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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)

 

FORM OF AFFIRMATION

 

I .. solemnly affirm in the presence of Almighty Allah that I will bear true faith and allegiance to Pakistan and that I will as in duty bound, honestly and faithfully serve in the Airports Security Force and go wherever I may be ordered by air, land or sea, and that I will observe and obey all commands of my officer set over me even to the peril of my life.”

 

7. It may be stated that pursuant to the power conferred by section 11 of the Act, the Federal Government framed Airports Security Force (Discipline) Rules, 1977, through a notification gazetted on 29‑10‑1977 for providing the definitions of the various terms including the definition of Summary Court by providing that it means a Court consisting of a Force Commander or a Deputy Director or any other officer not below the rank of an Assistant Direct (empowered by the Federal Government to exercise the functions of a Court under the rules. Whereas Rule 3 provides the punishments as follows:

 

“(a) stoppage of increment for specified period;

(b) stoppage of promotion for a period not exceeding one year;

 

(c) in case of officers, reprimand of any description;

 

(d) extra guard of piquets duty;

 

(e) in case of members, restriction of movement to lines for a period no exceeding twenty‑eight days with or without punishment of drill;

 

(f) reduction in rank or grade, or both;

 

(g) compulsory retirement;

 

(h) removal from service;

 

(i) dismissal from service;

 

(j) fine; and.

 

(k) sentence of imprisonment for a term which may extend to six months.

 

(2) Removal from service does not, but dismissal from service does, disqualify for future employment.

 

(3) In this rule, removal or dismissal from service does not include discharge of a person‑‑ ,

 

(a) appointed on probation, during the period of probation, or in accordance with the probation or training rules applicable to him;

 

(b) appointed otherwise than under a contract to hold a temporary appointment, on the expiration of the period of appointment; or

 

(c) engaged under a contract, in accordance with the terms of the contract. “

 

Rules relating to suspension, preliminary enquiry, investigation of charge, charge‑sheets procedure for trial by the Summary Court, procedure for departmental proceedings, the accused right to be assisted, confirmation of punishment, place of custody, right for appeal and calling of record by the Appellate Authority were also provided for in the above rules.

 

8. It may further be stated that the Federal Government also framed Airports Security Force (Service) Rules, 1978, through a Notification dated 20‑4‑1978 gazetted on 27‑4‑1978 providing rules for the various matters, namely, headquarters relating to the Force, general supervision of the Director‑General, duties of the Force Commanders, duties of the officers and members, duties of Assistant Directors as the Chief Security Officers, composition of A.S.F., authority to make appointments, method of appointments, disqualification for being appointed in the A.S.F., seniority, confirmation, age of retirement, confidential reports, validating the appointments made prior to the framing of the above rules, resignation, allowance, leave, pension, maintenance of accounts, drawing and disbursing officers, imprest accounts and audit.

 

9. It may also be pointed out that Ordinance (XXXV of 1984), namely, Airports Security Force (Amendment) Ordinance, 1984, gazetted on 7‑8‑1984 had made substantial amendments in the Act inasmuch as for the words “Director‑General” wherever occurring ‘ in the Act except in clause (g) of section 2, subsection (2) of section 5 and section 9 thereof, the words “Force Commander” were substituted. In clause (e) of section 2 for the words “Civil Aviation Department”, the word “Force” was substituted. Clauses (g) and (j) of section 2 quoted hereinabove were omitted. Whereas in clause (a) of subsection (1) of section 3, the word “installations” was substituted by the words “within the limits of airports and aerodromes”. Clauses (c) and (d) of above subsection (1) of section 3 were omitted. There were some other minor amendments in the clauses of section 3 which need not be referred to.

 

It may further be mentioned that in subsection (2) of section 5 of the Act, in place of the words “Director‑General” the words “and directions of the Federal Government” were substituted. Whereas in clause (a) of subsection (1) of section 6, the word “installations” was substituted for the words “within the limits of airports and aerodromes”. Furthermore, clause (c) of subsection (1) of section 6 was substituted as under:‑‑

 

“(c) take effective measures for preventing hijacking, sabotage, placement of car bombs, letter bombs and dangerous articles and carriage of arms and ammunitions into the restricted areas of the airports, aerodromes and aircraft except as authorised by him, and shall, as soon as he detects any contraband on the person or in the baggage of any person checked by him, notify it to the customs staff available at the airport or aerodrome for appropriate action under the Customs Act, 1969 (IV of 1969);”, and

 

in clause (f), after the word “Commander”, the words “or an officer authorised by him” shall be inserted.

