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2009 P L C (C.S.) 974

 

[Peshawar High Court]

 

Before Syed Yahya Zahid Gilani and Shah Jehan Khan, JJ

 

ZULFIQAR ALI

 

Versus

 

ASSISTANT DIRECTOR/CHIEF SECURITY OFFICER, A.S.F., AIRPORT, PESHAWAR and 2 others

 

Writ Petition No.1859 of 2005, decided on 19th January, 2009.

 

Force Commander ASF v. Muhammad Rashid.1996 SCMR 614; Fasihuddin’s case 1993 SCMR 1; Brig. (Rtd.) F.B. Ali v. The State PLD 1975 SC 506 and Ex Lt.-Col. Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549 rel.

 

Abdul Qayyum Sarwar for Petitioner.

 

Salahuddin Khan for Respondents.

 

Date of hearing; 12th November, 2008.

 

 

JUDGMENT

 

The petitioner inducted as Security Guard (BPS-3) in Airport Security Force (hereinafter referred to as `ASF’), was dismissed from service, but reinstated on 22-5-2001, by the order of appellate authority.

 

2. He was again charge-sheeted on 12-10-2001, on new grounds, tried by the Summary Military Court and dismissed on 13-10-2001. This time, the petitioner’s appeal could not succeed and he was communicated rejection of appeal on 23-11-2001.

 

3. Therefore, the petitioner approached the Federal Service Tribunal but his appeal was dismissed on 6-1-2003 for lack of jurisdiction. Then he filed a petition for leave to appeal against this order before the Honourable apex Court; which was withdrawn.

 

4. Next, the petitioner instituted this writ petition which, at its inception, was dismissed on account of non-maintainability, because as per para. No.5 of the writ petition, the departmental appeal was pending. When it was pointed out in the Honourable Apex Court that the departmental appeal of the petitioner was dismissed on 12-11-2001, before institution of the writ petition, and the result was also communicated to petitioner on 23-11-2001, the matter was remanded on 26-6-2006 to this Court for deciding the petitioner’s writ petition on merits.

 

5. We have listened argument of Messrs Abdul Qayyum Sarwar, Advocate, for the petitioner and Faridullah Kundi, Advocate, for the respondents. The available record has been gone through.

 

6. It was argued for the petitioner that the petitioner’s trial held by the respondent No.1 was unauthorized, mandatory provisions of law were violated, right of cross-examination was denied to petitioner, the Presiding Officer of Summary Military Court unlawfully exercised functions of both the Prosecutor and Judge and simultaneously acted as authority and authorized officer, who took wrong assumption of law and facts. The powers were exercised under sections 7-A, 7-A(4) and 7-F of the Airport Security Force Act, 1975 (hereinafter referred as `ASF Act’) which being inconsistent with petitioner’s fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the `Constitution’) may be declared ultra vires of the Constitution, the impugned dismissal of petitioner may be declared without jurisdiction, coram non judice; mala fide, and the petitioner may be directed to be reinstated.

 

7. Conversely, it was argued that the petitioner was explicitly communicated through his appointment letter dated 1-11-1990 that he would be governed by ASF Act and Pakistan Army Act. He accepted his appointment accordingly and worked for ten years under these laws. When dismissed under the afore-said laws on 13-10-2001, he availed the remedial process of the same laws, where under he was granted the relief of reinstatement. The jurisdiction of this Court is barred under sections 7-A(4) of ASF Act to adjudicate on the issues raised by the petitioner pertaining to his dismissal. The vires of provisions of ASF Act can also not be called in question before this Court due to bar created in Article 8(3) and Article 199(3) of the `Constitution’.

 

8. We have considered the arguments delivered before us, in the light of relevant law and record. The petitioner was admittedly appointed as a Security Guard in BPS-3 vide order dated 1-11-1990, in ASF, which was constituted under ASF Act, 1975 to function under the direct Control of Ministry of Defence. Thereafter, through a statutory enactment, i.e., ASF (Amendment) Ordinance, 1984, officers and members of ASF were subjected to the provisions of Pakistan Army Act, 1952 (hereinafter referred to as PAA). The petitioner worked under these laws and when he was for the first time dismissed from service, he availed the right of appeal successfully and got himself reinstated on 22-5-2001.

