2001 P Cr (PLP)

(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-A, 123-A 124-A, 143, 144, 147, 147, 148, 152, 153-A, 188, 193, 224, 225, 283,. 302, 304, 307, 325, 326, 332, 342m, 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 coconut, 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 ofr 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 or 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 belong 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. " "

7. Power to declare persons to be on active service.

Notwithstanding anything contained in clause (1) of section 8, the Federal Government may; by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act." The perusal of the above provisions of law reveals that the Courts created under general or local law cannot take cognizance against the member of any Law Enforcing Agency. The section 139, P.P.C. further envisages that the persons subject to Army Act cannot be punished under Pakistan Penal Code. In this context the section 139, P.P.C. is repoduced hereinbelow in extenso:-- "

139. Persons subiect to certain Acts.

,No person subject to the Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953), or the Pakistan Navy. Ordinance, 1961 (XXXV of 1961), is subject to punishment under this Code for any of the offences defined in this Chapter. " The upshot of the above discussion is that the jurisdiction of this Court as well as of the subordinate Courts for the trial and punishment of the persons subject to Army Act, 1952 is barred by law. Therefore, the remedy could only be exhausted at the proper forum provided under law. It is well settled that the Constitutional jurisdiction is a discretionary one and is intended to administer the cause of justice and not to promote and encourage injustice. The exercise of Constitutional jurisdiction in the matters where factual controversies are involved between the parties would not be justified. There is nothing on the record which could show or suggest that the concerned authorities were moved for action against the members of Law Enforcing Agencies who, were subject to Army Act, 1952. The averments made in the petition and the pleas raised in the comments filed by the respondent are extremely controversial and disputed. Consequently, the present Constitutional petition is misconceived and stands dismissed with no order as to costs. N.H.Q./M-122/K Petition dismissed.