 

In addition to that, subsection (I‑A) was newly incorporated as under:‑‑

 

“(1‑A) The Force Commander may, with the previous approval of the Federal Government, call for military assistance in connection with post‑landing and anti‑kicking operations at an airport or aerodrome; and when he does so, all officers and members and all civil agencies operating at the airport or aerodrome shall function in accordance with the directions of the military authority rendering such assistance.”

 

In addition to the above amendments, the following new section new section were added:

 

7-A. Officers and members to be subject to the Pakistan Army Act, 1952.‑‑(1) Every Officer and member of the Force shall, unless he is ‘ already so subject, be subject to the Pakistan Army Act, 1952 (XXXI of 1952), hereafter in this Chapter referred to as the Act.

 

(2) The Force Commander shall, in respect of all officers and members of the Force, have all the powers conferred by or under the Act on an officer empowered to convene a general Court martial.

 

(3) Subject to subsection (2), the Federal Government may, by general or special order, direct by what authority any jurisdiction, powers or duties incidental to the operation of the provisions of the Act shall be exercised or performed in respect of the Force.

 

7‑B. Consequence of sentence of imprisonment.‑‑An officer or member of the Force who is sentenced to imprisonment for a term which is not less than ninety days shall be deemed to have been dismissed from the Force.

 

7‑C. Suspension.‑‑Any officer shall be competent to suspend in the prescribed manner a member of the Force working under him for any misconduct, remissness or negligence in the discharge of his duties.

 

7‑D. Place of imprisonment.‑‑If a member of the Force sentenced under the Act to imprisonment for a term shorter than ninety days is also dismissed from service, he shall be imprisoned in the nearest prison or such other prison as the Federal Government may, by general or special order, direct; but if he is not so dismissed he may be confined in a quarter guard or such other place as the Force Commander may consider suitable.

 

7‑E. Capture of deserters.‑‑(1) Whenever any person subject to the Act deserts, the Chief Security Officer shall give written information of the desertion to such civil authorities as in his opinion may be able to afford assistance towards the capture of the deserter and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate, and shall deliver the deserter, when apprehended, into the custody of the Force.

 

(2) Any police officer may arrest without warrant any person whom he reasonably believes to be subject to the Act and a deserter or absentee without leave and bring him without delay before the nearest Magistrate to be dealt with according to law.

 

7‑F. Appeal and revision.‑‑(1) In all cases decided by the Deputy Director, a Chief Security officer or any other officer, a person aggrieved may, within thirty days of the order, appeal to the officer higher than the one awarding the punishment.

 

(2) A person aggrieved by an order of the Force Commander awarding any punishment may, within thirty days of the order, apply to the Federal Government for revision.

 

7‑G. A ointment of officers and other members of the Force.‑‑(1) The Federal Government may, by notification in the official Gazette, appoint a Deputy Director and such number of Assistant Directors, Chief. Security Officers, Security Officers and Assistant Security Officers as it may think fit.

 

(2) The Force Commander may appoint, within the cadre strength sanctioned by the Federal Government, such number of Inspectors, Sub‑Inspectors, Assistant Sub‑Inspectors, Selection Grade Security Guards and Security Guards as he may consider necessary for the efficient performance of the functions of the Force.

 

(3) The rank structure of the officers and other members of the Force vis‑a vis the Pakistan Army shall be such as may be prescribed by rules.”

 

10. After the above extensive amendments in the Act, the Federal Government through the Ministry of Defence issued SRO No.1021(1)/84, dated 27‑11‑1984 in exercise of the powers conferred by subsection (3) of above newly‑enacted section 7‑A directing that all such jurisdiction, powers and duties conferred or imposed upon the Commanding Officer of a unit of Pakistan Army as are incidental to the operation of the provisions of the Army Act, shall in respect of the members of A.S.F. under his command be exercised and performed by the Chief Security Officer at any airport specified by the Force Commander.