 

9. Now, when tried for the second time on fresh charges his appeal was not accepted and in the present writ petition he has not only challenged his dismissal order dated 13-10-2001, but also the provisions of section 7-A, section 7-A(4) and section 7-F of ASF Act, 1975, as ultra vires of the Constitution’, being in conflict with his constitutionally guaranteed fundamental rights.

 

10. The Constitution has fixed the parameters of powers of this Court under sub-Article (2) of Article 175, explicitly envisaging exercising of only that jurisdiction which is conferred by the Constitution or by or under any law.

 

11. Indeed, Article 8 of the Constitution postulates that the State shall not make any law, which takes away or abridges the fundamental rights conferred on citizens by its Chapter-I and any law made in contravention of this Article shall, to the extent of such contravention, be void. However, sub-Article (3) of Article 8 of the Constitution’ denotes that this prohibition shall not be attracted in case of any law relating to members of 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.

 

12. Functions of `ASF’ and liabilities of the officers and members of the “Force” have been exhaustively considered by the Honourable Supreme Court of Pakistan in para. No.23 of the judgment, in the case “Force Commander ASF v. Muhammad Rashid” reported in 1996 SCMR at page 1614, vis-a-vis applicability of PAA and ouster of jurisdiction. In para.20 of this judgment, the ratio decidendi of the case of Fasihuddin, reported in 1993 SCMR at page 1, has been highlighted with the clarification that some relevant aspects of application of Army laws were not considered in Fasihuddin’s case. The relevant portion of para.20 is reproduced below:—

 

“20.

 

(i) ..

 

(ii) ..

 

However, we may point out that in the above cases inter alia the following aspects were not considered:—

 

(i) That the Act and the Army Act provide civil and criminal liabilities of the persons subject to the same, namely through departmental proceedings a person subject to the Act or the Army Act may be dismissed or removed from service or a lesser punishment may be imposed or he may be proceeded with through criminal proceedings and be imprisoned and in consequence thereof may be dismissed ‘from service.

 

(ii) That the Army Act is not only applicable to persons belonging to Armed Forces but by operation of law, it is also applicable to other persons specified in clauses (d) and (dd) of subsection (1) of section 2 of, the Army Act, quoted hereinabove in para.11; and secondly, under subsection (1) of section 5 of the Army Act, the Federal Government has been empowered by a Notification to apply all or any provisions of the Army Act to, force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government as already pointed out hereinabove. In the present case, admittedly, ASF is a force raised and maintained in Pakistan under the authority of the Federal Government. The Federal Government could have issued a Notification under above subsection (1) of section 5 of the Army Act but instead of that it made Army Act, applicable by law by enacting subsection (1) of section 7-A (which was added by the afore-said amending Ordinance, 1984) by providing that every officer and member of the force shall unless he is already so subject, be subject to the Army Act.”

 

13. In para.21 of this judgment, Honourable apex Court has held that though the status of the persons working in ASF as that of the civil servants has not ceased by the amendments in the ASF Act, but provisions of the Army Act and the Army. Act Rules have been competently made applicable to them, with reference to F.B. Ali’s case PLD 1975 SC 506. Thus, the following rules have been propounded in para.Nos.22 and 24 of the judgment, in the case of `Force Commander ASF’ (supra).

 

“22. We may state that as regards criminal liability of the employees of ASF, the provisions of the Army Act and the Army Act Rules are applicable to them by virtue of the afore-said subsection (1) of section 7-A of the Act. The same are very comprehensive which we have already referred to hereinabove in detail. It may again be pointed out that award of sentence of imprisonment may also result into dismissal from service as a consequence thereof. This dismissal cannot be equated with a dismissal from service imposed as a major penalty as a result of a departmental disciplinary proceedings.”

