2004 PLP (C (PLC(CS))

Dr. Ehsan‑ul‑Haque Khan for appellant. Muhammad Aslam Awais, Distt, Attorney for Respondent. Date of hearing: 18th September, 2002. SHAFQAT ALI HIJAZI (MEMBER)‑‑‑Through this single judgment, I intend to dispose of Appeals Nos.2194 of 2001, 2195 of 2001, 150 of 2002 and 299 of 2002, as they involve common question of fact arid of law.

2. A case F.I.R. No. 10/84 was registered with PS, D.A.C.E. Lahore (Director, Anti‑Corruption Establishment, Lahore) against 15 persons including the appellants under sections 409/420/218/109, P.P.C. read with 5/2/47 P.C.A. The case was tried by the Summary Military Court No. 37 and they were awarded different punishments by President, Summary Military Court No.37. Against this conviction, Writ Petition No.676/89 was also filed by appellants Abdul Sattar, Sheikh Muhammad Umar and Pervaiz Akhtar and others. Meanwhile another Writ Petition No.5233 of 1992 was filed. Both the Writ Petitions were decided on 23‑1‑2001 by the Division Bench of the High Court and vide para 7 of the judgment, it was held that alleged offences having been committed, beyond 3 years, the trial of petitioners was violation of Army Act. The appeals were accepted and their convictions were set aside being without lawful authority and of no legal effect. Men while the appellants after conviction were proceeded against by the department. A show‑cause notice was issued to them which were served to them in jail but they did not reply to the show‑cause notice. Hence ex parte proceedings were carried out and they were dismissed from service on 5‑5‑1985 by the Superintending Engineer on the basis of conviction. After acquittal from the Court they filed departmental appeal for reinstatement in service which was rejected on 20‑10‑2001. Hence these appeals were filed.

3. Arguments heard. Record perused. Departmental representative and District Attorney have retied upon that ex parte proceedings were carried out against them and then appeals are time‑barred and are not maintainable, against the orders of dismissal from service dated 5‑5‑1985. On the other hand learned Counsel has relied upon the decision of the High Court dated 23‑1‑2001 by which the trial by the Summary Military Court was held to, be unlawful. The appellants could not file appeals against dismissal in the presence of conviction as they had no genuine grounds. After their acquittal and declaring the trial illegal, the cause of action arose. 'They filed appeals which were rejected being time‑barred. The very ground on which they were dismissed from service has been. declared unlawful by the High Court against which no appeal has been filed by, the department. Therefore, the order of the High Court has attained finality. After this order the grounds of dismissal has been cancelled, therefore, their dismissal does riot stand. As a matter of fact after the orders of the High Court, department should, have taken the action as the, cause of action was removed but department did not.

4. Therefore, by the above discussion at present no allegation stand against them. The appeals are accepted. The, impugned orders dated 5‑5‑1985 and 20‑10‑2001 are set aside. The appellants reinstated in service. The intervening period shall be treated as leave of the kind duet to them. H.B.T./7/PST Appeals accepted.