 

On the same day, another S.R.O., namely, SRO No. 1022(1)/84 was issued by the Federal Government in exercise of the powers conferred by subsection (3) of aforesaid newly enacted section 7‑G of the Act providing Airports Security Force (Rank Structure) Rules, 1984, by providing in Rule 2 that the rank, structure of the officers and other members of the A.S.F. holding in the Force an appointment mentioned in the first column of the Schedule thereto annexed vis‑a‑vis the rank in the Pakistan Army shall be mentioned in the corresponding entry in the second column. The Schedule provided as under:‑‑

 

1 2.

Force Commander Brigadier

Deputy Director Lieutenant‑Colonel.

Assistant Director, Chief Security Major

Officer

Security Officer ‘ Captain

Assistant Security Officer Junior Commissioned Officer.

Inspector, Sub‑Inspector, Assistant

Sub‑Inspector Non‑Commissioned Officer.

Security Guard (Selection Grade) Sepoy”

Security Guard

 

It may also be pointed out that another S.R.O., namely, SRO No.147(1)I87, dated 16‑2‑1987 was issued by the Federal Government in exercise of the power conferred by subsection (3) of aforementioned newly enacted section 7‑A directing that all such jurisdiction, powers and duties conferred or imposed upon the Judge Advocate‑General of Pakistan Army as are incidental to the operation of the provisions of the Army Act, shall in respect of the members of A.S.F. be exercised and performed by the Assistant Director (Legal), A.S.F.

 

After that, another amendment in the Act having bearing to the controversy in issue was made by Ordinance No.XLIV of 1993 dated 27‑11‑1993 gazetted on the same date, whereby following subsection (4) to section 7‑A was added:‑‑

 

“(4) Notwithstanding anything contained in any other law for the time being in force, except the authorities specified in subsections (1) and (2)’ of section 7‑F, no other authority, tribunal or Court shall have jurisdiction to vary, modify, alter, annul, set aside, revise or review any order passed by any officer of the Force, authorised under the Pakistan Army Act, 1952 (XXXI of 1952). “

 

11. We may now revert to the Army Act, which was enacted in May, 1952, but it came into force on first day of April, 1955, upon issuance of notification by the Federal Government in terms of subsection (2) of section 1. The Preamble of the same gives its object by providing that “whereas it is expedient to consolidate and amend the law relating to the Pakistan Army”.

 

It may be observed that section 2 thereof gives the scope of its application by providing to whom it will be applicable. It may be advantageous to reproduce above section, which reads as under:‑‑

 

“2. Persons subject to the Act.‑‑‑(1) The following persons shall be subject to this Act, namely:‑‑

 

(a) Officers, junior commissioned officers and warrant officers of the Pakistan Army;

 

(b) persons enrolled under the Army Act, 1911 (VIII of 1911), before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;

 

(bb) persons subject to the Pakistan Navy Ordinance, 1961 (XXXV of 1961) or the Pakistan Air Force Act, 1953 (VI of 1953) when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct;

 

(c) persons not otherwise subject to this Act, who on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;

 

(d) persons not otherwise subject to this Act who are accused of‑‑

 

(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or

 

(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1932; or

 

(iii) an offence punishable under sections 123, 123‑A, 124‑A, 143, 144, 147, 148, 152, 153‑A; 188, 193, 224, 225, 283, 302, 304, 307, 325, 326, 332, 342, 353, 364, 366, 376, 392, 395, 396, 397, 431, 435 or 536 of the Pakistan Penal Code (Act XLV of 1860), or the Pakistan Arms Ordinance, 1965 (W.P. Ordinance, XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or any rule made thereunder or the High Treason (Punishment) Act, 1973 (LXVIII of 1973), or the Prevention of Anti‑National Activities Act, 1974 (VII of 1974), or an attempt or conspiracy to commit, or an abetment of, any of the said offences;

 

(dd) persons not otherwise subject to this Act who are accused of having done any act with intent to, impair the efficiency or impede the working of, or to cause damage to,‑‑

 

(i) any building, vehicle, machinery apparatus or other property used, or intended to be used, for the purposes of the State or any local authority;

 

(ii) any railway, as defined in the Railways Act, 1890 (IX of 1890), road, canal, bridge culverts, tramway, road, canal, bridge, culvert, causeway, port dockyard, lighthouse, aerodrome, or any telegraph, telegraph line or post, as defined in the Telegraph Act, 1885 (XIII of 1885), or any wireless installation;

 

(iii) any vessel aircraft or rolling stock of a railway or tramway;

 

(iv) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewage works, mine or factory;

 

(v) any prohibited place or protected place that is punishable under any rules made under the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or an attempt or conspiracy to do, or an abetment of any such Act;

 

(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December, 1971.

