P L D 1961 Supreme Court 52 (PLP)

Notice was given to the respondents of this petition and at the next date of hearing the two documents were shown to the respondent No. 1, who did not question the authenticity of either of them and further admitted the document No. 2 and endorsed it. The Signal of the 23rd September 1953, which was produced before the High Court, runs thus :- "To :???? 975 P. G. ??????? FROM N.H.Q.(P) C.M.H, KARACHI WILL BE TAKEN OVER BY R. P. N. ON TWENTY FIFTH SEPTEMBER(.) HOSPITAL IS TO BE KNOWN AS ROYAL PAKISTAN NAVY HOSPITAL KARACHI AND IS TO FUNCTION AS AN INDEPENDENT SELF-ACCOUNTING ESTABLISHMENT( )

2. SURGEON COMMANDER A. N. ANSARI R. P. N. IS APPOINTED COMMANDING OFFICER ROYAL NAVAL HOSPITAL (.) HE IS TO EXERCISE POWERS OF COMMAND OVER ALL PERSONNEL BORNE ON THE BOOKS OF R.P.N.H. KARACHI(.)

3. APPOINTMENTS OF OTHER MEDICAL AND NURSING OFFICERS FOLLOW (.) D.T.G. 231123 DE 23-9-53" The amendment produced at the hearing of the appeal before us is as follows :- "FROM??????????? N.H.Q.(P)??????? TO:????? 056 P.G. FOLLOWING IS AN AMENDMENT TO 975 P. G. of SEPTEMBER 1953. AT THE END OF FIRST SENTENCE ADD QUOTE `AND COMMISSION AS HER MAJESTY'S PAKISTANSHIP' UNQUOTE 221505 22-5-1954" The only point raised with regard to these Signals on behalf of the respondent No. 1 in this appeal is that it is only the Governor-General under section 232 of the Government of India Act, 1935 who could put ship in commission and the Commander-in-Chief of the Navy could not do it. On a reading of section 232 we think that the power mentioned therein relates to the raising and maintaining the personnel of the Naval, Military and Air Forces in subsection (1) and also to granting commissions etc. to persons in subsection (2). It does not reserve to the Governor-General the power to put a ship in commission which, not being a power exclusively reserved for him, could be exercised by an appropriate authority, and the two Signals must be taken to have been issued under proper authority. Thus the shore Hospital must be taken to be a ship in commission at least after the 22nd May 1954. The case, therefore, comes under section 87 of the Pakistan Navy (Discipline) Act, First Schedule, as it stood at the time of the trial by the Court Martial, which was as follows :- "Every person in or belonging to His Majesty's Navy, and borne on the books of any one of His Majesty's ships in commission and every member of the Pakistan Naval Reserve Forces to the extent specified in section 4 of the Pakistan Naval Reserve Forces (Discipline) Act, 1939, shall be subject to this Act ; and all other persons hereby or by any other Act made liable thereto shall be triable and punishable under the provisions of this Act." The second document that has been produced before us, which bears the heading `Royal Pakistan Navy Re-engagement for Continuous Service', contains a number of questions to be put to a candidate before enrolment. Question No. 20 in this document is as follows "Are you aware that after enrolment you will be subject to the Naval Discipline Act as modified by the Indian Navy (Discipline) Act, 1934, and the rules, instructions and regulations for the R. P. N. in force from time to time?" The answer to this question given by the respondent No. 1 is Yes, and he signed this document on the 26th August 1950 undertaking to serve for ten years active plus ten years F/R. With regard to this document it was urged that as there is no explicit undertaking given in the document to be governed by the Act, it does not come under section 90 of the First Schedule to the Pakistan Navy (Discipline) Act, 1934. Section 90 (1) runs thus : "90(1)-If any person who would not otherwise be subject to this Act enters into an engagement with the Central Government to serve His Majesty

(a) in a particular ship, or (b) in such particular ship or in such ships as the Officer Commanding of the Pakistan Navy or any Officer empowered in this behalf by the Officer Commanding the Pakistan Navy may from time to time determine, and agrees to become subject to this Act upon entering into the engagement, that person shall so long as the engagement remains in force, and notwithstanding that for the time being he may not be serving in any ship, be subject to this Act, and the provisions of this Act shall apply in relation to that person, as if, while subject to this Act, he belonged to His Majesty's Navy and were borne on the books of one of His Majesty's ships in commission." ??????????? In view of the language of this section we are unable to accept this argument, as the document is a document of re-engagement, in which conditions of service were put to the candidate by way of notice to him in the form of questions, to which answers given by him were recorded and signed by him. We, therefore, hold that even if the first document is left out of consideration the present case is fully covered by section 90 (1) of the First Schedule to the Pakistan Navy (Discipline) Act, 1934. It is not necessary for us for the decision of this case to consider the amendments to the Pakistan Navy (Discipline) Act, 1934, by the amending Acts II of 1956 and VIII of 1957, as they were not in force when the trial by Court Martial was held and concluded. Another point, which does not appear to have been pressed before the High Court, was raised before us that in any event under section 53(9A) to the First Schedule of the Act the sentence in excess of two years is without jurisdiction. There is no substance in this point, as the offences charged against the respondent No. 1 were offences punishable by ordinary law and under section 45 of the said Schedule the Court Martial could award the same punishment as an ordinary Criminal Court could do. In the result this appeal is allowed, the order of the High Court is set aside and the writ issued is hereby recalled. K. B. A. ????????? Appeal accepted.