P L D 1989 Supreme, Court 6 (PLP)

amended and new Sections 131‑A and 138‑A added. (b) Right of appeal. Needful done by adding Section 138‑A. Bond for next of kin Not done as appeal has been lodged with Supreme Court. (d) Pardon and Remission in Hadd cases: Needful done by suitably Amending Section 153. (e) Diyat and Qisas: Pended by the Federal Shariat Court itself. PAKISTAN AIR FORCE Position taken on behalf of the Pakistan Army was reiterated and Section 162‑A added providing for appeals in cases of Hadd. During the course of the hearing before us, the learned representatives of the Pakistan Army, Navy and Air Force did not seriously contest the amendments suggested in section 154 of the Army Act, 1952, Section 190 of the Air Force Act, 1953 arid section 165 of the Navy Ordinance, 1961 by the Federal Shariat Court for distributing the money taken by them from the assets of the deceased among all the Muslim heirs. Their objection merely was that difficulties would arise in implementing the directions of the Federal Shariat Court. The present provision was mostly for administrative convenience because the payment of money upto Rs.1,000 or the delivery of the property of the value thereof to the widow or the next‑of‑kin without production of probate etc. was meant to pay off regimental debts of the deceased and to meet the immediate expenditures on funeral etc, it was submitted that taking a bond from the next‑of‑kin, widow or the representative of the deceased, when the dead body is yet to be 'disposed of, particularly in field area i.e. in war conditions would defeat the very purpose for which this provision existed in the Defence service Law. We do not think that the inconvenience pointed out is of an insuperable nature. This situation can be‑ taken care of by adding a Proviso to the amended section, whereby eases of such necessity could be catered for. Thus, the only point of controversy which subsists is whether the absence of a Court of appeal to hear appeals against the conviction by the Court Martials is repugnant to the injunctions of Islam. According to section 133 of the Pakistan Army Act, 1952, appeals against the decisions of the Court Martial are barred. This section reads as follows:‑

133. Bar of Appeals.‑‑No remedy shall lie against any decision of a Court‑_Martial save as provided in this Act, and for the removal of doubt it is ‑hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a Court‑Martial to any Court exercising any jurisdiction whatever. Similar is the position in the Pakistan Air Force Act, 1953. Herein Section 162 lays down:‑‑

162. Bar of Appeals.‑‑No Court shall question the correctness, legality or propriety or any proceeding or decision of any Court‑Martial, and no remedy shall like in respect of any such proceeding or decision save as provided in this Act." Again, Section 140 of Pakistan Navy Ordinance, 1961, bars appeals to question decisions of the Naval Tribunal. This Section reads as follows:‑

140. Bar of Appeals.‑‑No Court shall question the correctness, legality or propriety of any proceedings, order, finding or sentence of any naval tribunal, and no appeal, revision or other remedy shall lie in respect of any such proceeding, order, finding or sentence save in accordance with the provisions of this Ordinance." No doubt, in the Laws governing all the three Defence Services, a remedy is provided to the aggrieved persons who are convicted by a Court‑Martial namely they may present a petition against the order to the Central Government or the. Head of the armed force concerned', and these authorities may thereupon review the finding or the sentence or the both. But this remedy cannot be equated with the remedy of appeal. Herein, the aggrieved party has not only the right to present a petition to challenge the order of which he is aggrieved but has also the right to appear before the Appellate Court and to be heard, in support of his appeal. The main objections against the conferment of the right of appeal to members of the Defence Service are, in the main, two‑‑ (a) that an appeal against conviction other than a conviction under the Hudood Ordinance will effect discipline of the armed forces personnel; and (b) that section 133 of the Pakistan Army Act, section 162 of the Pakistan Air Force Act and section 140 of Pakistan Naval Ordinance are a bar to appeals and these sections are not repugnant to any Injunction of Islam. So far as the plea of effecting the discipline of the armed forces personnel by conferment of the right of appeal is concerned, this plea seems to contradict the action taken by the Defence Force B Authorities, as they have willingly conferred the right of appeal in Hudood cases. If discipline of the armed forces will not be effected by conferment of the right of appeal in Hudood cases we do not see why it should be effected by conferment of the same right for conviction, for other serious offences? Moreover, the Defence Service Laws, namely, the Pakistan Army Act, Pakistan Air Force Act and the Pakistan Navy Ordinance are all based on Acts which were enacted by the U . K. Parliament for its own Army, Air Force and Navy. However, after the Second World War, Courts of Appeal have been established in the United Kingdom. whereby the right of appeal has been granted to Members of the Defence Forces convicted by the Court‑martial [see Court‑martial (Appeals) Act, 1951. This has been further amended by the Court‑martial (Appeals) Act, 1968 which provides for an appeal from the Court‑martial Appeals Courts to the House of Lords]. Similarly, in the United States of America, the Courts of Military Review and Courts of Military Appeals have been set up. Section 2631 of the American Jurisprudence (2nd Edition) may be reproduced here as it explains the raison d etre for establishing the Courts of Military Appeals and provides some details for its composition and functions: ‑