 

(2) Every person subject to this Act under clause (a) or clause (b) or clause (e) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.

 

(3) Every person subject to this Act under clause (bb) of subsection (1) shall remain so subject during the period of his secondment to the Pakistan Army.”

 

It may be stated that subsection (1) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of persons employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of persons subject to the Army Act under clause (c) of subsection (1) of section 2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in respect of that force and may suspend the operation of any other enactment for the time being applicable to that force.

 

It may also be observed that section 6 empowers the President to apply the provisions of the Army Act to any Land Forces of an Acceding State. Section 7 confers power on the Federal Government to declare any person or class of persons to be on active service. Section 8 defines various terms.

 

It may further be pointed out that Chapter II of the Army Act, which contains section 9 to section 15‑A, deals with the appointments, enrolment and attestation of the Army personnel.

 

It may also be stated that Chapter III, which comprises sections 16 to 20, deals with dismissal or removal by the Federal Government, dismissal or removal by the Chief of Army Staff or other authorised officer, retirement, release or discharge, certification on termination of service, and discharge or dismissal of any person who is subject to the Army Act and who is out of Pakistan.

 

It may further be pointed out that Chapter IV, which consists of section 21 to section 23, provides for summary reduction and punishment otherwise than by sentence and Court‑martial.

 

It may also be stated that Chapter V, which comprises section 24 to section 59, deals with offences.

 

Whereas Chapter VI, which consists of section 60 to section 63, provides for punishments including death, imprisonment for life, rigorous imprisonment for any term not exceeding fourteen years, dismissal from the service, in the case of persons other than officers, junior commissioned officers or warrant officers, detention for a period not exceeding six months, reduction in rank in case of warrant officers, forfeiture of all or any part of service or promotion, forfeiture of service for the purpose of increased pay or any other prescribed purpose in case of officers, junior commissioned officers, warrant officers and non commissioned officers, severe reprimand or reprimand, forfeiture, fines and stoppages of pay mentioned in sub‑clauses (i) to (iv) of clause (f) of section 60, field punishment, special provisions regarding sentences, retention in the ranks of persons convicted on active service.

 

It may further be stated that Chapter VII contains section 64 to section 72, which deals with penal deductions, whereas Chapter VIII, which has section 73 to section 79, provides for arrest and proceedings before trial.

 

It may also be mentioned that Chapter IX, which comprises section 80 to section 118, deals with Courts‑Martial. Section 80 provides four kinds of Courts‑Martial, namely:

 

(1) General Court‑Martial;

 

(2) District Courts‑Martial;

(3) Field General Courts‑Martial; and

 

(4) Summary Courts‑Martial.

 

Section 81 deals with the power to convene General Courts-Martial by providing that a General Court‑Martial may be convened by the Chief of Army Staff or by am‑officer empowered in this behalf by warrant of the Chief of the Army Staff. It may further be observed that section 82 deals with the power to convene District Court‑Martial by providing that a District Court‑Martial may be convened by an authority having power to convene a General Court‑Martial or by an officer empowered in this behalf by a warrant of any such authority. Section 83 empowers the convening authorities that while issuing a warrant under section 81 or section 82, it may provide such restrictions, reservations or conditions as the authority issuing it may think fit. It may further be pointed out that section 84 deals with the power to convene Field General Court‑Martial by providing that the following authorities shall have power to convene a Field General Court‑Martial, namely:‑‑.

 

(a) an officer empowered in this behalf by an order of the Federal Government or of the Chief of the Army Staff;

 

(b) on active service, an officer commanding a portion of the Pakistan Army, not below the rank of Brigadier, if in the opinion of such officer commanding, such opinion to be recorded in, writing and to be conclusive, it is not practicable with due regard to discipline and the exigencies of the service to try the alleged offender by a General Court- Martial.

