the consequent action taken is without jurisdiction and coram non judice. Accordingly, we set aside the impugned order dated 26‑5‑1993 and hold that the petitioner’s brother continues to be in the service of the respondent No.2.

 

The petition stands disposed of and in the circumstances the parties are directed to bear their own costs.”

 

3. Adverting to the facts of Civil Appeal No.393 of 1994, it may be stated that Muhammad Abdul Rehman was appointed on 6‑11‑1986 as Security Guard‑I in the Airport Security Force. On 29‑3‑1993, while he was on duty at Terminal No.24, International Departure of Quaid‑e‑Azam International Airport, one foreign national, namely, Mr. Lalit Mohan was proceeding to Khatmandu by Flight No.PK‑268. Muhammad Abdul Rehman searched the said passenger and he was allowed to go to the aircraft. He found a gold bar at the place where the baggage of above passenger had been searched. He kept the same with him but, in the meanwhile, said passenger returned and the above gold bar was given back to him. After the departure of the above flight, the Assistant Security Officer came to Muhammad Abdul Rehman and enquired about the aforesaid event and took him into custody. Next day i.e. on 30‑3‑1993 he was produced before the Summary Court Martial for trial and a charge‑sheet was served on him for the alleged offence of stealing gold bar from the baggage of the above foreign national. The statements of witnesses were recorded. By an order dated 1‑4‑1993, he was awarded the following punishments:

 

“(A) To suffer R.I. for one year in Civil Jail.

 

(B) To be dismissed from the service.”

 

His father, Abdus Sattar, filed the aforementioned Constitution Petition No.D‑976 of 1993, which was allowed as under:‑‑

 

“In the petitioner in hand, the petitioner’s son Muhammad Abdul Rehman will be deemed to be a civil servant in view of the aforesaid decision of the Supreme Court and he cannot be governed by the Army Act and the rules framed thereunder. This being the position, there was no authority vested in the respondent to prosecute Muhammad Abdul Rehman under the Pakistan Army Act, 1952. As such the entire proceedings and the consequent action taken is without jurisdiction and coram non judice.

 

Accordingly, we set aside the impugned order dated 1‑4‑1993 and hold that the petitioner’s son continues to be in the service of the respondent.

 

This petition stands disposed of and in the circumstances, the parties are directed to bear their own costs.”

 

4. Against the above judgments of the High Court, the present official appellants filed two petitions for leave to appeal, which were granted by a common order dated 22‑3‑1994 for considering the following two questions:‑‑

 

“(1) Whether the ratio of the judgment in the case of Faseehuddin v. Khawar Latif Butt and others (supra) is applicable to the cases in hand?

 

(2) Whether the Tribunal can set aside punishment of sentence of imprisonment awarded under the Army Act and the rules framed thereunder?”

 

5. In support of the above appeals Mr. Farooq H. Naik, learned Deputy Attorney‑General, has vehemently contended that since the employees of the A.S.F. are subject to the application of Pakistan Army Act (XXXI of 1952), hereinafter referred to as the Army Act, and the rules framed thereunder, the trial by the Summary Court Martial of the two accused employees and the punishments awarded to them were in consonance with law as they were guilty of criminal acts while discharging their duties.

 

On the other hand, Miss Sofia Saeed, Advocate, who was granted permission to appear for the private respondents as she had also appeared in the High Court on their behalf, has vehemently urged that since the two accused employees involved in the above two cases were civil servants as per judgment of this Court in the case of Faseehuddin v. Khawar Latif Butt and others (1993 SCMR 1), they could not have been proceeded with under the Army Act and/or me rules framed thereunder as held by this Court in the above report, and, therefore, the High Court was justified in following the aforementioned judgment of this Court and granting the afore‑quoted reliefs to the accused employees.

 

6. In order to appreciate the above contentions, it may be pertinent to examine the provisions of the Act and the amendments made therein and of the Army Act and the rules framed thereunder.

 

It may be observed that the Act was assented by the President on 13‑10‑1975 and was gazetted on 18‑12‑1975 in the Gazette of Pakistan Extraordinary. The Preamble of the Act gives the object of the same by stating that it is expedient to provide for the constitution and regulation of the A.S.F. for ensuring security of all aerodromes, airports, aircrafts, civil aviation installations and for the maintenance of law and order therein and for the matters connected therewith or ancillary thereto.