 

“24. We may observe that the above provisions cannot be ignored merely on the ground that the status of the personnel of ASF remains that civil servants. The provisions of the Act and the Army Act, and the rules framed thereunder, if contrary to the previsions of the Civil Servants Act and the rules framed thereunder, being special, shall prevail over the latter being general.

 

The petitioner was since convicted under a criminal charge and consequently dismissed, The Army Act was applicable to his case in the light of above noted quotations from `Force Commander ASF’s case (supra).

 

14. Apart from the above mentioned relevant dictums of Honourable Supreme Court, attracted to the focal points involved herein, the petitioner is seeking relief of getting declared section 7-A, section 7-A(4) and section 7-F of ASF Act, 1975, as ultra vires of Article 8 of the Constitution, but granting such relief has been excluded from the ambit of Article 8(1), by its sub-Article (3). Hence, this relief cannot be granted to petitioner.

 

15. The present petition has been filed by the petitioner in this Court under Article 199 of the Constitution which also contains a bar in its sub-Article (3), providing that an order shall not be passed by a High Court under sub-Article (1) of Article 199 of the Constitution, on application made by a person who is subject to any law relating to Armed Forces of Pakistan, 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 in relation to him, as a person subject to such law.

 

16. Honourable apex Court has explained in the case of Ex.Lt.-Col. Anwar Aziz v. Federation of Pakistan”, reported in PLD 2001 SC at page 549, the scope of jurisdictional bar under sub-Article (3) Article 199 of the Constitution. Its relevant paragraphs 8 and 9, at page 553, are reproduced below for ready reference:—

 

“(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 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.”

 

17. As a sequel to the afore-mentioned dictums, if we glance over the case of petitioner, we find that the petitioner was a person holding the post of Security Guard, in a `Force’ called ASF and, by operation of law, as well as by accepting precondition of his appointment, the petitioner was a person subject to the law relating to Armed Forces of Pakistan, in respect of his terms and conditions of service, matters arising out of his service, or in respect of actions in relation to him, as a person subject to that law.

 

18. The petitioner was tried and convicted in a criminal case under the Pakistan Army Act because as a Security Guard in ASF he was subject to Pakistan Army Act under section 7-A(1) of ASF Act, 1975. The action was taken against him by respondent No.1, who being Chief Security Officer of Peshawar Airport was bestowed upon the power of `Commanding Officer’ by S.R.O. No.1021(1)/84 issued under section 7-A(3) of ASF Act,` 1975 and thus was competent to hold Summary Court Martial. Record of his trial (copies at pages 35 to 44) reveals that he was charged with criminal offences under sections 47(b) and 55 of PAA which were triable by Summary Military Court, under section 99′ of the PAA, convicted, and in consequence thereof, dismissed.

 

19. So, the impugned order is neither without jurisdiction, nor coram non judice. There is nothing on record to convince us that respondent No.1 had acted with any mala fide and this element is also lacking. Moreover, as it was observed in para 6 of the- judgment of Honourable Supreme Court in Anwar Aziz v. Federation of Pakistan (ibid), the petitioner herein had also admitted to the jurisdiction of Summary Military Court and the Court of Appeal by contesting their proceedings and fully exhausting the remedy available under PAA.

 

20. It is, therefore, concluded that none of the prayer can be granted to petitioner due to bars contained in Article 4(3) and Article 199(3) of the Constitution. Reliance is placed on the case of Brig. (Rtd.) F.B. Ali v. The State reported in PLD 1975 SC page 506. The relevant portion at page 542 is quoted below:—

 

“The learned Attorney-General has contended that the words relating to in clause (3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceivable action taken in relation to even a person for the time being, subject to the Army Act as the appellants were. However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram non judice or has been taken mala fide as held by this Court in State v. Ziaur Rahman (2). On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Force. The action must, however, be one which is taken while he is so subject and not before he becomes so subject or after he ceases to be so subject.”,

 

As a corollary to above discussion, the writ petition fails. Hence, it is dismissed with no order as to costs.

 

H.B.T./105/P Petition dismissed.

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