 

It may also be observed that section 85 provides for composition of General Court‑Martial by laying down that a General Court‑Martial shall consist of not less than five officers each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of Captain. Whereas section 86 deals with the composition of District Court‑Martial by providing that a District Court‑Martial shall consist of not less than three officers each of whom has held a commission for a continuous period of not less than two years.

 

It may farther be stated that section 87 provides for composition of Field General Court‑Martial by laying down that a Field General Court‑Martial shall consist of not less than three officers whereas section 88 gives the composition of Summary Court‑Martial by providing that a Summary Court- Martial may be held by the Commanding Officer of any corps or unit or any detachment thereof.

 

It may be observed that proviso to subsection (1) of the above section lays down that for the trial of an offence mentioned in paragraph (iii) of clause (d) or clause (dd) of subsection (1) of section 2, a Summary Court‑Martial may be held by an officer not below the rank of Captain empowered in this behalf by an officer holding warrant ‘ B’ within the area of his command. Whereas subsection (2) thereof provides that at every summary Court‑Martial the officer holding the trial shall alone constitute the Court except in the case of an offence referred to in the above proviso to subsection (1), the proceedings shall be attended throughout by two officers or two junior commissioned officers or one officer and one junior commissioned officer who shall not as such be sworn or affirmed.

 

The first proviso to the above subsection (2) deals with certain offences exclusively triable by a Court‑Martial by laying down that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), Pakistan Army Act, 1952 (XXXI of 1952) or any other law for, the time being in force, the offences mentioned in paragraph (iii) of clause (d) and clause (dd) of subsection (1) of section 2 of the Army Act shall be triable exclusively by a Court‑Martial held thereunder.

 

Whereas the second proviso to the above subsection envisages that an officer authorised in this behalf by the Chief of Army Staff may by an order in writing transfer any such case for trial to any Court or Tribunal of competent jurisdiction. It may further be stated that above second proviso also contains a saving by laying down that nothing in the Army Act shall be deemed to require to transfer to a Court‑Martial held under the Pakistan Army Act, 1952, of any case or proceedings pending immediately before the commencement of Army Act before any Court or Tribunal.

 

Section 89 deals with the dissolution of Court‑Martial. Section 90 provides for prohibition of second trial. Section 91 prescribes the period of limitation for trial.

 

It may be stated that section 92 deals with the liability of offender who ceased to be subject to the Army Act by providing in subsection (1) that where an offence has been committed by any person, while subject to the Army Act and he has ceased to be so subject, he may be taken into and kept in military custody and tried and punished for such offence as if he had continued to be so subject. Whereas subsection (2) thereof lays down that no such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to Army Act. It may further be stated that proviso to above subsection (2) provides that nothing contained in the above subsection shall apply to the trial of any such person for an offence of desertion, fraudulent enrolment or for any of the offences mentioned in section 31 or section 40 or shall affect the jurisdiction of a Criminal Court to try any offence triable by such Court as well as by a Court‑Martial.

 

It may further be mentioned that section 93 deals with the place of trial, whereas section 94 caters for order in case of concurrent jurisdiction of Court‑Martial and Criminal Court by providing that the prescribed officer to decide before which Court the proceedings shall be instituted and if that officer decides that the same shall be instituted before a Court‑Martial, to direct that the accused person shall be detained in military custody.

 

It may also be stated that section 95 empowers the Criminal Court to require delivery of offender, whereas section 96 bars the trial by a Criminal Court subsequent to the trial by a Court‑Martial. It may further be stated that section 96‑A defines Court‑Martial by providing that for the purposes of sections 94 and 96, the term “Court‑Martial” shall include an officer exercising authority under section 23.

 

It may further be stated that section 97 deals with the power of General and Field General Courts‑Martial by laying down that a General or Field General Court‑Martial shall have power to try any person subject to Army Act for any offence made punishable therein and to pass any sentence authorised by this Act.

 

Whereas section 98 provides for the power of District Court‑Martial by laying down that a District Court‑Martial shall have the power to try any person subject to the Army Act, except an officer, junior commissioned officer or warrant officer, for any offence made punishable or pass any sentence other than a sentence of death or imprisonment for life or rigorous imprisonment for a term exceeding two years.