 

Whereas section 2 of the Act defines the various terms. Section 3 empowers the Federal Government to constitute and maintain Airports Security Force for performing the functions mentioned in clauses (a) to (h) of subsection (1), which reads as follows:‑

 

“(a) ensuring security of all airports, aerodromes, aircraft and civil aviation installations and for safeguarding civil aviation against acts of unlawful interference or threats of such interference;

 

(b) ensuring security of all structures, material and installations belonging to operations and other Government or non‑Government organisations within the limits of airports and aerodromes;

 

(c) operating and maintaining the airports fire services;

 

(d) protecting the airport and its vicinity from bird hazard and pollution;

 

(e) ensuring the proper conduct of persons at airports and aerodromes as laid down in the Aircraft Rules, 1937, including control of surface vehicles and drivers within the limits of airports and aerodromes;

 

(f) ensuring security of aircraft passengers baggage, cargo and mail within the limits of airports and aerodromes;

 

(g) general maintenance of law and order within the limits of airports and aerodromes in conjunction with the police and taking cognizance of all offences committed at the airports and aerodromes under any law for the time being in force; and

 

(h) such other functions as the Federal Government may, by notification in the official Gazette, require the Force to perform. “

 

Whereas section 4 of the Act provides the composition of the A.S.F. Subsection (1) of section 5 provides as to the mode of administration by providing that the administration of A.S.F. shall vest in the Force Commander, who shall administer it in accordance with the provisions of the Act, rules and such orders and instructions as may be made or issued by the Federal Government from time to time. Subsection (2) thereof lays down that the Force Commander shall exercise his power and perform his functions under the general supervision of the Director‑General.

 

It may be pertinent to point out that section 6 deals with the powers and duties of the officers and members of A.S.F. which in fact are the reproduction of the objects contained in subsection (1) of section 3 already quoted hereinabove. Subsection (2) of the above section provides that an officer for the purposes of the Act shall exercise within the areas in which the Act applies all powers conferred on an Officer Incharge of a Police Station under the Police Act, 1861 (V of 1861) and the Code of Criminal Procedure, 1898).

 

It may further be stated that section 7 of the Act provides for liabilities of officers and members of A.S.F. as follows:‑‑

 

“7. Liabilities of officers and members.‑‑(1) It shall be the duty of every officer and member promptly to obey and execute all orders and instructions issued to him by any competent Authority.

 

(2) Every officer and member shall be liable to serve wherever he is required to serve by the competent Authority.

 

(3) Every officer or member who is guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by a competent Authority, or who withdraws from his duties without permission, or without having given provisions notice of two months, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of such leave, or who engages without authority in any employment other than his duty under this Act, or who is guilty of cowardice, or who offers any unwarrantable personal violence to any person in his custody, shall be liable to be proceeded against departmentally and to be awarded such punishment, including imprisonment for a term which may extend to six months and fine which may extend to the amount of his pay for three months, as may be prescribed by rules.”

 

It may also be mentioned that section 9 of the Act empowers the Federal Government to delegate all or any of its power under the Act except those under section 11 to the Director‑General.

 

Whereas section 10 envisages delegation of powers by the Director General of A.S.F.

 

Section 11 empowers the Federal Government by a notification in the official Gazette to make rules for the following purposes:‑‑

 

“(a) regulating the functions and powers of the officers;

 

(b) regulating the classes and grades of, and the remuneration and rewards to be paid to, the officers and members of the Force and their conditions of service;

 

(c) prescribing and regulating the award of departmental punishments;

 

(d) appointing the place where a person punished with imprisonment under section 7 may be kept in custody; and

 

(e) generally for the purpose of carrying into effect the provisions of this Act. “

 

Whereas section 12 empowers the Director‑General to make regulations through notifications in the official Gazette consistent with the Act and the rules for carrying out the purposes of the Act.

 

It will not be out of context to point out that the First Schedule provides the pro forma for the declaration which is to be made on oath by the personnel of A.S.F. at the time of joining the service, which reads as under:‑‑

 

“FIRST SCHEDULE

 

(See section 2 (k) and (1)

 

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