263. Court of Military Appeals..‑‑ When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals so that disinterested civilian judges could gain a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces. Thus with the enactment of the Uniform Code of Military Justice in 1950, Congress established a Court of Military Appeals, which is located for administrative purpose, in the Department of Defence. The Court consists of three judges appointed from civil life by the President, by and with the advice and consent of the Senate, for a term of 15 years. Not more than two of the judges may be appointed from the same political party and each judge must be a member of the bar of a Federal Court or the highest Court of a State. Each Judge is entitled to the same salary and travel allowance .5 as provided for judges of the United States Court of Appeals and is eligible for re‑appointment. The judges may be removed by the President for neglect of duty or malfeasance in office, or for mental or physical disability, and for no other cause. The proceedings of the United States Court of Military Appeals are published in the United States Court of Military Appeals Re ports. The Court of Military Appeals reviews the record in all cases in which the sentence affects a general or flag officer or extends to death; all cases reviewed by a Court of military review which the Judge Advocate‑General orders are sent to the Court of Military Appeals for review; and all cases reviewed by a Court of military review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review. An appeal by the accused must be taken within 30 days from the time he is notified of the decision of a Court of Military review, and the Court of Military Appeals must act upon a petition for appeal within 30 days of the receipt thereof. The Court of Military Appeals can take action only with respect to matters of law." We, therefore, agree with the view of the Federal Shariat Court that if there had been any danger of indiscipline in the Army by the setting up of appellate Courts, the laws passed in these countries for establishing such appellate , Courts providing for appeals against the decisions of Court‑martial would not have been enacted in the United Kingdom and the United States of America. In fact, these two countries have gone to the extent of appointing civilian Judges for hearing appeals against the orders of Courts Martial. But we would not express any opinion on that point and consider that! even if the Courts of Appeal provided for hearing appeals against' the decisions of the Court‑martial, who are sentenced to Hadd under the Islamic Law, are empowered to hear appeals against the convictions for other serious offences, the defect would stand removed. As far as the question that the provisions barring the right of appeal in the Defence Service Laws are not repugnant to the b Injunctions of Islam is concerned, we cannot agree, This Court has held that the Islamic Injunctions of Adal, Qist and Ehsan warrant that an aggrieved party should be entitled to test the correctness of a decision which results in deprivation of his livelihood. See Federation of Pakistan and others v. Public at Large (P L D 1988 S C 202) wherein the validity of certain provisions of the West Pakistan Press and Publications Ordinance (XXX of 1963) including the provisions therein which did not permit an aggrieved party the right of appeal was considered and it was held that the said provisions were against the injunctions of Islam and must be amended and the right of appeal provided. The need for testing the correctness of a decision which results in deprivation of liberty and also livelihood would obviously be greater. This Court's decision in Federation of Pakistan and others v. Public at Large (P L D 1988 S C 202) has been re‑affirmed in Federation of Pakistan v. The General Public (Shariat Appeal No.17 of 1984 decided on 17‑1‑1988) and it was observed:‑‑ "Ana indeed the harshness in similar provisions of west Pakistan press and Publications Ordinance XXX of 1963, was removed by the Court in the same judgment. Remedial measures were ordered." The Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulafa‑e‑Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation thereof. The plea, thus, that barring the right of, appeal does not offend against the injunctions of Islam, cannot, be accepted. In the result, the provisions of Section 133 of Pakistan Army! Act, Section 162 of Pakistan Air Force Act and Section 196 of Pakistan, Navy Ordinance must be held as repugnant to the Injunctions of Islam and, therefore, void. The appellant is, accordingly, directed to suitably amend Section 133‑A of the Pakistan Army Act, 1952; Section 162‑A of the Pakistan Air Force Act, 1953; and Section 138‑A of the Pakistan Navy Ordinance, 1961 by providing a right of appeal against the orders passed by the Court Martials, except for petty offences as discussed above. The necessary amendments shall be carried out by 1st January, 1989 in Sections 133‑A of Pakistan Army Act 1952; Section 162‑A of Pakistan Air Force Act, 1953 and Section 138‑A of Pakistan Naval Ordinance 1961 in the terms indicated above The appeal is disposed of in the above terms, leaving parties to bear their own costs. A.A./P-64/S Order accordingly.