 

It may be observed that section 99 deals with offences triable by Summary Court‑Martial by laying down that a Summary Court‑Martial may try any offence punishable under any of the provisions of this Act. However, proviso to the above section lays down that when there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a District Court‑Martial, or on active service a Field General Court‑Martial, for the trial of ;the alleged offender, an officer holding a Summary Court‑Martial shall not try without such reference any of the following offences, namely:‑‑

 

(a) any offence punishable under sections 24, 31 and 59; or

 

(b) any offence against the officer holding the Court.

 

It may also be pointed out that section 100 deals with the persons triable by Summary Court‑Martial by providing that a Summary Court‑Martial may try any person subject to this Act and under the command of the officer holding the Court, except an officer, junior commissioned officer or warrant officer.

 

Whereas section 101 provides for sentence awardable by Summary Court‑Martial by laying down that a Summary Court‑Martial may pass any sentence, which may be passed under this Act, except a sentence of death or imprisonment for life or of rigorous imprisonment for a term exceeding one year. However, proviso to the above section lays down that if the officer holding the summary Court‑Martial is below the rank of Major, he shall not award rigorous imprisonment for a term exceeding three months.

 

It may be observed that section 102, to section 115 deal with the procedural and allied matters during the trial. Section 117 deals with reference by accused to Government officer in respect of the matters specified therein inter alia for desertion or absence without leave, overstaying leave, or not re joining etc. Section 118 deals with the evidence of previous convictions and general character of the persons under trial.

 

It may be mentioned that Chapter X, which has section 119 to section 133, provides for confirmation and revision of finding and sentences, whereas Chapter XI, which comprises section 134 to section 142, provides fog execution of sentences. It may further be observed that Chapter XII, which consists of section 143 to section 152, deals with pardons, remissions and suspension. Whereas Chapter XIII, which comprises section 153 to section. 166. deals, with property of deceased persons, deserters and lunatics. Chapter XIV; which has section 167 and section 175; provides for miscellaneous privileges, Whereas Chapter XV contains section 176 and section 177, which deals with the rules making power of the Federal Government inter alia in respect of that matters enumerated in subsection (2) of section 176, which are to be published in the official Gazette in view of subsection (3). Section 176‑A empowers the Federal Government to make regulation. Section 176‑B deals with the reference to Commander‑in‑Chief, whereas section 176‑C delegates the powers of Chief of the Army Staff under the Army Act to the Deputy Chief of Army Staff. Section 176‑D provides validation in respect of the matters mentioned therein and section 177 repeals the Acts and Ordinances mentioned therein.

 

It may be mentioned that pursuant to a decision rendered by the Federal Shariat Court the right of an appeal against the award of sentence of death, imprisonment for life, imprisonment exceeding 3 months or dismissal from service, has been provided by incorporating section 133‑B by the Pakistan Army (Amendment) Act, 1992, which received the assent of the President or 22‑12‑1992.

 

12. It may further be pointed out that pursuant to the power contained it section 176 of the Army Act, the Federal Government in supersession of the previous rules of 1911 framed the rules named as Pakistan Army Act Rules, 1954 dealing with the matters including termination of service, punishments, framing of charges, preparation for defence by the accused persons, convening of the General and District Courts‑Martial, procedure relating to the conduct of the proceedings inter alia in the above Courts recording of evidence and other allied matters. The above Rules consist of 187 Rules, hereinafter referred to as the Army Rules. It is not necessary to dilate upon the same exhaustively as for the purpose of the present controversy, Rules 9, 9‑A and 9‑B are relevant, which read as under:‑‑

 

“9. Release or discharge not to be delayed. ‑‑‑Every person enrolled under the Act shall, when entitled under the conditions of his enrolment to be released or discharged, be so released or discharged with all convenient speed.

 

9‑A. Dismissal from the service.‑‑‑An officer may be dismissed from the service by a sentence of a Court‑Martial. He may also be dismissed by administrative action with the prior approval of the President.

 

9‑B. Removal from the service.‑‑‑(1) An officer who, in the opinion of the Federal Government, has by reason of misconduct become unworthy of holding a commission in the Pakistan Army, shall be liable to be removed from the service.

 

(2) The Federal Government may, instead of removing an officer under sub‑rule (1), call upon him to resign his commission, and if he fails to resign within the time specified by the Federal Government, he may be removed from the service.”

