2005 PLP (C (PLC(CS))

(b) Interpretation of Statutes

Ouster clause in the Statute had to be strictly construed and was to be followed firmly. Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref. Col. Rtd. Muhammad Akram for Petitioner. The petitioner was discharged from the Army service on 8-4-2003, where he was posted as Havaldar, after inquiry and hearing by the competent authority, on the ground of indiscipline. Charge against the petitioner was that while he was in service as Havaldar in 132-Medium Regiment Artillery, during his posting at Gun No.3 installed near village Rukhay, he chased and teased the girls of the village, passing near-by his gun position. The allegation of improper exchange of letters with one of the girls of the village was also reported to the Commanding Officer who took cognizance of petitioner's irresponsible and undisciplined conduct. Considering the sensitive nature of the incident a proper "Court of inquiry" was conducted to ascertain the facts and during these proceedings, he was given full hearing. The petitioner is reported to have admitted the charge before the competent authority but pleaded that it is not indiscipline. Ultimately he was discharged from the service whereafter he filed the instant petition with the prayer that his removal from Army service may be declared illegal, void and of no legal consequence.

3. The respondents have filed their report and parawise comments ill compliance to order dated 15-1-2004, urging bar of jurisdiction of this Court to adjudicate upon the controversy in view of the provisions of Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973.

4. Heard. Record perused. Undeniably the petitioner was removed from Army service after a thorough probe/inquiry by the competent authority on the basis of report of the Court of inquiry and in A this view of the matter bar contained in Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973 is fully attracted. For ready reference, this provision of the Constitution is reproduced as follows:-- "(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, 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 taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."

5. I have not been shown as to how the order impugned in the writ petition is without jurisdiction. The petitioner was subject to the Army Act 1952 whereunder the proceedings were competently taken against him, providing full opportunity of hearing. The Honourable Supreme Court has graciously mandated that matter relating to member of the Armed Forces, involving their terms and conditions of service or in B respect of any action taken in relation to member of Armed Forces or a person subject to the Pakistan Army Act, 1952, jurisdiction of the High Court was completely barred under Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973. This view was graciously taken by the Honourable Supreme Court in the case of Ex-Lt. Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others (PLD 2001 SC 549). It is settled law that ouster clause in any statute has to be strictly construed and is to be followed firmly. Reference in this behalf can be made to the case of Federation of C Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) and Muhammad Mushtaq v. Federation of Pakistan (1994 SCMR 2286). In view of the binding dictum of the Honourable Supreme Court I am constrained to hold that in view of ouster clause of Article 199 (3) of the Constitution, the petition in hand is not competent. Even otherwise it raises disputed questions of facts which cannot be set to rest, without recording of evidence but this course is not permissible in the Constitutional jurisdiction of this Court, in view of the law laid down by the Honourable Supreme Court in the case of Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618). It goes without saying that a lawful view formed by the competent authority within the allocated ambit of authority cannot be substituted by this Court, thus this petition is bound to fail and is accordingly dismissed in limine. H.B.T./R-75/L Petition dismissed.