 

It may be noticed that Rule 9 deals with the question of release or discharge of a person enrolled under the Army Act in terms of conditions of the enrolment. Whereas Rule 9‑A provides dismissal for two reasons, namely:‑‑

 

(i) on account of a sentence of a Court‑Martial; or

 

(ii) because of administrative action with the prior approval of the President.

 

It may further be pointed out that under sub‑rule (1) of Rule 9‑B, an officer who, in the opinion of the Federal Government has by reason of misconduct become unworthy of holding commission in the Pakistan Army, shall be liable to be removed from the service.

 

Whereas under sub‑rule (2) the Federal Government has been given option that, instead of removing an officer under sub‑rule (1), may call upon the officer to resign his commission, and on his failure to do so, he may be removed.

 

13. We may now revert to the case‑law on the construction of the provisions of the Act and the Rules. The first case on the subject is the case of Fasihuddin v. Khawar Latif Butt and others (supra), in which the facts were that the appellant Fasihuddin joined the A.S.F. in the year 1976 as an Assistant Security Officer (B‑16) and was selected in 1980 by the Federal Public Service Commission for the above post. Then he was again selected by the Federal Public Service Commission in the year 1988 and appointed against the post of Security Officer (B‑17). In his A.C.R. for the year 1989, adverse remarks were recorded, against which he filed a representation/appeal for expunction of the same and then a service appeal before the Federal Service Tribunal. After that he was removed from service by an order dated 31‑7‑1990 under above‑quoted Rule 9‑B. Against this order, he also preferred a service appeal before the Tribunal. However, both the aforementioned appeals were dismissed on the ground that the Tribunal had no jurisdiction for the reason that the appellant was not a civil servant. Reliance was placed by the Tribunal on its earlier judgment dated 5‑3‑1991 rendered in Appeal No. 164(K) of 1988 (Mrs. Nilofar Butt v. Secretary, Aviation Division, Rawalpindi). The above judgment of the Tribunal was impugned in the two appeals with the leave of this Court, which were disposed of by the above common judgment. After reviewing the provisions of the Act and the amendments made therein by the aforesaid Airports Security Force (Amendment) Ordinance, 1984, and the aforementioned rules framed thereunder, namely, Airports Security Force (Discipline) Rules, 1977, inter alia the following conclusions were recorded:‑‑

 

“12. Provisions of amending Ordinance of 1984 referred above, show that by amendment officers and members of the Force have been subjected to Pakistan Army Act to the extent of disciplinary matters and proceedings and Director‑General is replaced by Force Commander who is invested with powers which were previously exercisable by the Director‑General under the provisions of the Act and rules made thereunder. Amendments mentioned above do not say expressly or impliedly that an officer or member of the Force is not a civil servant in consequence of these amendments or forum of Tribunal is not available to pursue remedy for redress of grievance after action is taken under the amended provisions in respect of disciplinary proceedings.

 

17. It is worth noting that after amendment in section 11 of the Airports Security Force Act omitting clauses (c) and (d) providing for punishment in departmental proceedings, Airports Security Force (Discipline) Rules, 1977 have become redundant and in their place some other disciplinary rules have to be framed as contemplated and directed under section 7‑A(3) of Airports Security Force (Amendment) Ordinance, 1984 and until that is done, there is no other way except applying Government Servants (Efficiency and Discipline) Rules, 1973 to the officers and members of Airports Security Force for the reason that their status as civil servants is not altered and remains same in spite of amendments in the said Act brought about by the amending Ordinance of 1984 mentioned above subjecting them to Pakistan Army Act in disciplinary matters.”

 

In consequence of the above conclusions, aforesaid both appeals were allowed, the judgments of the Tribunal were set aside and the cases were remanded to the Tribunal for decision on merits.

 

14. It seems that after the above remand order, the matter was taken up by the Tribunal and the appellant Fasihuddin’s service appeals were allowed and he was reinstated in service through the judgment dated 8‑3‑1993. Against the above judgment of the Tribunal, the official appellant filed Civil Petition No. 190‑K of 1993 (Force Commander, Airports Security Force v. Mr. Fasihuddin Ahmed and others) in this Court for leave to appeal. It was urged that the above‑cited judgment was in fact ex pane as the petitioners were not represented and two important Notifications, namely, SRO No.1021(1)/84 and SRO No.1022(1)/84, both dated 27‑11‑1984, already referred to hereinabove, were not brought to the notice of this Court when the above appeal in the case of Fasihuddin (supra) was argued. However, leave to appeal, was declined by an order dated 10‑8‑1993 inter alia for the following reasons contained in the unreported order:‑‑

 

“10. For the facts and reasons aforementioned, we are of the view that notification, (supra) produced by Mr. Khalid Ishaque are not sufficient to make the intention manifest that officers and members of the Force without reservation have been subject to Army Act and rules framed thereunder and they cease to be civil servants. Resultantly leave is refused and the petition is dismissed.”

 

15. Then we have another judgment of this Court in the case of Syed Turab Arif Fatima v. President of Pakistan and others (PLD 1994 SC 562), in which the facts were that leave to appeal was granted in the two petitions against the judgments of the Federal Service Tribunal dismissing the service appeals of the two A.S.F. personnel in respect of retirement and termination of services on the ground that they were not civil servants, to consider whether the ratio decideni of the case of Fasihuddin (supra) was applicable to the above two petitions. Since after the above decision on 27‑11‑1993 by Airports Security Force (Amendment) Ordinance, 1993, new subsection (4) was added, notices were issued inter alia to the Attorney‑General of Pakistan to assist the Court on the question, as to whether above newly‑added subsection (4) to section 7‑A was retrospective in effect. By the above newly-added subsection (4), the jurisdiction of all the other authorities, Tribunals, Courts was ousted in respect of an order passed by an officer of the A.S. F. authorised under the Army Act.

 

16. The then Attorney‑General of Pakistan, Mr. Fakhruddin G. Ebrahim, had candidly conceded that the above new provision contained in subsection (4) of section 7‑A was not retrospective in effect. Consequently, the aforesaid two appeals were allowed as follows:‑‑

 

“3. We had issued notice to the learned Attorney‑General to assist the Court on the question as to the effect of the above amendment in the Act. In response to the above notice, Mr. Fakhruddin G. Ebrahim, learned Attorney‑General has put in appearance today. His argument was that Legislature was competent to take away the jurisdiction of the Tribunal or of the Court in service matters by the above amendment. However, he candidly conceded that the above amendment cannot operate retrospectively. It is not necessary for us in the present case to examine the vires of the above amendment as it is an admitted position that in the present appeals, the Tribunal declined to exercise jurisdiction when above subsection (4) of section 7‑A of the Act was not on the Statute Book. In this view of the matter, the ratio of the judgment of this Court in the case of Faseehuddin v. Khawar Latif Butt and others (supra) is very much applicable to the above two appeals.”

 

17. In the case of Fasihuddin v. Khawar Latif Butt and others (supra) the appellant was dismissed from service under Rule 7‑B of the Army Rules. This Court inter alia held that notwithstanding the amendments made in the Act by the Amending Ordinance, 1984, his status as a civil servant had not ceased and, therefore, the Tribunal was wrong in dismissing his service appeals against the adverse remarks and removal from service. This view was reiterated in the above unreported order dated 10‑8‑1993 while declining leave to appeal against the Tribunal’s judgment dated 8‑3‑1993 reinstating Fasihuddin after the case was remanded through the above reported judgment.

 

18. In the above third judgment, this Court has held that the aforesaid newly‑added subsection (4) to section 7‑A ousting the jurisdiction of inter alia of the Courts was not retrospective in effect and, therefore, the ratio decidend of the judgment in the case of Fasihuddin (supra) was applicable. We may mention that incidentally to the above judgments/order, two of us, namely, Ajmal Mian and Saleem Akhtar, JJ. were members.

 

19. It may be pertinent to mention that after this Court declined leave on 19‑8‑1993 in above Civil Petition No. 190‑K of 1993, the President in exercise of the powers conferred by sub‑rule (2) of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, designated authorised officer in respect of Government servants specified in Column 2 of the table employed in A.S.F. or serving in a post belonging to a service or cadre, administratively controlled by it as under through SRO No.217(KE)/93, dated 9‑12‑1993 as under:‑‑

 

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